text:
    Donald SPARKS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-03-00761-CR, 01-03-00762-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 27, 2005.

      Tim Greene, Houston, TX, for Appellant.
    Oliver Kitzman, District Attorney of Waller County, Hempstead, TX, for Appel-lee.

      Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA
   OPINION

ELSA ALCALA, Justice.

In separate indictments, appellant, Donald Sparks, was charged with the felony-offenses of murder of Deborah Lauren Alexander (Lauren), and aggravated assault of Samuel Keith Thompson (Sammy). Appellant pleaded not guilty to the charges before a single jury, which found him guilty of both offenses. The jury sentenced appellant to 75 years in prison and a $10,000 fíne for the murder of Lauren, and 10 years in prison and a $5,000 fine for the aggravated assault of Sammy, and the trial court ordered that the sentences run concurrently.

In two issues, appellant contends that the trial court erred by (1) allowing the jury to propound questions to a testifying witness, (2) denying appellant’s requested jury charge of defense of property, and (3) denying appellant’s requested jury charge of his right to self-defense against both Lauren and Sammy. The State did not file an appellate brief for either conviction. We conclude that the trial court erred by failing to properly instruct the jury on the law of self-defense and defense of property and that appellant was harmed by the error; and thus, we reverse for a new trial on both offenses.

Background

In 2002, appellant was 70 years of age, retired, and a widower. Lauren and appellant had been friends for three years; they did not have an intimate relationship, although he allowed her to live with him at his trailer house for about a month. On January 4, 2002, both appellant and Lauren smoked crack cocaine during the daytime. That night, appellant gave Lauren a ride to an icehouse after giving her some money. Appellant waited in his parked car while she went into the icehouse. When she returned to appellant’s car, her friend, Sammy, joined them. Sammy and appellant had been strangers before that evening.

Lauren, Sammy, and appellant went to various places for short lengths of time of approximately 15 minutes at each location. Ultimately, appellant left Lauren and Sammy at “Scott’s” trailer without a ride when appellant departed alone for his house. Sammy and Lauren, however, found a ride to appellant’s trailer, which was about eight miles away.

After Sammy and Lauren smoked some crack cocaine, they approached appellant’s trailer and were allowed into the trailer by appellant. Appellant said that he had no money to purchase gasoline that night, but that he would cash a check at a bank the next day when the banks opened at 9 a.m., get gasoline, and take Sammy and Lauren to Sammy’s residence in Hempstead.

At approximately 3:00 a.m., a man and woman appeared at appellant’s trailer house. The woman, an acquaintance of appellant, asked to borrow money from him. Lauren became angry with the woman and argued and fought with her. While holding scissors in her hand, Lauren pulled the woman’s hair, but the fight stopped when appellant exhibited a sawed-off .410 shotgun. After the man and woman left appellant’s trailer house, Sammy and Lauren slept on opposite sides of appellant’s couch, while appellant lay on his bed. From that point on, appellant’s and Sammy’s versions of the events are starkly different concerning appellant’s use of the sawed-off .410 shotgun and a .22 rifle.

Sammy’s Testimony

Sammy testified as follows. Appellant lay on his bed with a .22 rifle next to him as Sammy and Lauren slept on the sofa. When they all rose at about 9:00 a.m., appellant and Lauren started arguing again. Appellant retrieved his .22 rifle, pointed it at Lauren, and ordered her to gather her clothes and leave. As she gathered her belongings, Lauren told appellant that he could not call her names and that she wasn’t scared of him or the gun. Appellant shot Lauren in the face with the .22 rifle. Appellant then turned to Sammy and pointed the .22 rifle at him. After Sammy ducked behind a chair, he rushed at appellant and grabbed the end of the .22 rifle’s barrel with his left hand, causing the gun to discharge a bullet that struck Sammy’s left thumb. Sammy took possession of the .22 rifle. As Sammy tried to unlock the door to leave the trailer, appellant, now armed with a .410 shotgun, shot at Sammy, but missed him. Sammy opened the door and ran outside. Appellant shot at Sammy again with the .410 shotgun, but missed him again. Sammy then heard another muffled gunshot that sounded as if it came from inside the trailer house. Sammy ran to a garden nursery nearby and called for police and an ambulance.

Appellant’s Testimony

Appellant testified as follows. At around 3 a.m., when the woman who had fought with Lauren left his trailer, he asked the woman to call police because “Lauren was just totally out of control, and I ... was afraid that they was gonna [sic] rob me or kill me.” Appellant went to the restroom, and, upon returning to his bedroom, he noticed that his .410 shotgun was missing, which caused him to continue to fear for his life. As Sammy and Lauren slept, appellant sat upright on the bed holding the .22 rifle across his lap throughout the night.

At about 9:00 a.m., when everyone rose, appellant offered to give Lauren a ride to Sammy’s house or into town. He told Lauren that she had to get her clothes and leave his trailer because there was a warrant for her arrest. Lauren asked him for $50 so that she could pay Sammy part of the $225 that she owed him, but appellant refused.

Lauren stabbed appellant three times in the arm with a pair of scissors, but appellant “really didn’t think Lauren would hurt [him .]” Sammy, who had hidden appellant’s .410 shotgun inside his jacket, pulled out the .410 shotgun, pointed it at appellant and said, “I have to have my money cause [sic] my wife will kill me if I don’t get it,” which caused appellant to fear for his life. In a sudden reverse of emotion, Lauren switched the focus of her aggression to Sammy and attacked him in an attempt to protect appellant.

As Lauren fought Sammy to assist appellant, appellant thought, “[H]e is gonna kill us both.” Appellant retrieved his .22 rifle from the bedroom and pointed it at Sammy, who was on top of Lauren, beating her with his hands and with the sawed-off .410 shotgun. After appellant “nudged” Sammy in the side and told him to quit, Sammy “brought up the shotgun, and turned around real slow” and then grabbed appellant’s .22 rifle, which discharged, shooting Lauren. Sammy grabbed appellant, slung him around like a “rag doll,” and tried to shoot him with the .22 rifle, but it would not fire. When Sammy pointed the .410 shotgun under appellant’s chin, appellant used all of his strength to push the .410 shotgun off, which caused it to fire, shooting Lauren a second time. Sammy threw down the .410 shotgun, picked up the .22 rifle, and ran out the door.

Earlier that evening, appellant had told Sammy that the .410 shotgun was a “single shot shotgun.” Appellant stated that he believed that was why Sammy discarded the .410 shotgun before leaving the house. Appellant picked up the .410 shotgun, discarded the empty shell, reloaded a shell, and went outside. When Sammy fell down outside appellant’s trailer, appellant shot at him, striking the side of the car that was parked nearby. As he ran from the trailer, Sammy fired the .22 rifle back towards appellant’s trailer. Appellant then called police from a nearby neighbor’s house.

Denial of Jury Charges

In his second issue, appellant contends that the trial court erred by denying his requested jury charges. Although appellant requested a defense-of-property jury instruction by submitting proposed written jury instructions, the trial court refused to instruct the jury on that defense. Additionally, the trial court refused to include jury instructions on appellant’s right to use self-defense against both Lauren and Sammy for both the murder and the aggravated assault charges. Instead, the trial court instructed the jury, in the application paragraph for the murder charge, that appellant had a right to self-defense as to Lauren only and instructed the jury, in the application paragraph for the aggravated assault charge, that appellant had a right to self-defense as to Sammy only.

By obtaining adverse trial court rulings on his proposed written instructions, appellant preserved error on his complaints concerning the denial of his requested charges. See Tex.Code Cmm. PROC. Ajmn. Art. 36.14 (Vernon 1999) (defendant must distinctly specify each ground of objection to charge); see Chapman v. State, 921 S.W.2d 694, 695 (Tex.Crim.App.1996) (holding that defendant preserves error if request is specific enough to put trial court on notice of omission or error in charge; requested charge need not be “in perfect form,” but only sufficient enough to call error to trial court’s attention); see Vasquez v. State, 919 S.W.2d 433, 435 (Tex.Crim.App.1996) (holding that preservation of error relating to defensive issue in jury charge is made by objection or submission of requested charge to court).

A trial court must charge the jury on any defensive issue raised by the evidence, “regardless of its substantive character.” Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997). A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. Id. (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982)). The jury alone decides whether to accept or reject a properly raised defensive theory. See Woodfox v. State, 742 S.W.2d 408, 410 (Tex.Crim.App.1987) (holding that trial judge who refuses to give instruction on defensive issue because evidence supporting it is weak or unbelievable effectively substitutes his judgment on weight of evidence for that of jury). In determining whether the testimony of the accused raises an issue of self-defense, the truth of the accused’s testimony is not at issue. Rodriquez v. State, 544 S.W.2d 382, 383 (Tex.Crim.App.1977).

Defense of Property

Our laws provide that a person may use non-deadly force to defend property under certain circumstances. Section 9.41 of the Penal Code states the following:

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property, (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and; (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Tex. Pen.Code Ann. § 9.41 (Vernon 2004). Our Penal Code further provides that a person is justified in using deadly force to defend property under certain circumstances, as follows:

A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Tex. Pen.Code Ann. § 9.42 (Vernon 2004).

According to appellant, Sammy pointed the .410 shotgun at him and demanded his money, which caused him to fear for his life. Appellant testified that, in response to this aggravated robbery, he armed himself with the .22 rifle and struggled with Sammy, who used the sawed-off .410 shotgun to beat Lauren. Appellant further testified that his .22 rifle discharged, when Sammy grabbed it, and shot Lauren. Without regard to its credibility, appellant’s testimony was sufficient to raise the issue of his right to use deadly force to defend his property from aggravated robbery by Sammy. The trial court erred, therefore, by denying a defense-of-property instruction concerning appellant’s right to use deadly force to defend his property from Sammy for both the murder and aggravated assault offenses, and we sustain that portion of appellant’s complaint on appeal.

Although, according to appellant’s testimony, Lauren had previously stabbed appellant after he refused to give her more money, appellant clearly stated that, when he armed himself with the .22 rifle that morning when Lauren was shot, Lauren was in the course of defending appellant from Sammy’s threats with the .410 shotgun, and he “really didn’t think Lauren would hurt [appellant.]” The trial court did not err, therefore, by denying the defense-of-property instruction concerning Lauren, who, by appellant’s own testimony was assisting him and not attacking or robbing him when appellant acted to defend his property. We overrule the portion of appellant’s complaint on appeal concerning denial of his request for a defense-of-property instruction concerning Lauren.

Self-Defense

Our Penal Code provides that a person may use non-deadly force in self-defense under certain circumstances, as follows:

Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.

Tex. Pen.Code Ann. § 9.31(a) (Vernon 2004). However, to be justified in using self-defense through the use of deadly force, our Penal Code provides:

A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor’s situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is necessary: (A) to protect himself against the other’s use or attempted use of unlawful deadly force; or (B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Tex. Pen.Code Ann. § 9.32(a) (Vernon 2004).

Although appellant testified that he had feared for his life as to Lauren the night before she was killed, and that Lauren had stabbed him earlier that morning after he refused to give her more money, he also clearly stated that, when he armed himself with the .22 rifle on the morning that Lauren was shot, Lauren was in the course of defending appellant from Sammy’s threats with the .410 shotgun, and appellant “really didn’t think Lauren would hurt [him.]” The trial court did not err, therefore, by refusing to instruct the jury on appellant’s right to self-defense as to Lauren on the aggravated assault charge, and we overrule that portion of appellant’s complaint on appeal.

According to his own testimony, appellant armed himself when Sammy pointed the .410 shotgun at him and demanded his money, which caused appellant to fear for his life. As Sammy beat Lauren with his hands and the .410 shotgun, appellant “nudged” Sammy in the side and told Sammy to quit. Appellant’s .22 rifle discharged and shot Lauren when Sammy grabbed at the .22 rifle. This testimony is sufficient to raise the issue of appellant’s right to use deadly force in self-defense against Sammy for both the murder charge and the aggravated assault charge. We conclude that the trial court erred by failing to submit an instruction on self-defense as to Sammy for the murder charge and sustain that portion of appellant’s issue on appeal. Because the aggravated assault offense charge contained an application paragraph concerning appellant’s right to use self-defense against Sammy, no error concerning the self-defense instruction occurred in that charge.

Harm Analysis

Having concluded that the trial court erred by failing to instruct the jury on appellant’s right to use deadly force to defend his property as to Sammy for both the murder and the aggravated assault offenses, and by failing to instruct the jury on appellant’s right to use deadly force in self-defense as to Sammy for the murder offense, we must determine whether the error harmed appellant. See Payne v. State, 11 S.W.3d 231, 232 (Tex.Crim.App.2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Because appellant properly preserved the error by objecting to the charge and by submitting his proposed jury instructions, we must reverse the conviction and order a new trial if appellant suffered any actual harm, regardless of degree. See Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 171). To determine if there is any harm, we must weigh the degree of harm in light of the entire jury charge, state of the evidence, counsel’s arguments, and any other relevant information revealed by the trial record as a whole. See Almanza, 686 S.W.2d at 171.

1. The Jury Charge

We begin our harm analysis by analyzing the jury charge itself. See id. Although the jury charge for the murder offense contained the law concerning self-defense generally, the application paragraph of the charge limited appellant’s right to self-defense as against Lauren only — who, by appellant’s admission, was coming to his aid when appellant armed himself. Appellant thus received no charge on his right to use self-defense against the only attacker, Sammy.

In assessing whether appellant was harmed by the erroneous jury charge, we also consider the appellate presumption that the jury is presumed to have understood and followed the court’s charge, unless there is evidence to the contrary. See Hutch, 922 S.W.2d at 172. Under this presumption, we must presume that the jury followed the erroneous instruction in the murder charge, which authorized the jury to take Lauren’s, but not Sammy’s, actions into account. See id. Moreover, the erroneous murder charge was contained in the application paragraph, the portion of the charge that authorizes the jury to act. See id. It is not sufficient for the jury to receive an abstract instruction on the law. Id. An abstract charge does not inform the jury of what facts, if found by it, would permit the jury’s consideration of the contested evidence. Id. at 173. Nothing in the record suggests that the jury did not understand or follow the court’s charge, and we must presume that it is possible that appellant was convicted by a jury that may have wanted to, but was not allowed to, take into account Sammy’s actions when considering appellant’s self-defense claim to the murder charge. See id. at 172.

Furthermore, both the murder and aggravated assault charges completely exclude any defense-of-property instruction. Thus, both charges ignore appellant’s right to assert his defense that Sammy unlawfully attempted to take appellant’s property at gunpoint.

Once a defendant has produced sufficient evidence to raise a defense, the State is required to disprove the defense beyond a reasonable doubt. Boget v. State, 40 S.W.3d 624, 626 (Tex.App.-San Antonio 2001), aff'd, 74 S.W.3d 23 (Tex.Crim.App.2002). The State was not required here to disprove the defense-of-property defense beyond a reasonable doubt because the jury charges did not instruct the jurors that the State had the burden of persuasion on the issue. Even if the jury had a reasonable doubt about whether appellant was justified in using deadly force to defend his property from Sammy, the charge did not allow the jury to acquit on that basis.

2.The Evidence

We examine next the state of the evidence, including contested issues and the weight of the probative evidence. See Almanza, 686 S.W.2d at 171. The jury heard two eyewitness accounts of the events. In Sammy’s version, appellant was the aggressor. In appellant’s version, Sammy was the aggressor. The evidence from the autopsy report stated that Lauren’s cause of death was a “gunshot wound and shotgun wound to the head.” Because the medical examiner testified that there was no way to know which wound Lauren received first, the physical evidence could be consistent with either appellant’s or Sammy’s version of events, depending on whom the jury believed. The deputy sheriff for the Waller County Sheriffs Department testified that he overheard appellant state that “two people had tried to rob him, that he had shot one, and had killed the girl in his house.” The Sheriffs testimony is generally consistent with appellant’s trial testimony.

3. Counsel’s Argument

We next examine the arguments of counsel. See id. It is clear from the record that appellant’s entire defense was that he was acting to defend himself from the use of deadly force by Sammy. Appellant’s counsel referred to self-defense and defense-of-property during voir dire, and argued these defenses in his opening statement, in his closing arguments, and by eliciting testimony from appellant. In his closing arguments to the jury, the prosecutor also repeatedly referred to appellant’s claims of self-defense and defense-of-property in response to a threatened robbery by Sammy.

4. Other Relevant Information

Lastly, we address any other relevant information revealed by the record of the trial as a whole. See id. The record contains no information on the jury’s deliberation or length of time of them deliberation. The record reveals no other relevant information to assist us concerning our harm analysis.

The trial court’s refusal to instruct the jury on appellant’s right to assert defense-of-property as to Sammy on both the murder and aggravated assault offenses, and appellant’s right to self-defense from Sammy as to the murder offense harmed appellant because the trial court’s refusals denied appellant the opportunity of requiring the jury to find against these defenses before assessing his guilt for the charged offenses. The jury here was not instructed on justifications that would have required acquittal if the jury resolved these factual issues in appellant’s favor. See Boget, 40 S.W.3d at 627. We conclude that the error in the denial of these jury instructions actually harmed appellant. We sustain appellant’s second issue.

Conclusion

The judgments of the trial court are reversed, and we remand for a new trial.

      . The murder is trial court cause number 02-02-11063, which is appellate cause number 01-03-00761, and the aggravated assault is trial court cause number 02-02-11064, which is appellate cause number 01-03-00762.

      . Because we remand for a new trial, we need not address whether the trial court erred by allowing the jury to propound questions to a testifying witness; however, we note that in Texas, jurors are not permitted to ask questions of witnesses. See Allen v. State, 845 S.W.2d 907, 907 (Tex.Crim.App.1993) ("Allowing juror questioning of witnesses in the criminal setting is, therefore, impermissible, and any excursion into this area is error not subject to harm analysis”).

      . Section 9.31(b) pertains to instances when the use of force is not permitted, such as in response to verbal provocation alone. See Tex Pen.Code Ann. § 9.32(b) (Vernon 2004).

      . It also appears that the trial court erred by including appellant's right to use self-defense against Lauren as to the murder charge, but that issue is not before us in this appeal.

      .Section 9.05 of the Texas Penal Code allows a jury to convict the defendant even if he was justified in his use of self-defense when he recklessly injures or kills an innocent third person. See Tex Pen.Code Ann. § 9.05 (Vernon 2004) (stating "Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.”); see Banks v. State, 955 S.W.2d 116, 119 (Tex.App.-Fort Worth 1997, no pet.); Brunson v. State, 764 S.W.2d 888, 891 (Tex.App.-Austin 1989, pet. ref'd). When the evidence raises the issue whether an innocent third person was killed recklessly during a defendant’s use of self-defense, the trial court must first charge the jury on the law of appellant's right to self-defense and then further charge the jury on the section 9.05 limitation concerning reckless injury or death of an innocent third person. See In the Matter of D.L., 656 S.W.2d 181, 183 (Tex.App.-San Antonio 1983, no pet.) (Butts, J. concurring).


source: Caselaw Access Project

author: TIM TAFT, Justice. TERRY JENNINGS, Justice,

license: Public Domain

text:
    Carroll Dwayne YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-01147-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 27, 2005.
    Discretionary Review Dismissed Sept. 14, 2005.

      Kenneth W. Smith, Law Office of Kenneth W. Smith, Houston, for Appellant.
    Rikke Burke Graber, Assistant District Attorney, Houston, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS

TIM TAFT, Justice.

Appellant, Carroll Dwayne Young, was charged with aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021 (Vernon 2004). A jury found appellant guilty and assessed punishment at 75 years in prison and a $5,000 fine. This Court sustained appellant’s fourth point of error, reversed the judgment, and remanded the cause to the trial court. Young v. State, 73 S.W.3d 482 (Tex.App.-Houston [1st Dist.] 2002, pet. granted). The Court of Criminal Appeals granted the State’s petition for review and reversed this Court’s judgment, overruling appellant’s fourth point of error. Young v. State, 137 S.W.3d 65, 72 (Tex.Crim.App.2004). Pursuant to the Court of Criminal Appeals’ order, we now address appellant’s remaining complaints: (1) whether the trial court denied appellant due process by refusing his request for a competency examination; (2) whether the trial court erred by refusing to impanel a jury to determine competency; (3) whether the trial court denied appellant due process by denying his motion to recuse; (4) whether the trial court erred by refusing to allow appellant to present jurors as live witnesses at his motion-for-new-trial hearing; (5) whether the trial court deprived appellant of an adequate record on appeal by refusing to allow him to present jurors as live witnesses at the motion-for-new-trial hearing; and (6) whether the trial court erred by denying appellant’s motion for new trial. We affirm.

Facts

During 1998, appellant often visited the home of his brother and sister-in-law, who lived with their two daughters, the six-year-old complainant and her one-year-old sister. Appellant visited on weekends and spent the night several times. Appellant bought the complainant toys and often asked to take her to the movies or to eat pizza.

Appellant sexually assaulted the complainant on several occasions. Appellant touched the inside of the complainant’s genitals on each of those occasions. On November 21, 1998, the complainant and her mother visited the complainant’s grandmother. Her grandmother asked the complainant whether appellant had ever done anything wrong to her. The complainant said, ‘Yes,” turned very red, and became embarrassed. Using a teddy bear, the complainant demonstrated to her grandmother how she had been touched. The complainant indicated that appellant had fondled her breasts and genitals. Later, the complainant told her grandmother about other incidents in which appellant had touched her. After the complainant had told her grandmother and mother what had happened, her mother reported the events to Children’s Protective Services and took the complainant to the Children’s Assessment Center, where she was examined and interviewed by Dr. Girardet. Dr. Girardet’s medical finding neither proved nor disproved abuse.

Competency

In points of error one and two, appellant contends that the trial court erred by denying his request for a psychiatric examination for competency and by refusing to impanel a jury to determine competency to stand trial.

We review a trial court’s decision to deny a defendant a psychiatric examination to determine competency for abuse of discretion. Bigby v. State, 892 S.W.2d 864, 885 (Tex.Crim.App.1994); Hall v. State, 808 S.W.2d 282, 285 (Tex.App.-Houston [1st Dist.] 1991, no pet.). At a pre-trial competency inquiry, the trial court determines whether there is some evidence — a quantity more than none or a scintilla— that rationally may lead to a conclusion of incompetency. Alcott v. State, 51 S.W.3d 596, 601 (Tex.Crim.App.2001). A person is incompetent to stand trial if the person does not have a sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding or a rational as well as factual understanding of the proceedings against the person. Act of May 18, 1977, 65th Leg., R.S., ch. 596, SI, 1977 Tex. Gen. Laws 1458 (amended 2003) (current version at Tex. Code CRiM. PROC. Ann. art. 46B.003(a) (Vernon Supp.2004-2005)). Only after the competency inquiry has been held and the court has determined that there is some evidence to support a finding of incompetency is it necessary to hold a competency hearing before a jury. Alcott, 51 S.W.3d at 601.

Appellant filed a motion for a psychiatric examination to determine competency on the day that trial was scheduled to begin. At the hearing on that motion, appellant’s trial counsel stated that he believed that appellant had the capacity to reason and to think, but was “slow in obtaining ideas.” Appellant’s counsel claimed that appellant was suffering from a delusional disorder manifested by appellant’s inability to process the consequences of his decisions. Specifically, counsel stated that appellant had decided on one particular day to plead his case, but two days later, after he had had a “visit with God” and talked to his mother, appellant changed his mind. Defense counsel also noted that appellant’s previous attorney had asked if appellant was retarded and that appellant’s neighbors thought of him as somewhat slow. Appellant’s trial counsel also stated, however, that appellant understood ideas if they were explained to him, that appellant was able to answer questions fairly well, and that appellant did not have trouble reciting facts. Additionally, the trial court elicited from defense counsel that, during a previous recusal hearing, appellant’s testimony had consisted of appropriate responses to questions on direct and cross-examination and that the reporter’s record from that hearing did not reflect that appellant had misunderstood what had been asked. The court concluded that there was no evidence to support the conclusion of incompetency.

It is not enough for counsel to allege unspecified difficulties in communicating with the defendant; rather, such information must be specific and illustrative of a present inability to communicate with the defendant. Moore v. State, 999 S.W.2d 385, 394 (Tex.Crim.App.1999). An appellant’s decision to oppose his attorney’s recommendations, although perhaps less than tactically prudent, could as easily support a conclusion that appellant was competent as that he was incompetent. Arnold v. State, 873 S.W.2d 27, 36 (Tex.Crim.App.1993). Because appellant failed to show that he lacked sufficient ability to consult with his attorney or to understand the proceedings against him, the trial court did not abuse its discretion by denying appellant’s request for a psychiatric examination. Because the trial court did not abuse its discretion by finding no evidence of incompetence, neither did the court abuse its discretion by refusing to impanel a jury to hear the issue. See Alcott, 51 S.W.3d at 601.

We overrule appellant’s first two points of error.

Motion to Recuse

In point of error three, appellant contends that the trial court erred in denying his motion to recuse. Specifically, appellant contends that the trial court was disqualified because it had demonstrated bias during the competency hearing, voir dire, and trial by tending to side with the State on objections and allegedly assuming the role of prosecutor.

However, in appellant’s motion to re-cuse, he contended that the trial court should be disqualified for being a fact witness in a grievance proceeding against appellant’s original attorney and because the court set appellant’s case for trial the same day that another of appellant’s convictions had become final.

An appellant’s trial objection must comport with his objection on appeal, or error is waived. Tex.R.App. P. 33.1(a)(1)(A); Penry v. State, 903 S.W.2d 715, 753 (Tex.Crim.App.1995). Because the ground in appellant’s trial motion does not comport with his assertions on appeal, any error is waived. See Tex.R.App. P. 33.1(a)(1)(A).

We overrule point of error three.

Motion for New Trial

In points of error five through seven, appellant contends that the trial court erred in refusing his request to present jurors as live witnesses at the hearing on the motion for new trial, thus denying him an adequate record on appeal, and that the court erred in denying his motion for new trial. Appellant’s requested remedy is to remand for a hearing on his motion for new trial with orders for the trial court to allow appellant to subpoena the jurors.

It is well established that the granting or denying of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). We do not substitute our judgment for that of the trial court, but, rather, decide whether the trial court’s decision was arbitrary or unreasonable. Id.

In his motion for new trial, appellant contended that the jurors were prejudiced by (1) a bailiffs efforts to inform them that appellant was incarcerated, by leaving appellant’s shirt in the holdover cell area and clanking the holdover cell door during breaks in the trial, and (2) a deputy’s remark in the presence of the jurors that appellant was a “Bible-toting pervert.” Appellant supported his motion with affidavits from appellant’s two holdover cellmates, who swore that they had heard a bailiff make the “pervert” statement in front of the jurors, and with his own affidavit, swearing that his shirt had been left in the holdover cell area, that the holdover cell door made clanking noises when he was incarcerated during trial breaks, and that he had told his trial attorney immediately after lunch recess the second day of trial that some of the prisoners had heard a deputy insult appellant. After the trial, in an attempt to corroborate the allegations of misconduct, appellant’s counsel tried to contact jurors by phone and mailed them affidavits in the form of questionnaires.

Despite the trial court’s having advised the lawyers for both sides that it would conduct the healing on appellant’s motion for new trial by affidavits, appellant’s counsel attempted to subpoena the jurors. Having filed the request for subpoenas at central filing, rather than with the courtroom clerk, however, the process server did not receive the subpoena requests timely enough to serve them. During the initial hearing on the motion for new trial, appellant’s counsel asked the trial court for additional time to subpoena the jurors. The trial court repeated its determination that the hearing would be conducted by affidavits rather than live testimony. The trial court asked if appellant’s counsel would still like 10 days to supplement the record, and, when appellant’s counsel said that he would, the trial court reset the hearing on appellant’s motion for new trial until 10 days later.

At the second hearing on appellant’s motion for new trial, the trial court asked if appellant’s counsel had anything more to offer. Counsel requested the opportunity to subpoena jurors to present live witnesses. When the trial court expressed surprise that defense counsel had not done so already, appellant’s counsel said that he had not done so because the trial court had specifically told him that it would not allow the jurors to be called to testify. When the trial court asked if there had been any efforts on counsel’s behalf to contact the jurors to see if they would provide affidavits, counsel said that he had previously contacted them both in writing and orally, that two of the 12 had responded in writing, that he had spoken with several who had actually answered the phone, that he had most of them on voice mail, and that he left messages more than once with some who would not respond. At the first hearing, appellant’s counsel had said that there was a clear pattern that the jurors did not wish to respond to his questions and that “for whatever reason they in unison almost have refused to respond in any way.”

Nothing prevents counsel from contacting jurors and attempting to elicit information from them; however, jurors have no obligation to cooperate with defense counsel’s investigation. See Tex.R. Evid. 606(b); Jackson v. State, 992 S.W.2d 469, 475 (Tex.Crim.App.1999). At the motion-for-new-trial hearing, appellant’s counsel recognized that jurors have a right not to talk to him, but urged the court to allow him to subpoena jurors as the only way he could obtain their testimony about the incidents raised in appellant’s motion for new trial. On appeal, appellant recognizes that subpoenas may not be used as a post-verdict discovery vehicle just because jurors are uncooperative. Appellant claims that he has brought himself within the exception to this rule by showing there was an outside influence on the jurors.

Appellant relies on Stephenson v. State, 494 S.W.2d 900 (Tex.Crim.App.1973). In Stephenson, defense counsel had subpoenaed three jurors who had told counsel about certain jury misconduct and who had said that they would not sign affidavits, but had indicated that they would testify if subpoenaed. Id. at 908. Even though the jurors were present and willing to testify, the trial court refused to allow them to do so because there had been no affidavit, of a juror or other person in a position to know the facts, attached to the motion for new trial. Id. The Court of Criminal Appeals held that the defense attorney’s affidavit, swearing to the facts of his conversations with the jurors, was sufficient to have allowed him to present the testimony of the witnesses. Id. at 909. Nevertheless, the error in the trial court’s disallowing the jurors to testify was found to be harmless in the absence of any testimony or proffer of testimony offered by defense counsel as to what the witnesses would have said. Id.

Texas Rule of Appellate Procedure 21.7 allows the trial court in a criminal case to receive evidence on a motion for new trial by affidavit or otherwise. Tex.R.App. P. 21.7. Here, the trial court recognized appellant’s right to have a hearing on his motion for new trial, but determined the issue could be decided by affidavits. Counsel for appellant claimed to be unable to obtain affidavits because the jurors would not give them. There are two notable factors that may have caused the trial court to decide to hold the hearing by affidavit and not to trouble the jurors in this case by requiring their live testimony. First, the trial court may have decided to hear the matter by affidavit because appellant admitted in his sworn motion for new trial that he had informed his trial attorney about the bailiffs insult just after the lunch recess of a trial that continued for the rest of the day; nonetheless, counsel had failed to bring the matter to the trial court’s attention at that time, even though the jurors were still present at the court to be questioned about whether they had heard any such remark. Second, the trial court may have been unpersuaded to change its ruling regarding hearing the matter by affidavit based on defense counsel’s failure either: (1) to proffer to the court what he had learned from those jurors with whom he had communicated; or (2) to make any further efforts during the 10 days the trial court had continued the hearing.

Moreover, defense counsel did not attempt to bring himself within the Stephenson case by subpoenaing the jurors for the second hearing in hopes that one of them would be willing to testify to the matter asserted. Although the trial court indicated that it would proceed by affidavit only, it did not prohibit counsel from issuing subpoenas, nor did the State move to quash the subpoenas the first time that counsel requested them. Defense counsel had initiated an attempt to subpoena the jurors for the first hearing, despite the trial court’s having made it clear that the hearing would be by affidavit. Because the trial court began the second hearing by asking if defense counsel had subpoenaed the jurors, it appears that defense counsel missed an opportunity to present jurors as witnesses if any could support appellant’s claims. It also appears that counsel did nothing further in the 10 days that the trial court gave him to secure further evidence supporting his motion for rehearing. If any efforts had been made to locate the deputy who allegedly had made the insulting remarks, counsel did not inform the trial court about those efforts.

It is noteworthy that appellant is not complaining about a denial of compulsory process. It is understandable that he makes no such argument on appeal, having failed to alert the trial court regarding such a complaint at trial. Under the totality of these circumstances, we hold that the trial court did not abuse its discretion in conducting the hearing on appellant’s motion for new trial by affidavit and denying it.

We overrule appellant’s points of error five through seven.

Conclusion

We affirm the judgment of the trial court.

Justice JENNINGS, concurring.

TERRY JENNINGS, Justice,

Concurring Opinion on Remand from the Court of Criminal Appeals.

I fully join the majority opinion in its discussion of appellant’s points of error one through three. However, I write separately to concur in the majority’s decision to overrule appellant’s points of error five through seven.

In points of error five through seven, appellant argues that the trial court erred in denying his motion for new trial because the court erroneously refused to allow him to present jurors as live witnesses, depriving him of an adequate appellate record and his federal due process rights. Appellant requests that this Court abate the appeal “with orders to allow [him] to call jurors as witnesses at another motion for new trial hearing.”

In support of his argument, appellant relies on Stephenson v. State, 494 S.W.2d 900, 909 (Tex.Crim.App.1973), in which the Court of Criminal Appeals held that a trial court erred in refusing to allow, in a hearing on a motion for new trial, juror testimony concerning juror misconduct. In reaching its decision, the court discussed the general rule that “a motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts.” Id. at 908-09. Although the court emphasized that the rule is necessary “to discourage ‘fishing expeditions’ in an effort to impeach a jury verdict,” it explained that “such an affidavit is not absolutely necessary but that the failure to secure it might satisfactorily be explained or accounted for, in which event it would be the duty of the trial court to hear evidence in support of the allegations.” Id. (quoting Clark v. State, 163 Tex.Crim. 54, 289 S.W.2d 288, 290 (1956)). The court concluded that the trial court had erred because Stephenson’s counsel, in his motion for new trial, had specified by name three jurors who had related juror misconduct to him, and he explained that they had refused to sign affidavits, although they had assured him that they would testify to the facts alleged if subpoenaed. Id. at 909.

Subsequently, in overruling a defendant’s contention that a trial court had deprived him of effective assistance of counsel by “quash[ing] post-trial defense subpoenas for jurors,” the Court of Criminal Appeals explained that, assuming that the defendant was entitled to subpoena the jurors as witnesses under the Compulsory Process Clause, “the defendant would bear the burden of showing that the testimony sought is material.” Jackson v. State, 992 S.W.2d 469, 476 (Tex.Crim.App.1999). The court then emphasized that Stephenson was distinguishable from Jackson’s case because (1) Stephenson had provided evidence that the jurors actually possessed information material to the motion for new trial and (2) his counsel had, in fact, interviewed the jurors who had expressed a willingness to testify. Id.

Likewise, in the instant case, although appellant has satisfactorily explained his inability to obtain affidavits from jurors, he has not shown that the jurors actually possessed information material to his motion for new trial or that his counsel had talked to jurors who had expressed a willingness to testify.

Although appellant does not expressly assert a compulsory process challenge, he is in fact requesting that this Court order the trial court to allow him to compel all 12 jurors in his case to testify in a live hearing on his motion. However, it is well established that, in order to exercise a compulsory process right, “[a] defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness’s testimony would be both material and favorable to the defense.” Coleman v. State, 966 S.W.2d 525, 528 (Tex.Crim.App.1998). It is true that a defendant who has not had an opportunity to interview a witness may make the necessary showing by establishing the matters to which the witness might testify and the relevance and importance of those matters to the success of the defense. Id. Nevertheless, the defendant must meet the burden of showing materiality and favorableness to prevent “frivolous and annoying requests” that could make the proceeding “endless and unduly burdensome on the Court and all officers thereof.” Id. (quoting Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.1983)).

Even if appellant had expressly asserted a compulsory process challenge, his argument that this Court should order the trial court to allow him to compel all 12 jurors in his case to testify in a live new-trial hearing fails. Although appellant presented his affidavit and the affidavits of two of his holdover cell mates to the trial court in support of his motion, a review of these affidavits reveals that the trial court could have reasonably found that this evidence was simply too tenuous to support bringing all 12 jurors back into court. Additionally, appellant did not demonstrate that any of the 12 jurors actually would have provided testimony both material and favorable to him in his effort to secure a new trial. The record thus supports an implied finding by the trial court that compelling the jurors to come back to court under these circumstances would have resulted in a fishing expedition to impeach their verdict.

Accordingly, I concur in the majority’s conclusion that the trial did not abuse its discretion in denying appellant’s motion for new trial on the grounds that the trial court erroneously refused to allow appellant to present the jurors as live witnesses.

      . Appellant’s fourth point of error had contended that the trial court erred in denying a mistrial because the court and a prospective juror conversed, in front of the venire, about the fact that the prospective juror had worked with sexually abused children for 25 years and had yet to see a case in which a child was lying about the abuse. The Court of Criminal Appeals held that the error could have been cured by an instruction to disregard and that the trial court did not err in denying appellant's motion for mistrial, which was made without having objected or having asked for an instruction to disregard. Young, 137 S.W.3d at 72.

      . In reality, appellant could not have complained about the trial judge’s behavior in the competency hearing, voir dire, or trial in his motion to recuse because the motion was filed on August 16, 1999, which was before the competency hearing, voir dire, or trial that all occurred on or after August 20, 1999.

      . This was at a time when jurors could be questioned about jury misconduct occurring during jury deliberations. Present rule 606(b) of the Texas Rules of Evidence does not allow a juror to testify, or to offer an affidavit, as to any matter or statement occurring during the juiy’s deliberations. See Tex.R. Evid. 606(b). As appellant points out, however, a juror may still testify about outside influences impacting the jury, which is what appellant is raising here. See id.

      . U.S. Const, amends. V, XIV.

      . U.S. Const, amend. VI.


author: TIM TAFT, Justice.

text:
    In re Darrell L. LAUSCH, Relator.
    No. 01-04-01068-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 3, 2005.

      Anthony P. Griffin, Anthony P. Griffin, Inc., Galveston, TX, for Appellant.
    Frank A. Hale, Pasadena, TX, for Ap-pellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

Relator, Darrell L. Lausch, requests ha-beas corpus relief from a September 10, 2004 trial court “Order Affirming Associate Judge’s Order Holding Respondent in Contempt For Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment.” Relator asserts that he is illegally restrained under this order because, among other things, his due process rights were violated when the trial court did not follow Texas Family Code statutory procedures in issuing the order. We deny relief.

Facts

On June 23, 2003, the trial court signed temporary orders (1) making relator the temporary joint managing conservator of the Lausches’ son, Joshua, and (2) making real party in interest, Angie Lausch, the temporary joint managing conservator of their other sons, Jacob and Jonah. As child support for Jacob and Jonah, the trial court ordered relator to pay $200 per week, starting June 27, 2003, with a like payment being due on each Friday thereafter until further order of the court. In the order, the trial court enjoined the parties from transferring the property belonging to both or either of them.

On August 19, 2004, the associate judge heard Angie’s motion for enforcement of the trial court’s June 23, 2003 child support order. After the hearing, from the bench, the associate judge announced that he found relator’s child support payments to be $3,765 in arrears, and he rendered judgment in that amount, plus $750 in attorney’s fees and court costs against relator. The associate judge also stated that he found relator in contempt, sentenced him to 120 days in jail, and ordered that relator remain confined there until the child support arrearage was paid. He informed counsel that he had prepared an associate judge’s report to the trial court and asked them to sign it to indicate that they had received his ruling, which they did. The associate judge asked Angie’s counsel to submit an order to him by four o’clock that day. Galveston County Sheriffs Office personnel escorted relator to jail after the hearing.

In the handwritten “Associate Judge’s Report,” the associate judge found as follows:

The court finds Respondent is in arrears in the payment of child support in the sum of $3,675. Judgment is rendered in said sum plus attorney’s fees of $750 and court costs over and against Respondent Darrell L. Lausch and in favor of Angie M. Lausch, Petitioner.
Respondent is found in contempt and sentenced to 120 days in the Galveston County Jail. Respondent shall remain confined in the Galveston County Jail until the child support arrearage set forth above is paid plus ... $750 in attorney fees....
F. Hale to prepare orders by 8/19/04 @ 4:00 p.m.
Us/ Stephen Baker]

As requested from the bench by the associate judge, and as directed by the associate judge in his report, Angie’s counsel, Frank Hale, prepared an order. The record shows that the trial court, the Honorable Janis Yarbrough, signed the order the next day, August 20, 2004.

The six-page order, entitled, “Order Holding Respondent in Contempt For Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment,” varied from the 11-line body of the Associate Judge’s Report in the following respects:

(1)The order set forth the language of the prior child support order sought to be enforced.
(2) It set out 19 separate violations (19 successive weeks, 4/9/04 to 8/13/04) of the child support order, including the date of the violation and amount of money delinquent on that date. It also found each violation to be a separate act of contempt.
(3) It found that, on the 19 dates set out, relator was able to pay the child support amounts due on those dates and that, on the day of the hearing, he was able to pay the amount of child support due.
(4) It contained a section entitled, “Criminal Contempt,” in which it assessed 120 days’ confinement for each of the 19 violations and ordered that the 19 120-day periods run and be satisfied concurrently.
(5) It contained a section entitled, “Civil Contempt,” which ordered that, after relator had satisfied the punitive contempt confinement, he should thereafter be further confined until relator (a) paid Angie $3,675 and (b) paid $750 in attorney’s fees to Angie.

On August 23, 2004, the trial court, citing Texas Family Code section 201.013(c), signed an order releasing relator, stating that he had been confined more than 72 hours. In the order, the trial court also set relator’s appeal of the findings of the associate judge for September 10, 2004.

On September 10, 2004, the trial court held a hearing regarding relator’s appeal of the associate judge’s report. At the beginning of the hearing, a discussion of the notice of appeal occurred when Angie’s attorney moved to dismiss the appeal on the ground that relator had not complied with Texas Family Code section 201.015 in that he had not set out the particular findings and conclusions of the associate judge to which the relator objected. Angie’s counsel conceded, however, that relator’s notice of appeal did object to the associate judge’s failure to make any findings relative to relator’s indigency.

In response, relator’s counsel stated, “At the time we drew the document up we had never been forwarded a copy of any such [August 20, 2004] order. Only we had the magistrate’s handwritten note in terms of the contempt. We did put in the document ... there was no ruling on the question that he was indigent.... [I]n the proceeding below, we argued to the Associate Judge there is no doubt that he has not paid the support, but the question of indi-gency trumps the question of support.”

The trial court ruled that the only issue before it in the appeal was relator’s indi-gency defense, and, without objection from relator, the trial court restricted the hearing to that issue. At the conclusion of the hearing, the trial court announced from the bench,

This is my ruling. The finding of the Associate Judge is confirmed. I find that respondent did not adequately prove the elements of Section 157.008(b)(1),(2),(8),(4) [regarding indi-gency] and therefore Respondent is remanded to the custody of the Sheriff of Galveston County in accordance with the order from the hearing date of 8-19-04, all per order to be filed. Mr. Hale, you need to have an order to me by 5:00 o’clock today, a copy of which you need to fax to Mr. Griffin prior to faxing it to me for his review. Deputy, I’m ordering you to take Mr. Lausch into custody at this time.

Relator’s counsel then asked the trial court if it could set a bond, pending “appeal,” to which the trial court responded:

Well the order of the Court, if I’m remembering my reading correctly, was that he was to serve 120 days and thereafter he would be released upon the payment of some three thousand some odd dollars. So the order of the Court is that he must serve 120 days prior to release, and then at that point in time I will allow a bond to be made in the amount of thirty-seven hundred dollars.

On September 10, 2004, the trial court signed the “Order Affirming Associate Judge’s Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment.” The order stated in part,

On September 10, 2004, the Court heard DARRELL L. LAUSCH’s Notice of Appeal of Associate Judge’s Findings With Respect to Granting Judgment For Ar-rearage and Commitment. DARRELL L. LAUSCH’s appeal is denied. The associate judge’s findings and Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages and Commitment is affirmed....
7. Findings
The Court finds that the findings of the associate judge are affirmed in all parts and respects. Further, the Order Holding DARRELL L. LAUSCH in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearage, and Commitment signed on August 19, 2004, a copy of which is attached hereto as Exhibit “A” and incorporated herein as though fully set out, is in all things approved and affirmed.
The Court further finds that on the hearing of DARRELL L. LAUSCH’s Appeal, DARRELL L. LAUSCH failed and did not adequately prove the elements of Section 157.008(c)(l)(2) and/or (3) and/04 [sic] (4) and therefore, the Court ORDERS that DARRELL L. LAUSCH, is immediately remanded to the custody of the Sheriff of Galveston County, Texas in accordance with the Order of this Court dated August 19, 2004, a copy of which is attached hereto as Exhibit “A” and incorporated herein as though fully set out.

Exhibit A attached to the September 10, 2004 order exactly conformed with the order signed by the trial court on August 20, 2004, except that on the last page (a) the line to indicate the date signed was blank; (b) above the line for the presiding judge’s signature, someone had drawn a straight line instead of Judge Yarbrough’s signature; (c) the line for Frank A. Hale’s signature for approval as to form was blank; and (d) the district clerk’s file mark showed that the order was filed September 10, 2004, rather than August 20, 2004.

Pursuant to the September 10, 2004 order, the trial court ordered relator incarcerated. He brought this petition for writ of habeas corpus. Conditioned on his posting a suitable bond, we ordered relator released from custody, pending our final determination of his petition for habeas corpus relief.

Standard of Review

The purpose of a habeas corpus proceeding is not to determine the ultimate guilt or innocence of the relator, but only to ascertain whether the relator has been unlawfully confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex.1979). In a habeas corpus proceeding, the order or judgment challenged is presumed to be valid. Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex.App.-Houston [1st Dist.] 1990, orig. proceeding). A relator bears the burden to show that the contempt order is void and not merely voidable. In re Pruitt, 6 S.W.3d 363, 364 (Tex.App.-Beaumont 1999, orig. proceeding). The appellate courts may order the contemnor released only if the judgment is void because of a lack of jurisdiction or because the contemnor was deprived of liberty without due process of law. In re Houston, 92 S.W.3d 870, 875, 875-76 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). The relator must bring forward an adequate record to establish the invalidity of the order of which he complains. See Tex. R.App. P. 52.7(a).

Variance Between Associate Judge’s Report and Trial Court’s Subsequent Orders

In issue one, relator asserts that his due process rights have been violated because the “[underlying Associate Judge’s order is not what was ordered by the Associate Judge in his [handjwritten order/memorandum and is not supportive of the Associate Judge’s oral rendition.” Under this issue, relator asserts three sub-issues.

In sub-issue (a), relator asserts that his confinement cannot stand without a written order reflecting the actual order by the associate judge and not language modified by an advocate. Under sub-issue (b) relator asserts that a nunc pro tunc order is inappropriate. In sub-issue (c), based on his premise that the Associate Judge’s Report, rather than Exhibit A, is the operative document relative to his contempt and confinement, relator asserts that the report lacks the requisite specificity regarding his violation of the support order sought to be enforced and that it is inconsistent with Angie’s pleadings. Relator also again complains that Exhibit A is unsigned.

Turning to sub-issue (a), contrary to the thrust of relator’s arguments, the associate judge’s oral pronouncements from the bench and his handwritten Associate Judge’s Report do not constitute a final order of enforcement. See Stein v. Stein, 868 S.W.2d 902, 904 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (holding that under former Texas Government Code section 54.007, predecessor statute to current Texas Family Code section 201.007, setting out the powers of an associate judge, an associate judge does not have the power to render judgment). The Texas Family Code contemplates only two very limited circumstances in which an associate judge may render and sign a final judgment: “one agreed to in writing as to both form and substance by all parties or a final default order.” Tex. Fam. Code Ann. § 201.007(a)(14)(A),(B) (Vernon Supp.2004-2005). The situation in this case fits neither of these categories. Instead, the associate judge’s handwritten report constituted findings of fact on the evidence, conclusions of law, and an order of the detention of a party found guilty of contempt, pending approval of the court as provided in section 201.018. See Tex. Fam. Code § 201.007(a)(8),(9),(13) (Vernon Supp. 2004-2005). The associate judge’s oral pronouncement from the bench and his handwritten report evidence their interim nature and contemplate an order to follow. The Texas Family Code also contemplates a document beyond the associate judge’s report: an order that the associate judge may recommend to the referring court to be rendered in a case. Tex. Fam.Code Ann. § 201.007(a)(10) (Vernon Supp.2004-2005).

From the foregoing, the conclusion is inescapable that the associate judge’s August 19, 2004 handwritten report was not a final, immutable order of enforcement. Because Texas Rule of Civil Procedure 816, allowing for the correction of clerical mistakes in the record of any judgment (nunc pro tunc) applies only to final judgments, it follows that the referring court’s signature on the typed, modified order on August 20, 2004 could not be an improper attempt to modify the associate judge’s August 19, 2004 handwritten document under the guise of correcting clerical errors. The record does not disclose the circumstances under which the trial court signed the August 20, 2004 order. In any event, the trial court appears to have signed the order prematurely because, as provided by Texas Family Code section 201.015(a), within three days after relator received notice of the Associate Judge’s Report, relator appealed it to the trial court. See Tex. Fam.Code Ann. § 201.015(a) (Vernon 2002). The trial court’s signing an order adjudicating the issues considered by the associate judge before the three-day appeal period expired would preclude the right to appeal provided by section 201.015.

Relator argues that the referring court is restrained from attaching the unsigned order (Exhibit A to the September 10, 2004 order) under Texas Family Code section 201.013(b), which provides in relevant part: “If an appeal to the referring court is not filed or the right to an appeal to the referring court is waived, the findings and recommendations of the associate judge become the order of the referring court only on the referring court’s signing an order conforming to the associate judge’s report.” Tex. Fam.Code Ann. § 201.013(b) (Vernon Supp.2004-2005). This statute does not apply to the instant case, however, because relator did file an appeal to the referring court and has not shown that he waived his right to appeal. Accordingly, this argument is without merit.

Relator additionally argues that:

The Referring Court herein affirmed the Associate Judge’s order, however the af-firmance was not the written and/or oral findings but the modified order signed prior to the three day period accorded in which to appeal.... In addition, when the referring order was forwarded to the County Jail, it attached the modified order which contained no signature.... The Referring Court’s order purported to attach the Associate Judge’s order; however, this is the furthest thing from the truth. The order, in the best case scenario, is an order signed by the Referring Court within the 72 hour appeal period that does not conform to the Associate Judge’s ruling. In the worst case scenario, it is an unsigned order.

However, the September 10, 2004 order was entitled, “Order Affirming Associate Judge’s Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment.” (Emphasis added.) In this order, the trial court referred to Exhibit A as the associate judge’s order as follows: “The associate judge’s findings and Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment For Arrearages and Commitment is affirmed.” (Emphasis added.) In two other places within the September 10, 2004 order the trial court again referred to Exhibit A, once by its title “Order Holding DARRELL L. LAUSCH in Contempt for Failure to Pay Child Support, Granting Judgment for Ar-rearage, and Commitment”, but, in both instances, referring to the order as having been “signed” or “dated” August 19, 2004:

The Court finds that the findings of the associate judge are affirmed in all parts and respects. Further, the Order Holding DARRELL L. LAUSCH in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearage, and commitment signed on August 19, 200k, a copy of which is attached hereto as Exhibit “A” and incorporated herein as though fully set out, is in all things approved and affirmed....
the Court ORDERS that DARRELL L. LAUSCH, is immediately remanded to the custody of the Sheriff of Galveston County, Texas in accordance with the Order of this Court dated August 19, 200k, a copy of which is attached hereto as Exhibit ‘A’ and incorporated herein as though fully set out.

(Emphasis added.). The trial court’s reference to Exhibit A is to the order signed erroneously by the trial court on August 20, commemorating the hearing held before the associate judge on August 19.

Whatever procedural irregularities are present, these discrepancies are immaterial to the determination of relator’s petition because, having afforded relator his appeal of the Associate Judge’s Report, the trial court, as the referring court, had the authority to adopt, to modify, or to reject the associate judge’s report, including any proposed order. See Ex parte Skero, 875 S.W.2d 44, 46 (Tex.App.-Houston [1st Dist.] 1994, orig. proceeding). Having attached Exhibit A to the September 10, 2004 order and, in the body of the September 10, 2004 order, having used language that explicitly incorporated Exhibit A by reference, the trial court made Exhibit A part of the operative order. Because the trial court signed the September 10, 2004 order, the fact that the trial court’s signature did not appear on Exhibit A is immaterial.

In a footnote, relator complains that the handwritten Associate Judge’s Report contained the language “confinement until payment of arrearage,” but Exhibit A contained “language of criminal contempt for an uncertain period of time in addition to the arrearages.” By this complaint, relator asserts that the handwritten Associate Judge’s Report did not provide for criminal contempt confinement, but, rather, provided only for civil contempt confinement. That is, relator “carried the keys to the jail” in his pocket so that, if he paid the child support arrearage and attorney’s fees sooner than the expiration of 120 days’ confinement, he was entitled to be released on whatever day shy of the 120 days that he paid those items.

In Ex parte Werblud, the Supreme Court distinguished civil and punitive contempt as follows:

A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience....
Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the eotem-nor is being punished for some completed act which affronted the dignity and authority of the court.

Ex parte Werblud, 536 S.W.2d 542, 545 (Tex.1976) (citations omitted). Whether one considers the language of the handwritten Associate Judge’s Report or the language of Exhibit A, the practical effect is the same. A fair reading of both documents makes it clear that relator is being punished for past contempt by an unconditional confinement of 120 days and that upon the confinement’s completion, future confinement, if any, would be of a civil, coercive nature until he fulfilled the prescribed conditions for his release. Relator’s complaint concerning the criminal contempt provision of Exhibit A cannot serve as a basis for habeas corpus relief.

In sub-issue (c), based on his premise that the Associate Judge’s Report, rather than Exhibit A, was the operative document relative to his contempt and confinement, relator asserts that the report lacked the requisite specificity regarding his violation of the support order sought to be enforced and that it was inconsistent with Angie’s pleadings. Relator also again complains that Exhibit A was unsigned. Our analysis above for sub-issues (a) and (b) has already established that the September 10, 2004 order, including Exhibit A, was the operative document and not the Associate Judge’s Report. We have also resolved against relator his complaint regarding the lack of a signature on Exhibit A. Therefore, sub-issue (c) does not provide a basis for habeas corpus relief.

We overrule issue one.

Impact of the September 10, 2004 Order on Prior Orders

In issue two, relator asserts that his due process rights were affected when the referring court’s affirmance ignored the court’s prior orders with respect to real property. Relator presents no argument under this issue. Texas Rule of Appellate Procedure 52.3(h) requires that a petition contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record. Tex.R.App. P. 52.3(h). Because relator has failed to meet this requirement with respect to issue two, he has waived this challenge. In re Kuhler, 60 S.W.3d 381, 384 (Tex.App.-Amarillo 2001, orig. proceeding).

Bond Provision Ambiguity

In issue three, relator asserts that his due process rights were denied because the following language from the September 10, 2004 order is ambiguous: “[A]fter Respondent, DARELL L. LAUSCH, has served 120 days in Galveston County Jail, bond for DARRELL L. LAUSCH is set for purposes of the release from Galveston County Jail in the amount or $3,400.00 which shall be posted by cash only.” Relator contends that it is unclear whether he is required to remain confined after the 120 days have passed if he does not post bail. Relator has not shown that he has served the 120 days of punitive contempt confinement. Thus, this argument is not ripe for consideration. In re Anascavage, 131 S.W.3d 108, 112 (Tex.App.-San Antonio 2004, orig. proceeding).

Also under this issue, relator again asserts that the September 10, 2004 order should not stand because it relies on the unsigned Exhibit A and that Exhibit A is not reflective of the Associate Judge’s Report. Having previously resolved these arguments against relator, we overrule issue three.

Due Process Impact of Trial Court’s Signature on August 20, 2004 Order

In issue four, relator asserts that his due process rights were denied when the referring court signed the August 20, 2004 order. Specifically, relator argues that the August 20, 2004 order is void.

As discussed, earlier, the trial court erred in signing the typewritten order on August 20, 2004, before the expiration of relator’s statutory three-day period to file an appeal of the associate judge’s report. See Kennedy v. Kennedy, 125 S.W.3d 14, 17 n. 2 (Tex.App.-Austin 2002, pet. denied) (“Ordinarily, the referring trial court cannot approve and adopt an associate judge’s recommended order until after it hears a party’s appeal ....”) (citing Santikos v. Santikos, 920 S.W.2d 731, 734 (Tex.App.-Houston [1st Dist.] 1996, writ denied)). Although the trial court erroneously signed the order on August 20, 2004 and adopted it before the hearing on relator’s appeal, the trial court’s doing so did not render the order void. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995) (holding that although district court should have held a hearing on Owens’s appeal before signing master’s report, its failure to do so did not make order void.). Mere failure to follow proper procedure will not render a judgment void. Id.

Here, because the August 20, 2004 order was the product of not following proper procedure, the order was voidable. By granting relator an appeal on the issue of indigency, the only issue that he cared to appeal, the trial court cured any impairment of relator’s due process rights. Further, the trial court’s use of an undated, unsigned version of the typewritten order that it had mistakenly signed on August 20, 2004, as Exhibit A to the September 10, 2004 order appears to have been a recognition of its earlier error. The trial court’s reincarnation and adoption of the order under the proper circumstances— following the appeal hearing — cured the error.

We overrule issue four.

Inability-to-Comply Defense

In issue five, relator asserts that his due process rights were denied when, in light of his asserted indigency, the trial court ordered him confined.

At the September 10, 2004 appeal hearing, relator was the only witness. The trial court specified that it was interested in relator’s ability to pay the ordered child support between the period of April 1, 2004 and the date of the hearing. Relator testified that he was injured in August 2003 and attempted to continue to run his business. He was unemployed, however, from April 12, 2004 until July 22, 2004 because of back surgery and had no income with the exception of a check in July. During this time, he was responsible for the care of the oldest child and no longer had the ability to borrow money from anyone.

On cross-examination, relator gave inconsistent testimony about whether in March 2004 he owned $40,000 worth of tools against which he could have borrowed money to make his April 2004 child support payments. After relator had testified that he did not remember telling the associate judge in an earlier hearing that, on July 22, 2004, he had had $396 in the bank and chose not to pay the $200 support payment due the next day, Angie’s counsel impeached relator with the transcript from the earlier hearing in which relator had given that testimony.

On cross-examination, relator also testified that he and his wife owned a piece of property, free of encumbrances, on which they had earlier been offered $27,000, and that he had not sought his wife’s and the court’s consent to reheve the property from the court’s injunction on property sales so that he could pay his April or June child support payments.

The involuntary inability to comply with an order is a valid defense to criminal contempt. Ex parte Chambers, 898 S.W.2d 257, 261 (Tex.1995). The relator bears the burden of proving his inability to comply. Id. We do not weigh the evidence, but determine only if there is no evidence to legitimize the relator’s confinement. Id. Thus, the issue in habeas corpus review is whether the relator has conclusively established that he was involuntarily unable to pay. Id. A person cannot be held in contempt for failing to pay child support if he establishes that he (1) lacked the ability to provide support in the amount ordered; (2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the needed funds; (3) attempted unsuccessfully to borrow the needed funds; and (4) knew of no source from which the money could be borrowed or legally obtained. Tex. Fam.Code Ann, § 157.008(c)(l)-(4) (Vernon 2002).

Based on the impeachment evidence that, on July 22, 2004, relator had had $396 in the bank and did not make the $200 child support payment that he owed the next day, there was some evidence to support the trial court’s conclusion that relator had failed to establish that, on July 23, 2004, he lacked the ability to provide the support ordered. The evidence of the $27,000 lot and that relator had not sought Angie’s or the trial court’s consent to borrow money against the lot to pay his April and June child support payments is some evidence to support the trial court’s conclusion that relator had not established that he lacked property that could be mortgaged to pay his April and June child support payments.

We cannot say that relator has conclusively established his involuntary inability to pay child support payments so as to entitle him to habeas corpus relief. We overrule issue five.

Conclusion

We deny relator’s petition for habeas corpus relief and remand relator to the custody of the Galveston County Sheriff pursuant to the trial court’s September 10, 2004 “Order Affirming Associate Judge’s Order Holding Respondent in Contempt for Failure to Pay Child Support, Granting Judgment for Arrearages, and Commitment” and the commitment order of this Court. See Tex.R.App. P. 52.8(a).

      . Page 1 of the reporter’s record of the hearing indicates that the hearing was held on August 18, 2004, but the Associate Judge’s Report and the docket sheet show that the hearing occurred on August 19, 2004.

      . The trial court (sometimes hereafter referred to as "referring court”) referred the motion for enforcement to its associate judge. See Tex. Fam.Code Ann. § 201.005 (Vernon 2002).

      .The associate judge changed this amount to $3,675 in his Associate Judge’s Report.

      . An order by an associate judge for the temporary detention or incarceration of a witness or a party shall be presented to the referring court on the day the witness or party is detained or incarcerated. The referring court, without prejudice to the right of appeal provided by Section 201.015, may approve the temporary detention or incarceration or may order the release of a party or witness, with or without bond, pending appeal. If the referring court is not immediately available, the associate judge may order the release of the party or witness, with or without bond, pending appeal or may continue the person’s detention or incarceration for not more than 72 hours.
      Tex. Fam.Code Ann. § 201.013(c) (Vernon Supp.2004-2005).

      . See Jenkins v. Jenkins, 16 S.W.3d 473, 482 (Tex.App.-El Paso 2000, no pet.).

      . In Skero, as in our case, a master found Skero- in contempt and sentenced him to a certain number of days’ confinement. Id. at 45. After the trial court had reheard the contempt because of a question regarding Skero's right to representation, the trial court increased Skero’s sentence to 90 days. Id. We held, under Texas Government Code section 54.011, predecessor statute to Texas Family Code section 201.014, that the trial court acted within its statutory discretion in rejecting the master’s determination of the amount of incarceration and arriving at its own determination. Id. at 46.

      . “Respondent is found in contempt and sentenced to 120 days in the Galveston County Jail. Respondent shall remain confined in the Galveston County Jail until the child support arrearage set forth above is paid plus ... $750 in attorney’s fees.”

      . 9. Criminal Contempt ...
      IT IS THEREFORE ORDERED that DARRELL L. LAUSCH is committed to the county jail of Galveston County, Texas, for a period of one hundred twenty (120) days for each separate violation enumerated above.
      IT IS ORDERED that each period of confinement assessed in this order shall run and be satisfied concurrently.
      10. Civil Contempt
      IT IS ORDERED that Respondent, DARRELL L. LAUSCH, shall thereafter be further confined in the county jail of Galveston County, Texas until DARREL L. LAUSCH:
      1. DARREL L. LAUSCH pays $3,675....

      . In initial discussions before the trial court on September 10, 2004, relator’s counsel conceded, "there is no doubt that he has not paid the support, but the question of indigency trumps the question of support.”


author: ELSA ALCALA, Justice.

text:
    Felix Michael KUBOSH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00268-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 3, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      David A. Furlow, Stacy L. Kelly, Thompson & Knight L.L.P, Paul Kubosh, Law Office of Paul Kubosh, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Juliane Phillips Crow, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellant, Felix Michael Kubosh, a surety on a bail bond executed for Gustavo Casas, Sr., challenges the trial court’s final judgment in favor of the State for the full amount of a $75,000 bond plus costs of court, which resulted from Casas’s failure to appear in court, as required by the bail bond. In four issues, Kubosh contends that the trial court erred by rendering judgment in favor of the State. Kubosh contends that the bail bond was invalid as a contract under affirmative defenses recognized by the Rules of Civil Procedure, and therefore, that the agreement was invalid under Chapter 22 of the Code of Criminal Procedure, which exonerates the surety from liability if “the bond is, for any cause, not a valid undertaking in law.” Kubosh also challenges the trial court’s failure to order civil discovery concerning the bond forfeiture and the State’s extradition policies and procedures. We affirm.

Background

Casas was charged by indictment with felony possession of more than 2,000 pounds of marihuana. Kubosh, a licensed bail bondsman, and Raul Ruvalcaba executed a bail bond in the amount of $75,000, as sureties on the bond for Casas, the principal on the bond, to secure Casas’s release from custody pending resolution of the charges. Casas failed to appear and answer the charge against him as required, and the State moved for bond forfeiture. The trial court signed a judgment of forfeiture (judgment nisi) for the full amount of the bond plus costs of court, and an alias capias was issued to arrest Casas.

Kubosh filed an amended answer that included a general denial and two “affirmative defenses authorized under Tex.R. Civ. P. 94: failure of consideration and legal excuse.” The premise underlying Ku-bosh’s purported “affirmative defenses” was his contentions that, (1) after Casas failed to appear in court, the State failed to procure the Mexican government’s timely issuance of a “provisional warrant,” due to the Harris County District Attorneys Office’s inadequate extradition policies concerning bail-jumping defendants, and that, (2) although Mexican officials knew where Casas was, he could not be arrested without the provisional warrant.

Kubosh gave the State notice of intent to take the deposition of a Harris County District Attorney’s office employee, Kim Bryant, but the State moved to quash the deposition and for protection. The State also filed a motion to strike Kubosh’s amended answer. Kubosh subsequently filed applications for subpoenas for witnesses and production of documents.

When the trial court began the bond-forfeiture bench trial on November 19, 2003, the State offered a certified copy of the judgment nisi. Kubosh objected to admitting this evidence by asserting that the State had not complied with his discovery requests. The trial was continued until December. In a hearing held on December 18, 2003, the trial court ruled that Kubosh’s motions to compel discovery were untimely, and that the discovery he requested was irrelevant.

On December 22, 2003, the State again presented certified copies of the judgment nisi and the bail bond executed by Kubosh, Casas, and Raul Ruvalcaba. After the trial court admitted the State’s exhibits over Kubosh’s objections that the State had failed to comply with his discovery motions, the State rested. Kubosh attempted to offer exhibits related to the State’s extradition policies, but the trial court ruled that the exhibits were inadmissible. The trial court ruled in favor of the State and signed a final judgment of forfeiture against Kubosh, Casas, and Ruvalca-ba, jointly and severally, on the full amount of the bond plus costs of court.

Exoneration From Liability Upon Forfeiture

Kubosh contends that he is exonerated from liability for Casas’s failure to appear based on Chapter 22 of the Code of Criminal Procedure, which exonerates the defendant and his sureties if “the bond is, for any cause, not a valid undertaking in law.” Tex.Code CRiM. PROC. Ann. art. 22.13(a)(1) (Vernon Supp.2004-2005). Chapter 22 allows a surety to offer proof on the affirmative defense of exoneration to avoid liability for a bail bond under the following circumstances only:

(a) The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
1. That the bond is, for any cause, not a valid and binding undertaking in law. If it be valid and binding as to the principal, and one or more of his sureties, if any, they shall not be exonerated from liability because of its being invalid and not binding as to another surety or sureties, if any. If it be invalid and not binding as to the principal, each of the sureties, if any, shall be exonerated from liability. If it be valid and binding as to the principal, but not so as to the sureties, if any, the principal shall not be exonerated, but the sureties, if any, shall be.
2. The death of the principal before the forfeiture was taken.
3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appealing.
4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.

TexCode CRiM. PROC. Ann. art. 22.13(a) (Vernon Supp.2004-2005); see Spradlin v. State, 100 S.W.3d 372, 379 (Tex. App.-Houston[1st Dist.] 2002, no pet.).

Article 22.13(a)’s four enumerated causes provide the sole bases by which a defendant and his sureties may be exonerated upon forfeiture of a bond. See id. (The following causes, and no other. ...) (emphasis added); Lyles v. State, 587 S.W.2d 717, 717 (Tex.Crim.App.1979); Rodriguez v. State, 673 S.W.2d 635, 636 (Tex.App.-San Antonio 1984, no writ).

When asked by the trial court whether he had a binding agreement with Casas, or whether he would be presenting any evidence that they did not have a binding agreement, Kubosh responded, “I’m not presenting any evidence on that issue, your honor.” When asked further if he would be presenting evidence on any of the three other affirmative defenses available under article 22.13, Kubosh responded, “no.” We conclude that Kubosh presented no evidence of an affirmative defense that would exonerate himself from liability upon the forfeiture of the bond under Chapter 22 of the Code of Criminal Procedure.

Although Kubosh does not dispute that the State met the statutory requirements of the judgment nisi, he claims that he asserted defenses of failure of consideration and legal excuse, in accordance with rule 94 of the Rules of Civil Procedure, and that, because of these affirmative defenses, the bond is “not a valid undertaking in law” under article 22.13(a)(1) of the Code of Criminal Procedure. Tex.Code CRIM. PROC. Ann. art. 22.13(a)(1) (Vernon Supp.2004-2005). Kubosh further contends that civil law of contract applies because the bail bond is a three-way contractual agreement among the State, the principal defendant, and the bail-bond surety, which requires that the State take reasonably timely steps to secure the issuance of provisional warrants for the arrest of bond-skipping defendants who flee the country.

After a forfeiture has been declared on a bond, the case is placed on the civil docket with the State of Texas as the plaintiff, and the defendant and any sureties as defendants. TexCode CRim. PROC. Ann. art. 22.10 (Vernon Supp.2004-2005). A bond forfeiture action is a criminal proceeding that utilizes the Rules of Civil Procedure. Id. (stating that a bond-forfeiture case is governed by same rules governing other civil suits); State v. Sellers, 790 S.W.2d 316, 321 (Tex.Crim.App.1990). The civil rules apply procedurally, however, and not substantively. See Sellers, 790 S.W.2d at 321. Article 22.10 does not transform a bond forfeiture proceeding from a criminal case into “a civil case.” Sellers, 790 S.W.2d at 321.

“It is well-settled that the State’s case in a bond-forfeiture proceeding consists of the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. Once this has been established, the defendant must then prove that one of the elements has not been complied with.” Tocher v. State, 517 S.W.2d 299, 301 (Tex.Crim.App.1975); Spradlin, 100 S.W.3d at 377; McCluskey v. State, 64 S.W.3d 621, 623 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

By presenting the bond and the judgment nisi to the trial court, the State made a prima facie case for forfeiture of the bond. See Alvarez v. State, 861 S.W.2d 878, 881 (Tex.Crim.App.1992). The burden then shifted to Kubosh, who had the burden to either (1) prove that the State did not satisfy one of the statutory requirements of the judgment nisi, or (2) raise a fact issue on his affirmative defense of exoneration. Id. at 881; Hill v. State, 955 S.W.2d 96, 100-01 (Tex.Crim.App.1997).

We conclude that the defenses listed in rule 94 of the Texas Rules of Civil Procedure do not apply to a bond forfeiture proceeding, and thus hold that the trial court did not err by finding that Kubosh was liable for the bail bond.

We overrule Kubosh’s first issue.

State’s Failure to Comply with Discovery

In his remaining issues, Kubosh challenges the State’s alleged failure to comply with his discovery requests concerning his claimed “affirmative defenses” of failure of consideration and legal excuse.

Kubosh’s complaints concerning discovery all pertain to his contention that the contract was invalid under defenses recognized by the Civil Rules of Procedure, which we have rejected above. A trial court does not err by excluding evidence if the evidence does not show that the accused is entitled to the defense to which it applies. Reed v. State, 794 S.W.2d 806, 809-11 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Thus, any discovery related to equitable affirmative defenses not recognized under article 22.13 is irrelevant. See In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (holding that discovery requests must be reasonably tailored to include only matters relevant to the ease).

We overrule Kubosh’s issues concerning the trial court’s discovery rulings.

Conclusion

We affirm the judgment of the trial court.

      . See TexCode Crim. Proc. Ann. art. 22 (Vernon Supp.2004-2005).

      . Rule 94 states, “AFFIRMATIVE DEFENSES!)] In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense ...”

      . Neither the principal on the bond, Gustavo Casas Sr., nor cosurety, Raul Ruvalcaba, are parties to this appeal, although they were parties to the underlying proceedings.

      . We disagree with Kubosh's contention that the State is a party to the bail-bond contract. The bond is "a written undertaking entered into by the defendant and his sureties ...” Tex.Code Crim. Proc. Ann. art. 17.02 (Vernon 1977); Rodriguez v. State, 673 S.W.2d 635, 640 (Tex.App.-San Antonio 1984, no writ). The sureties agree to assume the bond obligation in return for consideration, usually a fee, paid by the principal. Rodriguez, 673 S.W.2d at 640. The State does not release the principal because of contractual consider- ' ation between the State and the surety, but because of constitutional and statutory rights of the principal. Id.; Tex. Const art. I, § 11; TexCode Crim. Proc. Ann. art. 1.07 (Vernon 1977).