author: SAM NUCHIA, Justice.

text:
    Clara HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00177-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 16, 2004.

      George McCall Secrest, Jr., Bennett & Secrest, L.L.P., Ken J. McLean, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, Kevin P. Keating, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice . RADACK and Justices TAFT and NUCHIA.
   OPINION

SAM NUCHIA, Justice.

A jury found appellant, Clara Harris, guilty of murder, found in one special issue that appellant caused the death under the immediate influence of sudden passion arising from an adequate cause, and assessed punishment at confinement for 20 years and a $10,000 fine. In seven points of error, appellant challenges the trial court’s rulings excluding two videotapes from evidence, disallowing the impeachment of a witness, refusing to give an instruction on reckless driving, and denying appellant’s request to make the opening and closing arguments at the punishment phase of the trial. We affirm.

BACKGROUND

The Incident

On July 24, 2002, appellant was notified by a private investigator, whom appellant had hired, that her husband, the complainant David Harris, and Gail Bridges had checked into the Nassau Bay Hilton Hotel. Shortly thereafter, appellant and her stepdaughter, Lindsey Harris, drove to the hotel. The person at the front desk told them that neither David Harris nor Bridges was registered with the hotel. Appellant and Lindsey walked to the parking lot and found Bridges’s Navigator. Appellant scratched the Navigator with a key, ripped the rear-window wiper off and bent the front window wipers. Appellant and Lindsey each called the complainant on his cell phone and told him that one of his children was ill. They waited near the hotel entrance until they saw the complainant and Bridges leave a hotel elevator holding hands. Appellant confronted Bridges and a struggle ensued in the hotel lobby between the two women. Hotel employees broke up the fight and escorted the parties to them vehicles.

After getting into her car, a Mercedes S4S0, appellant, with Lindsey in the passenger seat, backed out and then accelerated, squealing her tires, and proceeded to the back parking lot area where the complainant’s and Bridges’ cars were parked. Appellant drove toward Bridges’ Navigator, approaching the rear of the Navigator from the passenger side, and then made a right turn into the open parking space next to the Navigator on the driver’s side. Appellant’s car struck the side of the Navigator at the rear and damaged the right side of appellant’s car. The driver’s door of the Navigator was open, and Bridges was standing inside the door. The complainant was standing to the left of the door in the empty parking space, although his exact location is unknown, and appellant struck the complainant with her car. Either the complainant became airborne or his body was carried on the hood of the Mercedes as appellant drove over two curbed, grassy medians that separated the rows of parking spaces. The complainant’s body landed or was deposited on the paved area of the parking lot next to the second grassy median approximately 65 feet from where he had first been hit, and appellant drove over the body. At the time of the incident, the parking lot was nearly empty.

A videotape of somewhat poor quality, taken by the private investigator, shows that the Mercedes made at least two 360-degree turns in this area of the parking lot. The first circle was wide, followed by a noticeably sharper circle. Appellant then made one more half-circle and stopped the car next to the complainant’s body. The Nassau Bay Police, upon arriving on the scene, summoned emergency medical service and then transported appellant to the police station.

The Trial

In addition to Lindsey Harris, six eyewitnesses — Evangelos Smiros, the hotel manager; Paul Garrett Clark, the front desk manager; Jose Miranda, the night manager; and three tennis players who were on the nearby courts: Ashok Moza, Chris Junco, and Oscar Torres — testified at tidal that appellant had driven over the complainant’s body multiple times while circling in the back parking lot. Their testimony differed in certain details. Smi-ros testified that appellant ran over the complainant’s body three times; Clark testified that appellant ran over appellant three times and then backed up over him for a fourth time. Miranda testified that appellant ran over the body two times. Moza testified that the Mercedes twice ran over what he initially believed to be a duffel bag, but that, upon approaching the scene, “it turned out to be a human being.” Junco testified that he saw appellant drive over the complainant three times. Torres testified that he saw the Mercedes round the corner of the Navigator, and, when it reappeared, the Mercedes and the complainant’s body were “flowing” together, and appellant then ran over the complainant’s body three times.

Appellant’s expert witness, accident re-constructionist Steve Irwin, testified during a Daubert hearing and at trial that appellant could only have run over the complainant once after initially hitting him as he was standing by the Navigator. He further testified at trial that appellant, as she came around the Navigator, would not have had enough time to stop before striking the complainant. To support this claim, appellant offered into evidence two videotapes, Defendant’s exhibits 37 and 38, made by Irwin.

Defendant’s exhibit 37 re-created the route driven by appellant on the night in question. This exhibit was a live-action videotape depicting the route appellant drove after leaving her parking space in the front parking lot of the Nassau Bay Hilton, going around the Black Navigator, striking the complainant, and then continuing on for the two-and-a-half 360 degree turns in the empty parking lot area before coming to a complete stop. To represent the complainant, Irwin placed a person behind the partially open driver’s door of a black Navigator with his back to the camera. The videotape purported to show appellant’s viewpoint from the driver’s seat. The videographer sat in the middle of the backseat of a rented Mercedes S430. Irwin conceded at the Daubert hearing that the driver would have had a better view of events than the videotape showed. Irwin further testified that the speed of the car in the videotape did not match that of appellant’s Mercedes on the night in question because he did not want to damage the undercarriage of the rented Mercedes.

Defendant’s exhibit 38 was a virtual reality re-creation of appellant’s route in the parking lot, making use of computer animation, simulation, and the videotape taken by the private investigator. Irwin used measurements taken by the police and hundreds of his own measurements in constructing the videotape to buttress his theory that, given the final resting place of the complainant’s body and the location of a blood stain beside the body, appellant ran over the complainant only once. This videotape omitted any model or dummy to represent the complainant. Instead, Irwin placed an “X” to mark the bloodstain that was found near the body. Irwin testified that the Mercedes never drove through the bloodstain. After conducting a Dau-bert hearing, the trial court excluded exhibits 37 and 38 from the evidence.

During the guilt-innocence phase of the trial, appellant testified in her own defense about the night in question. She testified that she wanted to hit the Navigator and maintained that she never intentionally hit the complainant. She testified as follows:

Q: [Defense Counsel]: At the time you intended to hit the Navigator, did you know where David and Gail were?
A: No.
Q: Did you see them at that time—
A: No.
Q: —as you rounded the corner?
A: No
Q: Did you intend to hit David with your car?
A: No
Q: Did it ever dawn on you that there might be people on [the driver’s] side of the Navigator, as you rounded the corner to hit the automobile?
A: No.
Q: [Prosecutor]: Did you hit David with the car?
A: I didn’t see hitting him with the car. I saw him running to the left, and I kept looking at him running.
Q: Well, let me interrupt you because didn’t you tell — you’re telling us now that you didn’t see that you had hit him?
A: Yes.
Q: So you are saying when you first hit him, the initial impact, you’re saying it’s an accident, despite the fact that you told the police that you wanted to separate him from her and that you wanted to hurt him? You are now saying today in this courtroom that it was an accident, despite the statements that you made to the police?
A: I know it was an accident.

Lindsey Harris, the only witness in the car with appellant, testified as to her recollection about events that night and answered questions concerning the wrongful death lawsuit she had filed against appellant. The relevant parts of her testimony are as follows:

Q: [Prosecutor]: When the defendant saw your dad standing [next to the Navigator with] Gail Bridges, did she say anything?
A: Yes.
Q: What did she say?
A: “I’m going to hit him.”
Q: And when she said, “I’m going to hit him,” how did she say it?
A: Like, that’s what’s going to happen. She was very determined, that’s what was going to happen, that’s what she was going to do.
Q: [Defense counsel]: And you mentioned that — and I think it was when Clara goes into the hotel after the elevator door opens, you described [Clara Harris] as, “She was evil, there was an evil look on her face”?
A: Yes.
Q: Is that right?
A: Yes.
Q: Did any of the lawyers with the wrongful death lawsuit suggest to you that that might be a good word to use?
A: No
Q: Do you remember having a conversation with Christina at your grandparent’s house?
A: About what?
Q: Do you remember having a conversation with Christina at Clara’s house?
A: I’ve talked with Christina a lot of times at Clara’s house.
Q: Did you have a conversation with Christina at any time, say, for instance, two days after your dad’s death?
A: Yes.
Q: And did you talk with Christina about the role of the civil lawyers in this case?
A: No.

At trial, defense counsel attempted to impeach Lindsey by calling Christina Fon-dren, who testified as follows:

Q: Did you have an occasion to have a conversation with Lindsey Harris?
A: Yes.
Q: Did Lindsey Harris tell you anything about lawyers?
[Prosecutor]: Objection, hearsay.
[Defense counsel]: Your honor, we would go—
The Court: Sustained.
[Defense Counsel]: We would go on prior inconsistent statements.
The Court: Ask another question.
Q: [Defense Counsel] Did you have a conversation with Lindsey Harris about attorneys that she and her family had hired to represent her relative to this matter?
A: Yes.
Q: Did Lindsey tell you that the attorneys had instructed her to get her story straight?
[Prosecutor]: Objection. It’s double hearsay and—
The Court: Sustained.
Q: Did Lindsey Harris tell you that she had seen her father as the Mercedes came around the corner of the Navigator?
[Prosecutor]: Objection, Judge. This is not an inconsistent statement.
The Court: Approach the bench.

The trial court ruled that Lindsey had been impeached when Christina Fondren had contradicted her testimony by testifying that a conversation regarding the role of the civil lawyers in the instant case had indeed taken place. The court further stated that it would sustain the State’s objection as to the further specific questions regarding Christina Fondren’s conversation with Lindsey because Lindsey had not had an opportunity to admit or deny those statements.

After both sides had rested, appellant requested an additional jury charge on the lesser included offense of reckless driving. The trial court denied this request. At the punishment hearing, appellant asked to make both the opening statement and the closing argument, arguing that she had the burden of proof on the issue of sudden passion and was therefore entitled to open and close. The trial court denied this request.

DISCUSSION

I. Exclusion of Defendant’s Exhibits 37 and 38

In her first two points of error, appellant contends that the trial court abused its discretion by excluding from evidence Defendant’s exhibits 37 and 38. Appellant argues that the videotapes were made using valid scientific principles, the videotapes are relevant, there is a trend toward admitting relevant and rehable demonstrative evidence, and the trial court’s stated reasons for excluding the videotapes are invalid.

Before ruling on the admission or exclusion of the videotapes, the trial court recognized the validity of the field of accident reconstruction and Irwin’s qualifications as an accident reconstructionist. The trial court also stated that the evidence being offered was relevant to the case. The court then expressed its reservations about the reliability of the two videotapes and stated the following:

I have serious reservations not only about the reliability of those, but in how they may mislead the jury for a number of reasons. I mean, one, to use the sanitized phrase “pedestrian,” one omits any pedestrian, and the other inserts a pedestrian in an arbitrary position and we don’t know whether it’s accurate or not. Admittedly, the speeds are not necessarily accurate, the perspective of the camera that’s shown, as if it’s the person inside the vehicle and driving the vehicle, is confusing, to say the least, if not misleading.
There is no body and the defense rightly pointed out they avoided trying to re-create and confuse by having a body flying through the air or not in a certain way that would be misleading. On the other hand, we don’t have a body at all. Occasionally, we see a blood — a marker for a bloodstain that probably is several inches. I’m not sure of the exact dimension, but I think inches would be a legitimate description as opposed to a 5-foot 9-inch body that obviously was out there somewhere on the ground. I’m not sure where.
But given all of those things combined, I feel like, in weighing the probative value against any unfair prejudice, the danger of misleading and confusing the jury by the admission of Defendant’s Exhibits 37 and 38 outweighs the probative value. Therefore, I’m not going to permit those to be shown to this jury.

The standard of review for a trial court’s admission or exclusion of evidence is abuse of discretion. Spradlin v. State, 100 S.W.3d 372, 381 (Tex.App.-Houston [1st Dist.] 2002, no writ). A trial court must be given wide latitude in its decision to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992). As long as the trial court’s eviden-tiary ruling was at least within the zone of reasonable disagreement, an appellate court may not disturb it. Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). There should be “reluctance on the part of an appellate court to reverse trial court decisions which admit or exclude evidence.” Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990).

The specific issue before us is whether the trial court’s exclusion of Defendant’s Exhibits 37 and 38 falls outside the zone of reasonable disagreement, thus rendering the court’s ruling an abuse of discretion.

The Rule 403 Balancing Test

Relevant evidence can be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403; Montgomery, 810 S.W.2d at 377. Here, the trial court was concerned that the inaccuracies represented in the videotapes would be misleading and confusing to the jury.

Appellant conceded that the speed of the rented Mercedes and the perspective of the camera in the center of the backseat in Exhibit 37 were not accurately depicted. Irwin also testified that he did not know the exact position of the complainant as he stood near the open Navigator door, although Exhibit 37 showed a person purporting to represent the complainant standing inside the open door.

Exhibit 38 purportedly established that the complainant was run over only once by demonstrating that the Mercedes never drove over the blood stain. However, Irwin testified that the bloodstain resulted from the last time the Mercedes ran over the complainant, whether that last time was the first run-over or the second or the third. The trial court was also concerned that the omission of a body near the bloodstain would be misleading and confusing to the jury. We note that the issue here is not whether appellant ran over the bloodstain, but whether she ran over the complainant’s body more than once.

We conclude that the trial court’s exclusion of Defendant’s Exhibits 37 and 38 on the basis that they would be misleading and confusing to the jury falls within the zone of reasonable disagreement. Accordingly, we hold that the trial court did not abuse its discretion in excluding the two videotapes. We overrule appellant’s first and second points of error.

II. Constitutional Violations

In her third and fourth points of error, appellant contends that the trial court violated her rights under the Sixth and Fourteenth Amendments by excluding Defendant’s exhibits 37 and 38, thereby precluding her from presenting a complete defense.

In Gilmore v. Taylor, the United States Supreme Court stated that a defendant must have an opportunity to put on a meaningful defense. 508 U.S. 333, 343, 113 S.Ct. 2112, 2118, 124 L.Ed.2d 306 (1993). The exclusion of evidence by a trial court can rise to the level of a constitutional violation. Potier v. State, 68 S.W.3d 657, 659 (Tex.Crim.App.2002). However, erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional right to present a meaningful defense. Id. at 663.

In Potier, the Court of Criminal Appeals canvassed federal court opinions to gauge the different standards those courts applied in determining whether the exclusion of evidence amounted to a constitutional violation. See id. at 662-63 n. 31. “One court has held that a trial court’s exclusion of evidence must effectively prevent a defendant from advancing his defensive theory before rising to the level of a due-process violation.” Id. at 663 (citation omitted). The Court of Criminal Appeals also cited another federal circuit court which held that the exclusion of self-defense testimony constituted constitutional error because such exclusion precluded the defendant from presenting to the jury critical evidence regarding her state of mind during the killing. Id. at 663-64 (citing DePetris v. Kuykendall, 239 F.3d 1057, 1062-63 (9th Cir.2001)).

The exclusion of Defense Exhibits 37 and 38 did not constitutionally impair appellant’s opportunity to present a complete defense. “A defendant’s right to present relevant evidence is not unlimited, but rather subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413 (1998). The exclusion of evidence at criminal trial does not violate an accused’s ability to put on a complete defense unless the exclusion is arbitrary. See id.

Here, the trial court allowed the defense’s expert to testify as an accident reconstruction expert. Irwin also testified regarding the essential and critical aspects of appellant’s defense (1) that she did not intentionally hit the complainant as she rounded the corner of the Navigator and (2) that she only ran over the complainant once. Furthermore, a substantial number of charts and drawings illustrating Irwin’s theories were admitted into- evidence. These exhibits included Defendant’s exhibits 30 through 35, which are posters illustrating Irwin’s opinion of the movement of appellant’s Mercedes as it circled in the parking lot. The exclusion of the videotapes simply precluded appellant from introducing evidence in a format that the trial court considered to be misleading and confusing. The substance of appellant’s argument was presented to the jury, and the exclusion of the videotapes did not prevent appellant from putting on a complete defense.

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

III. Impeachment by Prior Inconsistent Statements

In her fifth point of error, appellant claims that the trial court erred by disallowing her attempt to impeach Lindsey Harris with prior inconsistent statements.

Rule 613(a), which governs the impeachment of a witness with prior inconsistent statements, provides in pertinent part:

In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told of the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement.

Tex.R. Evid. 613(a). Thus, before a witness may be impeached, she must be informed of the statement’s content, the time and place at which it was made, and the person to whom it was made. Flores v. State, 48 S.W.3d 397, 404 (Tex.App.Waco 2001, pet. ref'd). If the impeaching party does not lay a proper predicate, the prior inconsistent statement should not be admitted. Moore v. State, 652 S.W.2d 411, 413 (Tex.Crim.App.1983).

Whether the trial court ruled correctly in precluding appellant’s trial counsel from further impeaching Lindsey turns on whether counsel laid the requisite predicate for the question: “Did Lindsey tell you that the [civil] attorneys had instructed her to get her story straight?”

When asked by defense counsel whether she had talked with Christina at Clara’s house, about two weeks after the incident, concerning the role of civil lawyers in coaching Lindsey’s testimony in the instant case, Lindsey said, “No.”

Defense counsel called Christina Fon-dren as a witness, and Christina testified that she had had a conversation with Lindsey about attorneys whom Lindsey and her family had hired to represent her. The trial court sustained the State’s objection to defense counsel’s follow-up question, “Did Lindsey tell you that the attorneys had instructed her to get her story straight?” Appellant had not laid the proper predicate to that question by asking Lindsey if she had told Christina that the attorneys had given her such an instruction. Therefore, the question was an improper attempt to impeach Lindsey.

We hold that the trial court did not err in sustaining the State’s objection to appellant’s attempted impeachment. We overrule appellant’s fifth point of error.

IV. Lesser Included Offense of Reckless Driving

In her sixth point of error, appellant contends that the trial court erred by refusing to instruct the jury on the lesser included offense of reckless driving. The State charged appellant with murder by intentionally and knowingly causing the death of David Harris by striking him with a motor vehicle.

Article 37.09 of the Code of Criminal Procedure outlines the circumstances under which a defendant is entitled to a jury instruction on a lesser included offense as follows:

An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(8) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex.Code CRIm. PRoc. Ann. art. 37.09 (Vernon 1981).

To determine whether a defendant is entitled to lesser included offense instruction, a two-pronged test applies: (1) the lesser included offense must be included within the proof necessary to establish the offense charged and (2) some evidence must exist in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser included offense. See Wesbrook v. State, 29 S.W.3d 108, 113 (Tex.Crim.App.2000) (stating basic test for when defendant is entitled to instruction on lesser included offense).

A person commits an offense of reckless driving if the person: (1) drives a vehicle; (2) in wilful and wanton disregard; (3) for the safety of persons or property. See Tex. Transp. Code. Ann. § 545.401(a) (Vernon 1999). Wilful and wanton disregard as applied to reckless driving means deliberate and conscious indifference to the safety of others. Benge v. State, 94 S.W.3d 31, 36 (Tex.App.-Houston [14th Dist.] 2002, pet. ref d).

A person commits an offense of murder if the person intentionally or knowingly causes the death of an individual or if the person intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen.Code Ann. § 19.02(b)(l)-(2) (Vernon 2003) (emphasis added). A person commits an offense of manslaughter if the person recklessly causes the death of an individual. Tex. Pen.Code Ann. § 19.04 (Vernon 2003).

Even assuming, for the sake of argument, that the evidence could have established that appellant drove her vehicle, not with the intent to kill or to cause serious bodily injury, but in wilful and wanton disregard for the safety of the complainant, it is uncontested that the complainant died as a result of appellant’s actions. Therefore, the jury could not rationally have found that appellant was guilty only of the' offense of reckless driving. See Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim.App.1999) (stating that when one recklessly causes death of another, offense is manslaughter).

We overrule appellant’s sixth point of error.

V. Opening and Closing Arguments

In her seventh point of error, appellant contends that the trial court erred in refusing to allow defense counsel to make the opening and concluding arguments at the sentencing phase of the trial because section 19.02 of the Penal Code places the burden of proof on the defense to establish “sudden passion arising from an adequate cause” by a preponderance of the evidence. See Tex. Pen.Code Ann. § 19.02(d) (Vernon 2003). To support this contention, appellant relies wholly on her attempt to distinguish Martinez v. State, 501 S.W.2d 130 (Tex.Crim.App.1973).

In Martinez, the defendant contended that, because he had the burden of proof concerning his affirmative defense of insanity, the civil rules of procedure should apply and he should be able to make the closing argument to the jury. Id. at 131. The court held that, under the statute providing that the State has the right to make the concluding address to jury, the trial court had no choice but to deny defendant’s motion to conclude the argument. Id. at 132 (discussing Tex.Code CRiM. PRoc. Ann. art. 36.07 (Vernon 1981)). Appellant contends that, although Martinez is controlling, it is distinguishable because the court’s rationale applies only to the guilt-innocence phase of the trial, whereas in the instant case, appellant had already been found guilty, and her request to open and close pertained to the punishment phase.

When the legislature amended section 19.02 of the Penal Code in 1993, it re-characterized “sudden passion arising from an adequate cause” from an element of voluntary manslaughter into a sentencing factor that required a defendant to produce evidence raising “sudden passion.” See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, secs. 19.02(b)(3), (d), 19.04, 1993 Tex. Gen. Laws 3586, 3613-14. The amended statute placed on the defendant the burden of proof by a preponderance of the evidence. See Tex. Pen.Code Ann. 19.02(d).

Appellant, then, is asking us to read into the 1993 amendment the further proposition that, when the legislature made this change, it also impliedly abrogated article 36.07 of the Code of Criminal Procedure, at least as that provision applies to the sentencing phase of the trial. See Tex. Code Crim. Proc. Ann. art 36.07 (Vernon 1981) (stating that “the order of argument may be regulated by the presiding judge, but the State’s counsel shall have the right to make the concluding address to the jury”). However, appellant cites no authority for this interpretation.

We note that, even if appellant were correct in her interpretation of section 19.02, she could not show harm. The jury found that appellant had indeed been acting under “sudden passion arising from an adequate cause.” Therefore, the order of the argument did not disadvantage appellant in meeting her burden.

We overrule appellant’s seventh point of error.

CONCLUSION

We affirm the judgment of the trial court.

      . At the time of trial, Lindsey Harris had a wrongful death lawsuit pending against appellant.

      . Christina Fondren was a friend of Lindsey Harris.

      . The record incorrectly indicates that the State resumes questioning here.

      . U.S. Const, amends. VI, XIV.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    In the Matter of the ESTATE OF Gene E. STEED, Deceased.
    No. 06-03-00115-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 13, 2004.
    Decided Dec. 17, 2004.
    Rehearing Overruled Jan. 4, 2005.

      J. Stephen Cowan, Law Office of J. Stephen Cowan, Daingerfield, for appellant.
    Richard N. Countiss, Countiss Law Firm, Houston, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Gene E. Steed, a lawyer, prepared his own will several times. At his death, competing applications were filed to probate three different wills. His sons originally filed in Ochiltree County to probate a will dated in 1980. After finding another will on his computer dated in 2001, they filed the 2001 will. Gene’s widow, Shirley Steed, filed in Morris County an application to probate a 1998 holographic will Gene sent her. After venue was set in Morris County, a jury determined that Gene’s holographic will was executed without testamentary intent and as a result of undue influence, and that the 2001 will was never executed. The trial court found the parties had waived the probate of the 1980 will and ordered the property distributed by the laws of intestacy. Both the sons and the widow appeal. The issues are:

1. Was Morris County the proper venue?

2. Is there legally and factually sufficient evidence to support the jury finding that the 1998 holographic will was executed because of undue influence?

3. Is there legally and factually sufficient evidence to support the jury finding that the 1998 holographic will was executed without testamentary intent?

4. Is there legally and factually sufficient evidence to support the jury finding that the 2001 will found on the computer was not executed?

5. Did the Steed sons waive the probate of the 1980 will?

We hold that Morris County was the proper venue. We hold that factually insufficient evidence was presented to support the jury findings (1) that the holographic will was executed as a result of undue influence; (2) that the holographic will was executed without testamentary intent; and (3) that the 2001 will was not executed. We further find the 1980 will was not waived.

1. Was Morris County the Proper Venue?

The Steed sons’ case was first filed in Ochiltree County, where Gene lived and had practiced law. Shirley filed the next day in Morris County. The district court in Ochiltree County heard the motion to transfer venue. The court ordered venue transferred to Morris County.

We first address the Steed sons’ venue issue, because if venue was improperly transferred from Ochiltree County to Morris County, the case must be reversed and remanded. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002). Section 6(a) of the Texas Probate Code provides that wills should be admitted to probate in the county where the deceased resided, if he had a domicile or fixed place of residence in this State. Tex. PROB.Code Ann. § 6(a) (Vernon 2003). We must determine whether the statute establishes venue based on “domicile” or “residence.”

A person may establish only one domicile, whereas he or she may have several residences. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 139 (1951). If residence is the test, venue would be proper in Ochiltree County, where the case was first filed, because it was a residence of Gene. However, if domicile is the requirement, venue may be established in only one county. In Snyder, the Texas Supreme Court reasoned that, in analyzing the general venue statute, the two terms (residence and domicile) were not synonymous and that it was entirely possible for a person to have two residences although only one domicile, and provided definitions for each. Id. at 139-40. The court reasoned that a person had made himself amenable to suit in a particular venue if he had a residence there, even if his formal domicile was not at that location. That opinion, however, did not purport to apply that reasoning to the other venue provisions found throughout the statutes, such as the Texas Probate Code provision that is now before us. An opinion from this Court has explicitly addressed the question.

In a venue decision involving the Probate Code, this Court, in Halverson v. Livengood, 4 S.W.2d 588 (Tex.Civ.App.-Texarkana 1928, no writ), acknowledged the presence of the two terms in the venue provision, but held the Probate Code required venue in the county of the deceased’s domicile. Id. at 591. In construing the probate statute, this Court recognized that statutes establishing venue against living persons were designed to provide for the convenience of the parties involved and that, when a person spent so large a portion of his time in a county as to make it a place of residence, he could not claim that the location was an inconvenient venue for suit. This Court then discussed the venue statute in probate proceedings, recognizing explicitly that other factors became more important after the person’s death, such as the location of his property and where he had established a home, which was also typically where most creditors would reside. Based on this reasoning, the Court concluded there was little reason to give the word “domicile” a meaning different from its legal significance — “that is, the home or place of permanent residence of the deceased.” Id. This Court interpreted the language in the statute referring to “fixed place of residence” following the word “domicile” to explain the sense in which the word “domicile” was used in the statute and to signify a permanent residence, as distinguished from one which is only temporary. Id

The Halverson case, on its facts, is similar to this case. In Halverson, the decedent lived for many years in Grayson County, but during his latter years, he purchased a home in Dallas County and lived there with his sister. He also kept a room of a building he owned in Grayson County for his use. The evidence was conflicting as to his domicile at the time of his death. This Court remanded the case for a jury determination of the domicile issue.

We see no direct conflict between the analysis of the meaning of the two terms made in Snyder and in Halverson. Indeed, the Snyder opinion cited, with approval, the portion of the Halverson opinion that discussed the policy reasons for fixing venue in cases involving living persons and agreed that those policies were not injured by allowing a person to be sued in a county where he spent “so large a portion of his time as to make that county a place of residence.” Snyder, 241 S.W.2d at 142 (quoting Halverson, 4 S.W.2d at 590).

We conclude that the precedent of this Court in Halverson should be followed. As set out in that opinion, because of the different policy considerations involved in probate, as opposed to general venue issues, we hold that venue is established based on the domicile of the decedent and that the multiple residence authorization for venue as in Snyder does not apply to the probate venue statute. We now turn to the merits of the domicile determination.

The general elements of the legal concept of domicile appear to be treated consistently in all venue contexts. Those are: 1) an actual residence, and 2) the intent to make it a permanent home. The word home has been treated as meaning a “true fixed and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Snyder, 241 S.W.2d at 139; see Maddox, 677 S.W.2d at 228 (also recognizing that, when the decedent is in the process of moving her residence from one county to another, the length of time spent at the new location is not relevant so long as the act and intention to acquire a domicile coexist).

Venue Standard of Review

When examining a venue ruling, we are required to conduct an independent review of the entire record, including the trial on the merits, to determine whether venue was proper in the ultimate county of suit. Tex. Civ. Peac. & Rem.Code Ann. § 15.064(b) (“In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.”); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993). We conduct the review like any other review of a trial court’s findings of fact and legal rulings, except that the evidence need not be reviewed for factual sufficiency. Ruiz, 868 S.W.2d at 758. If there is probative evidence to support the trial court’s determination, even if the preponderance of the evidence is to the contrary, the appellate court must uphold the trial court’s venue determination. Colonial County Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 527 (Tex.App.-Corpus Christi 2000, no pet.); see also Ruiz, 868 S.W.2d at 758. Although we view the record in the light most favorable to the trial court’s ruling, we do not defer to the trial court’s application of the law to the facts of the case. See Ruiz, 868 S.W.2d at 758; N. Natural Gas Co. v. Chisos Joint Venture I, 142 S.W.8d 447, 452 (Tex.App.-El Paso, 2004, no pet.).

Analysis — Venue

In this case, the evidence elicited both at the venue hearing and at the trial showed that this case was first filed in Perryton in Ochiltree County, where Gene primarily lived and practiced law. Gene had lived and worked there during the 1960⅛. In the mid-1970’s, he left and made several moves to different areas, ending for a short time in Houston. He married Shirley in 1984 and moved to Perryton, where he reopened his law practice in 1985.

Gene lived in what was described as custom-built manufactured housing. Per-ryton was shown by his driver’s license as his home address, was where he was registered to vote, was where one (of — arguably — two) homestead exemptions was claimed, and was where he ultimately died. In 1998, Gene ran for an elective office in Ochiltree County. He spent his weeks there, and irregularly commuted the 500 miles to Daingerfield to a house on a fifty-acre farm he and Shirley had purchased and remodeled.

Since 1993, Shirley lived exclusively in Daingerfield. In each of several years immediately before Gene’s death, he had spent between twenty-four and thirty-eight days in Morris County — a maximum of approximately ten percent of his time. There is also some evidence he intended to eventually retire with Shirley to Morris County.

A large portion of Gene’s property consisted of ranch land located in West Texas, although evidently not in Ochiltree County, but in other nearby counties. Gene and Shirley owned three mobile home parks in East Texas, as well as a farm and house in Morris County.

The evidence above shows that there was a home located in Morris County at which Gene spent a portion of his time, that his wife resided there, that Gene had remodeled the home, and that he purchased fifty acres around the home. Testimony from acquaintances and friends was that Gene had articulated plans to retire to Daingerfield and make that his home.

The preponderance of the evidence is not the deciding factor for this review on appeal — it is whether there is any probative evidence to support the trial court’s decision. We conclude there is such evidence, and therefore, we must also conclude the venue ruling must stand.

Since we have found Morris County the county of proper venue, we will not address Shirley’s other venue arguments.

We now turn to the issues raised by the appellants. Shirley first contends the holographic will should control because the evidence does not support the jury finding that Gene executed the holographic will as a result of undue influence. In a related issue, she also contends the evidence does not support the jury finding that Gene lacked testamentary intent.

Standards of Review — Jury Findings

Legal and Factual Sufficiency Test When Attacking Party Has the Burden of Proof

Shirley had the burden to prove the 1998 holographic will was executed with testamentary intent. She alleges that the evidence supporting the jury finding adverse to her is legally and factually insufficient. The Steed sons had the burden to prove that the 2001 computer will was executed. The Steed sons allege the adverse jury finding is without legal and factual evidentiary support. Therefore, in reviewing those claims, we use the following standards.

When a party attacks the legal sufficiency of an adverse finding on an issue on which he or she has the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing a “matter of law” challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690. We may sustain the point of error only if the contrary proposition is conclusively established. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

When a party attacks the factual sufficiency of an adverse finding on an issue on which he or she has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242; Croucher, 660 S.W.2d at 58. We are required to consider and weigh all of the evidence, and we can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In doing so, we must “detail the evidence relevant to the issue” and “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Pool, 715 S.W.2d at 635.

Legal and Factual Sufficiency Test When the Other Party Has the Burden of Proof

Shirley also attacks the legal and factual sufficiency of the jury finding that the 1998 holographic will was executed due to undue influence, an issue on which the Steed sons had the burden of proof. In that case, in our review of the legal sufficiency, we will first examine the record, in the light most favorable to the verdict, for any probative evidence to support the finding, ignoring all contrary evidence. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Larson v. Cook Consultants, Inc., 690 S.W.2d 567 (Tex.1986). If there is any evidence of probative value supporting the finding, then the legal sufficiency argument fails. Holley v. Watts, 629 S.W.2d 694 (Tex.1982).

In reviewing a factual sufficiency challenge in this posture, we must first consider, weigh, and examine all of the evidence contrary to the jury determination. The finding should be set aside only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Wilson v. Goodyear Tire & Rubber Co., 753 S.W.2d 442, 448 (Tex.App.-Texarkana 1988, writ denied).

2. Undue Influence

To justify setting aside a will because of undue influence, a contestant must prove the (1) the existence and exertion of an influence (2) that subverted or overpowered the mind of the testator at the time of execution of the instrument (3) so that the testator executed an instrument he or she would not otherwise have executed but for such influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1968); Mackie v. McKenzie, 900 S.W.2d 445, 449-50 (Tex.App.-Texarkana 1995, writ denied). We must begin with the proposition that a person of sound mind has a perfect right to dispose of his or her property as he or she wishes. Rothermel, 369 S.W.2d at 923. The Rothermel decision is often quoted for the requirements to prove undue influence:

Generally, the establishment of the existence of an influence that was undue is based upon an inquiry as to the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence. The establishment of the exertion of such influence is generally predicated upon an inquiry as to the opportunities existing for the exertion of the type of influence or deception possessed or employed, the circumstances surrounding the drafting ■ and execution of the testament, the existence of a fraudulent motive, and whether there has been an habitual subjection of the testator to the control of another. Where there is competent evidence of the existence and exercise of such influence, the issue as to whether it was effectually exercised necessarily turns the inquiry and directs it to the state of the testator’s mind at the time of the execution of the testament, since the question as to whether free agency is overcome by its very nature comprehends such an investigation. The establishment of the subversion or overpowering of the will of the testator is generally based upon an inquiry as to the testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted. Words and acts of the testator may bear upon his mental state. Likewise, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in establishing this element of undue influence. Finally, the establishment of the fact that the testament executed would not have been executed but for such influence is generally predicated upon a consideration of whether the testament executed is unnatural in its terms of disposition of property.

Id. (citations omitted).

a. The Existence and Exertion of an Influence

Daniel Hatton, Gene’s assistant, testified Gene told him that he prepared the holographic document to get Shirley off the “warpath” and to pacify his wife and curb her spending because every time Shirley got mad or upset she would buy something. No issue has been preserved on appeal concerning the admissibility of these statements. Hatton also testified he overheard conversations between Gene and Shirley concerning money, that Gene would like to retire and could not afford to due to her demands. Hatton described the marriage as a love-hate relationship, that Gene was distraught regarding Shirley’s accusations of extramarital affairs, and that he did not want a “nasty divorce.” What is the import of the testimony from Hatton regarding Gene’s declarations to him?

A will may be invalidated because of undue influence if two factors coalesce: 1) pressure is brought to bear on the testator by words or acts of a third person (external conduct), and 2) a collapse of the testator’s own will (internal conduct) produced by the pressure. It has been determined by the Texas Supreme Court that declarations of the testator may be evidence that his or her will was overcome or collapsed, i.e., the second element, but are no evidence of the first element—external pressure. Pearce v. Cross, 414 S.W.2d 457, 458 (Tex.1966).

In the Pearce case, the Texas Supreme Court held that the declarations of the testator were no evidence of an external pressure placed on him, whereas such statements would be some evidence regarding whether the testator’s mind was overcome. In making this decision, the Texas Supreme Court quoted McCormick & Ray, Texas Law of Evidence, § 894 (2d ed.1956) concerning an exception to the hearsay rule and cited Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914), and Lindley v. Lindley, 384 S.W.2d 676, 682 (Tex.1964). In the cases cited by the Texas Supreme Court, the issue was the admissibility of certain statements of the testator. For instance, in Lindley, the court said, “These declarations on the part of Mrs. Lindley may be received to show her mental condition, but they constitute hearsay and have no probative value when offered to prove the truth of the facts she asserted. See Scott, 166 S.W. 1138; Buchanan v. Davis, 12 S.W.2d 978 (Tex.Comm’n App.1929, holding approved); Wigmore on Evidence, 3rd ed.1940, § 1738.” Lindley, 384 S.W.2d at 682. We believe that the import of Pearce was that the testator’s statements were admissible in that case for one issue (state of mind of testator), but not another (exertion of influence by third person). Since the hearsay statements were inadmissible on the issue of “exertion of influence,” such statements were of no probative value on that issue.

However, the Pearce case was decided before the adoption of the Texas Rules of Evidence. Before the adoption of the Texas Rules of Evidence, inadmissible hearsay had no probative value. Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex.1969). Rule 802 of the Texas Rules of Evidence now provides that inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Aatco Transmission Co. v. Hollins, 682 S.W.2d 682 (Tex.App.-Houston [1st Dist.] 1984, no writ). Here, the statements were admitted without objection and no issue of admissibility is presented in this appeal; therefore, the evidence cannot be said to have no probative value even if the statements were hearsay. See Tex.R. Evid. 802. Consequently, these declarations from Gene to Hatton will be considered on both components of undue influence: the external factor (pressure by another party) and the internal factor (collapse of the testator’s mind or will).

The statements by Hatton quoting Gene that he executed the will to pacify Shirley and to get her off the warpath do constitute some evidence of an exertion of influence. Consequently, we will examine the entire record to determine whether the jury finding on undue influence was clearly wrong and unjust.

In looking at the factors used to examine whether an undue influence has been exerted, we examine several factors. The following factors are concerned with proving the existence and exertion of an influence over the testator. Rothermel, 369 S.W.2d at 922.

1. The nature of the relationship between Gene and Shirley and the other beneficiaries — Friends of Gene and Shirley and their pastor testified Gene and Shirley had a close, loving relationship, whereas Hatton perceived it as a love-hate relationship. Van Steed acknowledged that Gene loved Shirley. Gene wrote a letter to Shirley in September 2001 expressing his love and affection for her. Shirley moved to Daingerfield in 1993 after she had a heart attack in order to be near a medical center — Perryton is 120 miles from Amarillo, the nearest city with a major heart hospital. While it is true they did not live together on a daily basis, they kept in constant contact by telephone and were together on many weekends. There is evidence that Gene was for some time estranged from his sons due to a disagreement about a financial transaction. This factor shows no exertion of influence.

2. The opportunity for exertion of undue influence — Since these parties did not live together daily, there was not nearly as much potential for undue influence. Shirley was 500 miles away from Gene most of the time. This factor weighs against a showing of the existence of exertion of influence by Shirley over Gene.

3. Circumstances surrounding the drafting of the will — The holographic will indicates that Gene drafted it “alone.” There is no evidence that Shirley was with Gene when he drafted the will or that she participated in the preparation of the will. There is no evidence Shirley asked, pleaded with, cajoled, or persuaded Gene to execute the will. According to Shirley, she never asked him about a will, and at the time he prepared the holographic will, he was in Perryton and she was in Dainger-field. She received the will in the mail, and Gene told her to put it in the safe-deposit box. The evidence concerning this very important factor provides no inkling that Shirley exerted influence in the preparation of the will.

4. Existence of fraudulent motive— Fraud generally refers to some material misrepresentation. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex.1998). There is no evidence in the record Shirley misrepresented, deceived, or tricked Gene in any way. To the contrary, they owned several mobile home parks, one of which Shirley managed, and they conferred on a regular basis about the businesses. No evidence is presented of a fraudulent motive.

5. Whether there has been a habitual subjection of the testator to the control of another — Gene was a lawyer and businessman who had acquired a sizeable estate. He continued to be an active practicing lawyer until his death. He was not financially dependent on Shirley. There was no evidence presented of any other occasions when Shirley controlled Gene’s actions. Gene was described as an independent, opinionated, take-charge type of person. Gene’s financial life involved some significant transactions. The fact Shirley enjoyed spending money is not evidence she controlled Gene’s decisions and actions.

Other cases provide some guidance. In Griffin v. Griffin, 271 S.W.2d 714 (Tex.Civ.App.-Texarkana 1954, no writ), the testimony was that the testator’s wife dominated him, including handling all financial matters, being the “boss,” and running the whole show. This Court held that such general and even controlling influence was not sufficient to invalidate the will unless that influence was specifically exerted on the testamentary act. Id. at 718. This Court found, even in the face of a jury verdict of undue influence, and considering the evidence in the light most favorable to upholding the verdict, there was no evidence of probative value to support a finding of undue influence by the wife. Likewise, in Bradshaw v. Naumann, 528 S.W.2d 869 (Tex.Civ.App.-Austin 1975, writ dism’d), in construing a deed which a jury found was executed as a result of undue influence, witnesses quoted the one who executed the deed “as saying that his wife was running him crazy, that if they had an argument he would give in to her, and that if he had not signed the deed there would have been hell, ‘. so much hell around there that he’d have to leave home.’ ” Id. at 871. The court held such evidence did not constitute direct evidence of external pressure to execute the deed.

Other than Gene’s statements to Hatton, there is no direct evidence of undue pressure by Shirley toward Gene to make and execute the holographic will. Circumstantial evidence may also be considered. However, the only circumstantial evidence offered concerned financial matters and alleged marital infidelity. While this evidence shows discord and disagreements between the spouses, it must be considered together with all other evidence to determine whether the evidence is sufficient for a jury to conclude Shirley exerted pressure on Gene to execute the holographic will. Indeed, a reasonable conclusion is that such discord would lead to the execution of a will excluding the offending spouse. The circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. In re Estate of Graham, 69 S.W.3d 598, 609 (Tex.App.-Corpus Christi 2001, no pet.). This is so because a solemn testament should not be set aside on a bare suspicion of wrongdoing. Id. (citing Rothermel, 369 S.W.2d at 922). The evidence discussed above is, under Rothermel, contrary to and greatly outweighs Hatton’s testimony about Gene’s declarations to him. For the reasons explained in analyzing those factors, when all the evidence is considered, we conclude that the jury finding on the first element of undue influence — the existence and exertion of an influence — is against the great weight and preponderance of the evidence, and is clearly wrong and unjust.

b. Subvert or Overpower Gene’s Mind

There must also be evidence to support the second element — that the influence operated to subvert or overpower the person’s mind executing the document. Not every influence exerted over a person is undue. “[0]ne may request or even importune and entreat another to execute a favorable dispositive instrument, but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the marker [sic] they will not taint the validity of the instrument with undue influence.” Curry v. Curry, 153 Tex. 421, 428, 270 S.W.2d 208, 212 (1954); Estate of Davis, 920 S.W.2d 463, 466 (Tex.App.Amarillo 1996, writ denied); Mason v. Mason, 369 S.W.2d 829, 838 (Tex.Civ.App.-Austin 1963, writ ref d n.r.e.).

The evidence on which the Steed sons rely for this element consists primarily of the same relied on for the first element— Gene was trying to find peace of mind, get Shirley off the warpath, and curb her spending. Additionally, the Steed sons argue that the testimony of Van Steed corroborates Hatton’s testimony. Van testified that it was “true” someone could exert influence over another even though the distance between them was hundreds of miles, that it was “correct” that pressure could be exerted by spending thousands of dollars and demanding the other provide the money, and it was “true” that allegations of sexual improprieties, all together, could overpower a person’s mind. Finally, he was asked, “Do you think that that happened,” to which he answered, “Yes, I do.”

Again, we find there is some evidence of this element and we examine the factual sufficiency of the evidence.

The element of subverting or overpowering the testator’s mind focuses on the mental or physical incapacity to resist. Rothermel, 369 S.W.2d at 923. These factors are found as follows:

1. The state of the testator’s mind— Some evidence was presented that Gene had been prescribed Prozac and suffered from depression and anxiety. However, he apparently worked daily in his office as a practicing lawyer and businessman. The difficulties he was encountering never prevented him from conducting his business affairs. By all accounts, Gene was a competent lawyer and businessman. Witnesses described Gene as “powerful”; competent”; “one of those movers and shakers that made things happen”; “[h]ad an active, sharp mind”; “as sharp and as bright an individual as I had known”; “good businessman”; “knew what he was doing”; “strong willed”; “very opinionated”; “if Gene had his mind made up to do something, ... you were talking to a wall; it was just going to be that way.” His sons described him as a “take-charge kind of guy”; “headstrong, very independent”; and “stubborn.” This factor militates against a finding that Gene’s mind was overcome or subverted when he executed the will.

2. Mental or physical incapacity to resist or the susceptibility of the testator’s mind to influence — There is no evidence Gene was feeble, incapacitated, or financially or emotionally dependent on Shirley. The evidence was all to the contrary: that Gene was an independent, opinionated, headstrong person who made his own decisions.

3. The words and acts of Gene — Gene stated he had a will and Shirley was the executor. Gene also told Hatton that he executed the will to pacify Shirley. As late as April 2001, Gene stated in a formal financial statement filed with his bank, “I have made a will; the executor is Shirley A. Steed, my wife.” Gene acknowledged he understood that a misrepresentation on the statement was a criminal offense. He did not give any indication on the financial statement that he considered the will to be invalid.

None of the witnesses testified they observed Shirley exert any pressure on Gene to execute the will. Our review of the entire record reveals that Gene was a meticulous, detail person; that he worked regularly to the date of his death; and that he was not physically or mentally impaired from performing his daily tasks. There is no evidence Gene was ever confused about his estate. He acknowledged that he had a will and that Shirley was the executor. His letters and actions toward his wife demonstrated a strong bond of love for her.

After considering and weighing all of the evidence, we find the second element necessary for a jury finding of undue influence — an influence overcoming or subverting the testator’s mind — is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

c. Execution of an Instrument he Would Not Otherwise Have Executed but for Such Influence

The third and final element that must be established to show undue influence is that the person would not have executed the document but for the influence. Id. at 922. Hatton’s statements regarding Gene’s declarations provide some evidence to support the finding, so we will address the factual sufficiency. The primary proof for this element is that the will is unnatural in its distribution of the testator’s property. Id.

Gene’s holographic will left his property to his wife and his sons, and was not unnatural. It is not unnatural when, in distributing property, to make one relative a larger bequest than another. Drewry v. Armstrong, 223 S.W. 281 (Tex.Civ.App.-Galveston 1920, writ ref d).

We find there is insufficient evidence to support a finding that Gene would not have executed the will but for the influence of Shirley, and such finding is clearly wrong and unjust.

We sustain Shirley’s contention that the jury finding that the 1998 holographic will was executed as a result of her undue influence is not supported by the evidence and is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

3. Testamentary Intent

The jury also found that Gene did not have testamentary intent at the time he executed the holographic will. Shirley had the burden of proof on this issue, and thus must show that the evidence established the testamentary intent as a matter or law or, alternatively, that the jury finding on the issue is against the great weight and preponderance of the evidence.

A valid will is a document executed with testamentary intent. The sufficiency of the intent does not depend on the maker’s realization that he or she is making a will, or on the maker’s designation of the instrument as a will, but on his or her intention to create a revocable disposition of the property to take effect after the maker’s death. It is essential, however, that the maker shall have intended to express his or her testamentary wishes in the particular instrument offered for probate. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 735 (1955); Trim v. Daniels, 862 S.W.2d 8, 10 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

Whether there was testamentary intent on the part of the maker is a proper question in a proceeding to probate or in a contest of an application to probate. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402 (1942); In re Brown’s Estate, 507 S.W.2d 801, 803 (Tex.Civ.App.-Dallas 1974, writ ref d n.r.e.). An instrument is not a will unless it is executed with testamentary intent. As described by the Texas Supreme Court, the “animus testan-di does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect after his death.” Hinson, 280 S.W.2d at 733.

Evidence Supporting the Jury’s Verdict Finding No Testamentary Intent

The Steed sons rely on the testimony of Hatton and Van Steed to support the verdict of the jury. As previously stated, Hatton testified Gene told him he made the will to pacify Shirley and curb her spending. Van was asked if he thought Gene executed the 1998 document with the intent to actually distribute his estate and answered, “No, I do not.” He was asked, “[D]o you think that he had testamentary intent when he created that document, .... ” and answered, “No.” Finally, Van responded he thought his father had ulteri- or motives in creating the will — which was to appease Shirley. Further, Hatton said he did not think Gene intended to give effect to that will. Hatton’s testimony concerning Gene’s statements constitutes some evidence in support of the jury verdict. We therefore will address Shirley’s factual sufficiency argument.

Our discussion above addresses the only evidence supporting the jury finding — the testimony of Hatton and Van. Their testimony does not explain the facts and circumstances surrounding the execution of the will, but is their own opinion as to the thinking of Gene at the time he executed the will. It is thus extremely weak in a traditional intent review of this type, because intent is to be determined by the language used in the will — we are to ascertain not what the testator meant to express apart from the language, but what the words he has used do express. See Ayala v. Martinez, 883 S.W.2d 270, 272 (Tex.App.-Corpus Christi 1994, writ denied) (citing Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960)). In Brown, 507 S.W.2d at 803, the actual words used by the maker of an instrument are the primary subject of inquiry to resolve the question of testamentary intent. We now turn to the language of the document itself to determine the purpose of its making.

Evidence Supporting Shirley’s Argument That Steed had Testamentary Intent

The language of Gene’s holographic will is not ambiguous. Gene was a lawyer, and apparently a large part of his practice was in the wills and probate field. He had at one time served as a county judge, which included jurisdiction of wills and probate. The handwritten will is entitled “Last Will & Testament of Gene E. Steed” and is dated July 4, 1998. The will declares that it is meant to function as a will and that Gene was of sound mind and disposing memory. He specifically be-quested to Van Steed, Dan Earl Steed, and Randy Gene Steed the surface of all lands inherited from Van Earl Steed in Gray County in fee simple forever, subject to all debt thereon. He left to his sons the land in Ochiltree County, specifically naming the lot and blocks. He then left the residue to his wife, Shirley, and appointed her as independent executrix. Jerry Pratt, an attorney, testified the will appeared to have been executed by a person with the intent to make a last will and testament. The words of the will leave no doubt that this was Gene’s will and clearly expressed his intention as to the disposition of his estate on his death.

Even if a will is doubtful, evidence of the circumstances surrounding the execution of the will is admissible for the purpose of enabling the court to read the will in light of the circumstances and discover the meaning attached by the testator to the words used by him or her. Such evidence is admissible only for the purpose of explaining the meaning of the language, for the intent of a testator must be ascertained from the meaning of the words used by him or her in the will and from those words alone. Kennard v. Kennard, 84 S.W.2d 315, 320 (Tex.Civ.App.-Waco 1935, writ dism’d).

The testimony of Van and Hatton does not aid the Court in determining, based on the facts and circumstances surrounding the execution of the will, what the meaning of particular words might be, but simply attempts to substitute their opinion that, even though Gene clearly expressed his intention in the will, he did not mean what he clearly expressed.

Other Considerations

The Steed sons argue that the evidence supports a finding of lack of testamentary intent based on Shiels v. Shiels, 109 S.W.2d 1112 (Tex.Civ.App.-Texarkana 1937, no writ). In Shiels, the testator was to be inducted into a Masonic Lodge office. One requirement of the society was that he write a will during the ritual. He protested that he did not want to make a will, but was prevailed on to do so during the induction process. This Court held that the time, place, and circumstances under which the will was executed were material to determining testamentary intent. In explaining the rationale, we stated that Shiels protested the making of the will, but then proceeded to prepare it. We stated that questions remained to be answered: Was his intention to execute the will merely a part of the ceremony? Did he execute it rather than suffer from dismissal from the class and be denied further initiation, with the intention that it operate only as a formal compliance with the requirements of the order?

In contrast, here there is no evidence of any unusual or extraordinary circumstances at the time the will was executed that would raise a question of whether the words of the will were intended to have some meaning other than as explicitly stated. There is no proof in this case paralleling the evidence discussed in Shiels about the circumstances surrounding the creation of the document, but only speculation and presumption about the opinions of two people regarding what Gene was thinking.

Unlike Shiels, this evidence therefore does not support a suggestion Gene did not intend for this will to operate as a testamentary disposition. As a lawyer, Gene was familiar with the effect of a document entitled Last Will and Testament which disposed of his property. He had prepared hundreds of wills in his law practice of over forty-five years. As a practicing wills and probate lawyer, Gene was fully aware of the consequences and meaning of a will clearly and completely disposing of his assets “at the time of my death.” The words of the will clearly show Gene’s intent.

The Steed sons also rely on Luker v. Youngmeyer, 36 S.W.3d 628 (Tex.App.-Tyler 2000, no pet.). In Luker, the decedent had left a handwritten document consisting of three pages. The document was not signed, but had the name of “Margaret E. Whitely Charitable Trust” on what the court designated as page A. The court found page A was a separate nontestamen-tary document listing changes or potential changes to a trust. The court held that Whiteley did not intend for her name on page A to express her approval of the testamentary provisions contained on pages B and C as her will. As such, her name did not constitute her signature, and therefore, the writings were not a valid will. Id. at 631. That case is clearly distinguishable from this one.

Based on our review of the entirety of the record and all of the evidence, for the reasons explained, the failure to find that Gene executed the will with testamentary intent is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

4. The Computer Will

The Steed sons, in their cross-appeal, contend they proved as a matter of law that the 2001 will found on Gene’s computer after his death was executed or that the jury answer finding that it was not executed was made against the great weight and preponderance of the evidence. Alternatively, the Steed sons contend the district court erred by determining that, by amending their pleadings to seek probate of that will, they had waived their right to seek probate of the 1980 will.

A will was found on Gene’s office computer dated November 20, 2001. It was labeled as a final draft of his will. No signed copy was ever produced. The jury was submitted a series of questions concerning the execution by Gene of a will on November -20, 2001. The first of these questions inquired if Gene executed “an instrument which purported to be his last will and testament” on that date; the jury answered in the negative. Based on that answer, the jury was instructed not to answer the remaining questions. The remaining questions asked if the will had been executed with the required formalities, whether it was lost, if the content of the lost will had been substantially proved, if petitioner’s Exhibit No. 5 was an exact copy of the lost will, if a diligent effort had been made to find it, if the will was last seen in the possession of Gene, if Shirley was given a duplicate of the will, and if Shirley was last in possession of a duplicate copy.

We first look to see if there is any evidence to support the jury finding that no will was executed by Gene November 20, 2001. It is important to understand that the jury did not answer any questions concerning the validity of the execution of the will, whether it was lost or if a diligent effort had been made to find it, or whether the will produced was a true copy of the one Gene actually executed. The only question the jury answered was — did Gene execute a document which purported to be his last will and testament. The evidence directly supporting the jury finding that Gene had not executed the will is that the will produced to the jury was not executed. There was also evidence that the Steed sons took the computer hard drives from Gene’s office and that the drives were not recovered until several months later.

Linda James testified she was a document examiner. Her primary testimony concerned her opinion that the 1998 handwritten will was in Gene’s own hand. However, even though she acknowledged that she was not an expert in the computer field, she testified that, in her opinion, the November 20, 2001, will was not rehable since it was computer generated and the dates shown for the creation of the will could be easily changed. She did not, however, examine the computer for a determination of whether such a date change had in fact occurred. We find some evidence exists to support the jury finding.

Was the Evidence of no Execution Factually Sufficient to Support the Verdict

We now review the entirety of the record and all of the evidence to determine whether the evidence was factually sufficient. The Steed sons rely on the testimony of the two subscribing witnesses and the notary public to establish that a will was executed by Gene November 20, 2001.

Candice Hague, Gene’s former legal secretary, who was not employed by him at the time, testified Gene called her to come from her home to his office, where she notarized a will after Larry Money and Hatton signed it as witnesses. She testified that Gene went through the usual procedure, confirming that it was his will, that he was over eighteen years of age, of sound mind, and that any other will would be revoked. She testified she did not review the contents of the will and could not testify that the will produced was the one she had notarized. It also appears that, although her “notary book” was there, Steed did not sign it on that date.

At the deposition, at counsel’s request, Hague had accessed the hard drives on the law firm’s computer and found four versions of wills with four time stamps — the last three less than twenty minutes apart between 8:30 p.m. and 8:46 p.m. November 19, 2001. The one offered was listed in the computer as “WillGene E Steed final 3.”

The evidence shows that Hague had filed a sexual harassment claim against Gene after she quit her job, and that she lost — but it is not clear how long that occurred before the will signing. Money worked next door to the law office, and the evidence was that he was often asked to witness wills. Money testified that he was requested to come to Gene’s office to witness his will, that he heard Gene claim this as his final will, revoking all others, and that Money signed as a witness. He testified he had not read the rwill and could not identify the document proffered as the same document that he signed.

Hatton, Gene’s long-time office assistant, testified Gene asked him to come by on the morning of November 20 in connection with Gene’s will. He testified Gene asked him to read the will, which he did, and then further testified that the proffered document was an exact copy of the will Gene signed November 20, 2001, and which Hatton had signed as a subscribing witness.

Shirley did not impeach Hatton’s testimony about the will. However, she testified that Hatton had originally come to Gene for legal advice because he had been accused of stealing horses, that he had told Gene he worked for the Central Intelligence Agency, and that he told her he had nine college degrees and 233 hours of college credit. She testified that, when she heard Hatton testify in Perryton, he had stated that he could not remember where he went to college and that he had two high school degrees, but could not remember where he went to high school. (At this trial, he testified he did have the college hours, from the Air Force Community College and from a Bible Institute in Arizona, that he had a GED, and that he had also obtained a diploma after entering the military from Cooper High School in Abilene.) She testified that Hatton had “street smarts” and that he intrigued Gene, but that he was not a person Gene would have named as a trustee in his will.

The testimony of James concerning the reliability of the computer will was contradicted by Nickie Drehel, a computer specialist from the Houston Police Department. Drehel testified that it would be very simple to detect if a computer date had been manipulated and that he had examined the computer in question and found no such manipulation.

When weighing all of the evidence, we find that the two subscribing witnesses testified that they personally witnessed Gene execute a document and declare to them it was his last will and testament. Further, the notary public testified she witnessed it and signed and documented the will in the appropriate places. The contrary evidence is that no executed will was produced, that there were suggestions Hague would not have been a logical choice to serve as notary since she had previously filed a sexual harassment charge against Gene, and that Hatton would not be Gene’s reasonable choice for serving as the trustee under the will. The suggestion that the date of the preparation of the will might have been manipulated was contradicted by an expert witness who had actually examined the computer. We believe that the relatively uncontradicted direct testimony of the two subscribing witnesses and the notary public is highly probative and persuasive. This question is confined to whether Gene executed a will November 20, 2001; it does not deal with any of the other issues submitted to the jury but not answered.

We find that the jury answer is not factually supported by the evidence and that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

5. Was the Steed Sons’ Attempt to Probate the 1980 Will Waived

In the alternative, the Steed sons next contend that, if the 1998 will was not valid, the district court erred by refusing to allow them to pursue probate of the 1980 will. Probate of that will was sought alternatively in the live pleadings and was presented as an exhibit at the trial. On its face, the 1980 will was executed with all proper formalities and was legitimately self-proven. Thus, the Steed sons allege that, when the jury failed to find facts sufficient to admit either the holographic 1998 will or the 2001 will to probate, the 1980 will necessarily remained alive and unrevoked. Since we are remanding the case for a new trial, we will address this waiver argument.

Counsel directs us to nothing in which the trial court declined to permit them to pursue the probate of the 1980 will either directly or in the alternative. The Steed sons did not present any jury issues on that will and did not request the district court to take any form of action in connection with that will.

The pleadings directly reference that will and ask that, if the other wills were found to be invalid, that the 1980 will be probated. Counsel correctly points out that Tex. Pkob.Code ANN. § 84 (Vernon Supp. 2004-2005) states that, when a will is shown to be self-proven, “no further proof of its execution ... required to make it a valid will shall be necessary.” The will meets the requirements of a self-proven will.

If resolution of a factual issue is required to establish a theory of recovery or defense, the failure to request a jury instruction on that issue waives the claim on appeal. Brown v. Bank of Galveston, Nat’l Ass’n, 963 S.W.2d 511, 515 (Tex.1998). On the other hand, where no factual issue is involved and the claim or defense is conclusively established, no request for jury instruction or submission is required to preserve the issue for appellate review. Chappell Hill Bank v. Lane Bank Equip. Co., 38 S.W.3d 237, 245 (Tex.App.-Texarkana 2001, pet. denied); Int’l Aircraft Sales, Inc. v. Betancourt, 582 S.W.2d 632, 636-37 (Tex.Civ.App.-Corpus Christi 1979, writ ref'd n.r.e.).

In the final judgment, the district court acknowledged that both wills were before it for decision. The court then found “that as a matter of law the probate of the 1980 will was waived.” That statement does not find support in the record. If neither of the prior wills was valid, then neither could serve to revoke the 1980 will. The record does not show that the Steed sons affirmatively abandoned that cause of action, and the record does show that the will was before the court and that it was self-proving, thus requiring no action by a jury to validate it.

Under these facts, we conclude that waiver has not been shown and that the district court erred by so finding.

We reverse the judgment of the district court and remand this case for a new trial consistent with this opinion.

      . Other cases have similarly held that, for the purpose of determining venue in probate proceedings, "domicile” and "fixed place of residence” are synonymous. Maddox v. Surber, 677 S.W.2d 226, 228 (Tex.Civ.App.-Houston [1st Dist.] 1984, no writ); Slay v. Dubose, 144 S.W.2d 594, 596 (Tex.Civ.App.-Fort Worth 1940, writ ref'd).

      . We also note the Legislature has required a different analysis in the Texas Election Code, which states:
      In this code, "residence” means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.
      Tex. Elec.Code Ann. § 1.015 (Vernon 2003).

      . There is some evidence questioning the signature found on of the Morris County homestead exemption forms, and there is also an earlier (and unrevoked) homestead exemption claimed in Ochiltree County.

      . The contrary evidence showed that Gene’s work place and a residence at which he spent the remainder of his time were located in Ochiltree County. The documentary evidence concerning a claim of homestead was in conflict, but could be seen to show that Gene’s last intention was to claim the Daingerfield home. So far as intent is shown by actions, the evidence shows that, over a period of seventeen years, he continually returned — to both places — but spent the majority of his time in Perryton.