author: SUE WALKER, Justice.

text:
    Lee Wayne LAWRENCE, Appellant, v. The STATE of Texas, State.
    No. 2-04-305-CR.
    Court of Appeals of Texas, Fort Worth.
    June 9, 2005.
    Rehearing Overruled July 7, 2005.

      James Rasmussen, Wichita Falls, for Appellant.
    Barry L. Macha, Crim. Dist. Atty., John W. Brasher and John Gillespie, Asst. Crim. Dist. Attys., Wichita Falls, for State.
    PANELA: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Lee Wayne Lawrence appeals his convictions for possession of a prohibited weapon and two counts of aggravated assault. After a jury found Lawrence guilty on all counts, the trial court assessed his punishment at twenty-five years’ confinement on the possession of a prohibited weapon count and forty years’ confinement, to be served concurrently, on each of the aggravated assault counts. In two points, Lawrence contends that (1) Texas Code of Criminal Procedure 46B.004 applies to him and required the trial court on its own motion to conduct a competency inquiry and (2) the evidence is legally and factually insufficient to establish that the PVC pipe bomb Lawrence possessed was an explosive weapon designed, made, or adapted for the purpose of inflicting bodily injury, death, or substantial property damage. We will affirm.

II. Factual Background

On December 7, 2002, Lawrence dressed in full military fatigues and went to a gentleman’s club where his daughter was working. He brandished a Bowie knife with a nine-inch blade and threatened to blow up the club with a pipe bomb he wore on a chain around his neck. Lawrence eventually surrendered to the police after he poured out the contents of the PVC pipe bomb — rusted nails, screws, shotgun shot, and shotgun powder.

III. Competency To Stand Trial

In his first point, Lawrence argues that article 46B of the code of criminal procedure governs the determination of whether he was competent to stand trial, not former article 46.02, and that the trial court failed to comply with the requisites of article 46B by failing to sua sponte conduct an informal inquiry into his competency. Tex. Code Crim. PROC. Ann. art. 46B (Vernon Supp.2004-05). The State argues that former article 46.02 applies to the determination of whether Lawrence was competent. Effective January 1, 2004, the legislature repealed code of criminal procedure article 46.02 and replaced it with article 46B. See Act of April 80, 2003, 78th Leg., R.S., Ch. 35, §§ 15-17, 2003 Tex. Gen. Laws 57, 72 (current version at Tex.Code Crim. PROC. Ann. art. 46B (Vernon Supp.2004-05)). Section 16 of the Act of April 30, 2003 provides,

The change in law made by this Act applies only to a defendant against whom proceedings have not been initiated under Article 46.02, Code of Criminal Procedure, before the effective date of this Act. The determination of incompetency for a defendant against whom proceedings have been initiated under Article 46.02, Code of Criminal Procedure, before the effective date of this Act is covered by the law in effect when the proceedings were initiated, and the former law is continued in effect for this purpose.

Id. The State contends that proceedings were initiated against Lawrence when the indictment charging him was filed, that is, on August 6, 2003. The “proceedings” referenced by the legislature in section 16 of the Act, however, are specifically identified as competency proceedings — “proceedings ... under Article 46.02” — not criminal proceedings generally. Id. Because no competency proceedings were initiated in this case prior to January 1, 2004, we hold that article 46B of the code of criminal procedure applies to Lawrence. See Richardson v. State, No. 01-04-00281-CR, 2005 WL 267708, at *1-2 (Tex.App.-Houston [1st Dist.] Feb. 3, 2005, no pet.) (mem.op.) (applying Chapter 46B to case in which court inquired into appellant’s competence before accepting his guilty plea at hearing held on January 26, 2004). But see Myers v. State, No. 06-04-00033-CR, 2004 WL 2214081, *1 n.l (Tex.App.-Texarkana Oct.5, 2004, no pet.) (mem.op.) (applying repealed article 46.02 because “the proceedings were originally initiated in this matter by the filing of the indictment” but noting that both parties agreed that article 46.02 applied).

We review a trial court’s decision not to conduct a competency hearing for an abuse of discretion. See Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995).

Article 46B.004 is titled “Raising Issue of Incompetency to Stand Trial” and provides,

(a) Either party may suggest by motion, or the trial court may suggest on its own motion, that the defendant may be incompetent to stand trial. A motion suggesting that the defendant may be incompetent to stand trial may be supported by affidavits setting out the facts on which the suggestion is made.
(b) If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial.
(c) On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.
(d) If the court determines there is evidence to support a finding of incompetency, the court, except as provided by Article 46B.005(d), shall stay all other proceedings in the case.

Tex.Code Crim. Proc. Ann. art. 46B.004. If, under subsection (b), evidence comes to the trial court’s attention suggesting that the defendant may be incompetent to stand trial, then, under subsection (c), the trial court is required to determine by informal inquiry whether there is some evidence that would support a finding that the defendant may be incompetent to stand trial. Id.

A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him. Id. art. 46B.003(a). If, after an informal inquiry, the court determines that evidence exists to support a finding of incompetency, the court shall order an examination to determine whether the defendant is incompetent to stand trial. Id. art. 46B.005(a). Furthermore, generally, if the court determines that evidence exists to support a finding of incompetency, the court shall hold a hearing before determining whether the defendant is incompetent to stand trial, and, on the request of either party or on the court’s motion, a jury shall make the determination as to whether the defendant is incompetent. Id. arts. 46B.005(b), 46B.051.

Lawrence claims that evidence suggesting he might be incompetent to stand trial came to the trial court’s attention during the pretrial, the guilt-innocence, and the punishment portions of trial. He argues that his statements and testimony displayed a pattern of rambling speech, confused thoughts, and incomprehensible answers of a most bizarre quality. We have thoroughly reviewed the record, and it does demonstrate that Lawrence provided rambling and often nonresponsive answers to questions that he was asked. But most of Lawrence’s testimony and his answers to counsels’ questions reveal that he simply wanted his day in court and wanted an opportunity to tell his story his way. His lengthy answers to direct questions from counsel demonstrate his penchant for describing the details of the offenses and the details of his thoughts during and after the offenses for which he was charged and convicted. Lawrence’s testimony shows not that he could not consult with his attorney or that he lacked a rational and factual understanding of the proceedings against him, but simply that he cared deeply about his daughter’s welfare and was willing to implement a dramatic plan in an effort to “save her.” Though his plan for saving his daughter was unusual and unlawful, it does not demonstrate incompetence as that term is defined. See id. art. 46B .003(a); see also Luke v. State, No. 07-02-0397-CR, 2003 WL 21981940, at *4 (Tex.App.-Amarillo Aug.19, 2003, no pet.) (mem.op.). Cf. Clark v. State, 47 S.W.3d 211, 218 (Tex.App.-Beaumont 2001, no pet.) (appellant’s conduct at pretrial hearing was bizarre; he kept repeating that he wanted to go to Skyview psychiatric unit and said that he had no case pending and no attorney). Because nothing in the record raised the issue of Lawrence’s ability to consult with his counsel or his ability to understand the proceedings and the charges against him at anytime during the proceedings, we hold that the evidence presented during the pretrial, the guilt-innocence, and the punishment portions of the trial was insufficient to suggest that Lawrence was incompetent to stand trial. See Tex.Code CRiM. PROC. Akn. arts. 46B.003(a), 46B.004(c).

In Richardson, the Houston First Court of Appeals held that “the requirement concerning a trial judge’s duty to conduct an informal competency inquiry in Chapter 46B is substantively similar to the requirement set forth in former article 46.02.” 2005 WL 267708, at *2 n. 3. Accordingly, the Houston court applied the “raises a bona fide doubt ... about the defendant’s competency” case law to determine whether evidence “suggesting incompetency” came to the trial court’s attention under article 46B.004(b). Id. Lawrence argues that article 46B.004(b)’s “evidence suggesting” incompetency language creates a new, lower evidentiary threshold for trial courts in determining the necessity of an informal inquiry concerning competency. We do not address this issue because even giving article 46B.004(b)’s “evidence suggesting” language a broad interpretation, no evidence of “incompeteney,” as that term is statutorily defined, exists in the record before us.

If Lawrence’s rambling, nonresponsive testimony could be construed as “evidence suggesting” incompetency, the record reveals that the trial court conducted the statutorily mandated “informal inquiry” immediately prior to trial:

THE COURT: This is Cause No. 40,-339-A, The State of Texas vs. Lee Wayne Lawrence. The matter is set for jury trial in just a few minutes. I do need to do an arraignment and also determine any remaining pretrial issues.
Sir, is your name Lee Wayne Lawrence?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Mr. Lawrence, you’re before the Court today; you’re charged in this case by grand jury indictment with the offense of possession of a prohibited weapon and aggravated assault, two counts. Also there are two enhancement paragraphs in the indictment.
In the indictment your name is set out as Lee, L-e-e, Wayne, W-a-y-n-e, Lawrence, L-a-w-r-e-n-c-e. Is that your correct name?
THE DEFENDANT: Yes.
THE COURT: Is it spelled correctly?
THE DEFENDANT: Yes.
THE COURT: Mr. Lawrence, have you ever been hospitalized for any mental disease or defect or treated by a psychiatrist?
THE DEFENDANT: I’ve been treated for depression.
THE COURT: By a psychiatrist?
THE DEFENDANT: Yes.
THE COURT: Have you told your attorney so he can advise you as to whether that has any affect on this morning’s proceedings?
THE DEFENDANT: Yes.
THE COURT: Okay. Now, while this case has been pending against you have you always understood the nature of these charges.
THE DEFENDANT: No, sir. I’ve had three different lawyers on my ease, and I’ve never met this man before.
THE COURT: Okay. We’re going to take that up in a minute. I’m just asking about the charges themselves. Have you understood what you’re charged with? Not necessarily why you’re charged, and I’m not asking you certainly if you agree with it. But do you understand the charges that you’re facing, possession of a prohibited weapon and the two counts of aggravated assault?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And in talking with your attorneys — I’m not asking whether you agree with your attorneys at this time, but in talking with your attorneys have you understood those conversations?
THE DEFENDANT: No, sir, not — I sure haven’t because I’ve been told that there’s going to be witnesses gonna appear for the defense all the way up until yesterday and then yesterday whoever I talked to that said they was the lawyer on the phone told me that no, that I didn’t have none. And I just got through asking my attorney back there. I said, well, what about those ones that the investigator talked to that said that they was gonna testify? How come they’re not here? And he said, well, we can’t find nobody.
THE COURT: But did you understand those conversations? Again, I’m not asking you if you agree with that, but did you understand what they’re telling you?
THE DEFENDANT: Well, not really because the investigator was telling me one thing about all of the testimony that’s gonna go for me. And then whoever I was talking to that said that they was my lawyer on the phone, I would talk to them later and he’d tell me something else that was contrary. And so it went back and forth, and I don’t — I don’t — I really don’t understand what’s happening.
THE COURT: Have you been able to explain to your attorney your side of the case?
THE DEFENDANT: I’ve never really talked to him about it, but I’ve talked to the investigator about it. And he’s the only one that I’ve really talked to about the case.
THE COURT: But have you been able to explain that to the folks in your attorney’s office?
THE DEFENDANT:' Well, whoever I was talking to on the phone that said they was my attorney, every time I tried to explain what happened I was told that it was irrelevant.
THE COURT: Mr. Curry, do you believe that your client is presently competent to stand trial?
[DEFENSE COUNSEL]: Your Hon- or, we had an ex parte evaluation of Mr. Lawrence done in the summer of last year, and the finding in that was that he was competent to stand trial. In my conversations with him, although we disagreed about matters, I think he’s understood what I’ve said. He’s been able to relate to me appropriate questions with regards to his situation. So, I mean, I can’t speak to what’s in his— going on with him right at this moment, but I have not had a question about his competency up to this point.
THE COURT: Okay. What are your opinions as we sit here this morning?
[DEFENSE COUNSEL]: In any conversation with him on the phone yesterday and in conversation with him this morning I still — there’s been nothing said to me that based on my experience would suggest that he’s not competent.

The trial court then took up the State’s motion in limine, followed at length by testimony from Lawrence on his request for new counsel, which the trial court denied. With regard to Lawrence’s request to find witnesses, the trial court allowed time for the defense to draft a motion for continuance, which was granted.

After reviewing the entire record from the pretrial hearing, the guilt-innocence phase, and the punishment phase of trial, we cannot say that the trial court abused its discretion by fading to conduct further inquiry into Lawrence’s competency. See Donnell v. State, 148 S.W.3d 674, 676 (Tex.App.-Beaumont 2004, no pet.). The trial court’s informal inquiry set forth above established that Lawrence was not suffering from recent severe mental illness or moderate retardation, that he understood the charges that he was facing, that he had been able to communicate in a meaningful way with his attorneys, that an ex parte evaluation had found him competent to stand trial, and that his own counsel had no question about his competence to stand trial. Although Lawrence’s appellate counsel urged during oral argument that the trial court should have had additional dialog beyond just whether Lawrence understood the charges against him and could communicate meaningfully with his attorney, we cannot agree. The informal competence inquiry conducted by the trial court satisfied Chapter 46B. Although the trial court certainly could have conducted a more detailed inquiry, the inquiry it did conduct was not so deficient that it constituted an abuse of discretion. See Lewis, 911 S.W.2d at 7.

We overrule Lawrence’s first point.

IV. Legally and Factually Sufficient Evidence of Explosive Weapon’s Capabilities

In his second point, Lawrence argues that the evidence is legally and factually insufficient to establish that the “explosive weapon” he was charged with possessing— the pipe bomb worn around his neck — was designed, made, or adapted for the purpose of inflicting bodily injury, death, or substantial property damage. The State contends that the testimony of their expert witness and of Lawrence himself proved that the device was capable of causing an explosion that would cause serious bodily injury.

A. Legal Sufficiency Standard

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credi bility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

B. Factual Sufficiency Standard

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

C. Analysis

Texas Penal Code section 46.01(2) defines “explosive weapon” as “any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage.” Tex. Penal Code Ann. § 46.01(2) (Vernon 2003).

Here, the record demonstrates that the State’s expert testified as follows:

[PROSECUTOR:] Now, from that sample of what you collected from State’s [Exhibit No.] 14, did you have an opportunity to test that and see if it was capable of causing an explosion?
[DR. JOHN RHOADS:] I did.
Q. And what was your result of that test?
A. The material — the powder that was separated from the shot did explode.
Q. Now, have you also had an opportunity to see this piece of PVC pipe that’s been admitted as State’s Exhibit No. 5?
A. I did.
Q. And based on the tests that you performed on the sample that you took and your knowledge, your training, and your experience in the field of physics, do you have an opinion as to whether this PVC pipe, if it was filed [sic] with the substance that you tested and capped with a primer from a shotgun shell on the top, whether that was capable of causing an explosion?
A. In my opinion it would have, yes.
Q. Doctor Rhoads, we hear a lot about pipe bombs and how people make homemade pipe bombs. What is it about a pipe joint that makes it conducive as a homemade bomb?
A. The device needs to contain the expanding gases to propel material and the device.
Q. All right. Now, if this device, State’s [Exhibit No.] 5, was filled with the screws and the nails, the shotgun shot and the powder that are shown in State’s Exhibit No. 3, and if that had been exploded, in your opinion would that have hurled the nails and screws outside at a pretty high velocity?
A. In my opinion it would, yes.
Q. Would it have placed anybody in the near proximity in danger?
A. I would not want to have been in the room.

Witnesses testified that Lawrence threatened to blow up the building. The disk jockey from the club testified that Lawrence held a lit cigar over the top of the pipe bomb and asked if the disk jockey was “ready to f — ing die.” Officer Beggs testified that “[w]hat this gentleman had in his bomb would have hurt somebody severely with the fragmentation and just the pressure in the pipe itself.” Based on his training, Officer Beggs had no doubt in his mind that the PVC pipe bomb, as it was constructed with the primer on the end and the gunpowder and shotgun shot inside, was an explosive weapon. Lawrence himself testified concerning the explosive attributes of and the potential harm that could result from the pipe bomb:

If I did get a chance to set that thing off all it’s gonna do is that shell deal on the top ... would ... shoot out. I mean, it would pop straight up because when the — when the shell goes off it’s gonna shoot down. And because the deal is loose, it’s just gonna fly up like that (indicating) and whatever’s in the pipe is gonna just try to fly out the top of it because it has nothing to control the perimeter to cause the pipe to explode. I mean, that’s common physics.
Only thing that’s gonna happen with that piece of pipe if I was to be able to set that thing off is that dad-gum thing is gonna fly up there to the ceiling and then whatever is inside that pipe and just gonna fly up in your face and then you’re gonna look pretty bad the rest of your life wherever you’re at, in prison or wherever. You’re not gonna die.... I mean, you’re not gonna want to maim yourself.

The important and relevant evidence supporting Lawrence’s factual sufficiency complaint was provided by Lawrence. Lawrence repeatedly told the jury that he was merely trying to get a point across and that he was not trying to blow up the building. He explained that he had to make the pipe bomb look legitimate and menacing and that he threatened to light it with the cigar to make the people in the club think he was serious. He said that he really did not want anybody to get hurt.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the pipe bomb to be an “explosive weapon” that was designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Furthermore, viewing all the evidence in a neutral light, favoring neither party, we also conclude that the evidence supporting the verdict, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that guilt cannot be proven beyond a reasonable doubt. Dotson v. State, 146 S.W.3d 285, 295 (Tex.App.-Fort Worth 2004, pet. ref'd). Accordingly, we hold that the evidence is both legally and factually sufficient to support Lawrence’s conviction for possession of an explosive weapon. See McWilliams v. State, No. 13-97-00830-CR, 1999 WL 33757429, at *3 (Tex. App.-Corpus Christi Apr.22, 1999, no pet.) (not designated for publication) (holding evidence legally and factually sufficient to establish elements of possession of an explosive weapon beyond a reasonable doubt). We overrule Lawrence’s second point.

V. Conclusion

Having overruled each of Lawrence’s two points, we affirm the trial court’s judgment.

      . During oral argument, Lawrence's counsel argued that the trial court should be required to make a finding of competence on the record and that an adequate informal inquiry into a defendant's competence should include questioning jailers about the defendant’s behavior while in jail, questioning the defendant's family members about the defendant's mental status, conducting an en camera review of any ex parte psychological evaluations of the defendant, and even asking the defendant what offense he is charged with to test his understanding of the proceedings against him. Although we decline to hold that these inquiries by the trial court are required in an informal inquiry, they do constitute useful, nonexclusive sources of information available to the trial court in making such an inquiry.

      . Dr. Rhoads is a professor of physics at Midwestern State University. He received his PhD from Oklahoma State University after completing his dissertation on the radiation defects introduced by electronics on solid material. Lawrence did not object to Dr. Rhoads’s testimony or his qualifications during the trial.


source: Caselaw Access Project

author: FELIPE REYNA, Justice.

license: Public Domain

text:
    William Carroll MARROW, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00104-CR.
    Court of Appeals of Texas, Waco.
    June 15, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Richard G. Ferguson, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted William Carroll Marrow of three counts of aggravated sexual assault and a single count of indecency with a child. The jury assessed his punishment at sixty-five years’ imprisonment on the three aggravated sexual assault counts and fifteen years’ imprisonment on the indecency count. The court ordered that Marrow’s sentences run consecutively.

Marrow contends in two issues that: (1) the cumulation of his sentences violates due process and due course of law because he did not receive notice of the State’s intent to seek a cumulation order; and (2) the court’s decision to cumulate his sentences violated his Sixth Amendment right to jury trial under Apprendi v. New Jersey and its progeny because the cumulation order in effect caused his sentences to exceed the prescribed statutory maximum. We will affirm.

Facts

After the punishment verdict was read in open court, the State asked the court “to consider cumulating at least part of the charges, if not all of them.” Marrow responded with a general objection. The court ordered that the four sentences run consecutively.

Notice of Intent to Seek Cumulative Sentences

Marrow contends in his first issue that the court’s cumulation order violated his rights to due process and due course of law because he received no prior notice of the State’s intent to seek cumulative sentences. The State responds that Marrow’s general objection did not suffice to preserve this issue for our review.

Marrow argues that his right to notice in this regard is a category two right under Marin which cannot be forfeited unless expressly waived. We disagree. An allegation that the defendant’s right to due process has been violated must be preserved by a timely, specific objection. See Hull v. State, 67 S.W.3d 215, 216-17 (Tex.Crim.App.2002); Jaenicke v. State, 109 S.W.3d 793, 795 n. 3 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); see also Tex.R.App. P. 33.1(a)(1). Marrow’s objection was timely but not specific. Thus, Marrow failed to preserve this issue for appellate review. See Tex.R.App. P. 33.1(a)(1); Reyna v. State, 99 S.W.3d 344, 348 (Tex.App.-Fort Worth 2003, pet. ref'd).

Accordingly, we overrule Marrow’s first issue.

Right To Jury Trial

Marrow contends in his second issue that the court’s decision to cumulate his sentences violated his Sixth Amendment right to jury trial under Apprendi and its progeny because the cumulation order in effect caused his sentences to exceed the prescribed statutory maximum.

The State responds that Marrow’s general objection failed to preserve this issue for appellate review. See Turner v. State, No. 05-04-00282-CR, 2004 WL 2802507, at *2, 2004 Tex.App. LEXIS 10673, at **3-4 (Tex.App.-Dallas Nov.30, 2004, pet. ref'd) (not designated for publication). We disagree.

Marrow’s complaint focuses on the denial of his Sixth Amendment right to jury trial. The constitutional right to jury trial is one which cannot be forfeited absent an express waiver. See Sanchez v. State, 120 S.W.3d 359, 366 (Tex.Crim.App.2003); Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App.1993). Thus, the general rules for preservation of error do not apply to this issue. Id.

According to Apprendi and its progeny, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. N.J., 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). The federal appellate courts have uniformly rejected the contention that Apprendi is violated when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense. See e.g. U.S. v. Davis, 329 F.3d 1250, 1253-55 (11th Cir.), cert. denied, 540 U.S. 925, 124 S.Ct. 330, 157 L.Ed.2d 225 (2003); U.S. v. McWaine, 290 F.3d 269, 275-76 (5th Cir.), cert. denied, 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002); U.S. v. Feola, 275 F.3d 216, 218-20 & n. 1 (2nd Cir.2001).

Marrow does not dispute that the sentence for each count lies within the prescribed statutory range. In view of the virtually unanimous federal authorities and the unpublished state authorities on this issue, we likewise conclude that no Ap-prendi violation is shown. Accordingly, we overrule Marrow’s second issue.

We affirm the judgment.

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . 851 S.W.2d 275 (Tex.Crim.App.1993).

      . At oral argument and in post-submission letter briefs, the parties addressed the constitutionality of section 3.03 of the Penal Code, which governs a court’s decision to cumulate sentences. Even with a liberal reading of Marrow's second issue however, this issue is not raised in the appellant's brief. Therefore, we do not address the ''supplemental” contention that section 3.03 is unconstitutional on its face.

      .Texas courts have reached the same conclusion but only in unpublished decisions. See Bray v. State, No. 11-03-003 64-CR, 2005 WL 283549 at *4, 2005 Tex.App. LEXIS 741 at **9-10 (Tex.App.-Eastland Jan.31, 2005, no pet.) (not designated for publication); Peterson v. State, No. 01-02-00603-CR, 2003 WL 22681607 at *5, 2003 Tex.App. LEXIS 9734 at **14-15 (Tex.App.-Houston [1st Dist.] Nov. 13, 2003, pet. ref'd); Jaramillo v. State, No. 04-01-00846-CR, 2003 WL 21395548 at *2, 2003 Tex.App. LEXIS 5067 at **3-6 (Tex.App.-San Antonio June 18, 2003, pet. ref’d).


author: BILL VANCE, Justice.

text:
    DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Jack Edward HIRSCHMAN, Appellee.
    No. 10-04-00290-CV.
    Court of Appeals of Texas, Waco.
    June 15, 2005.

      Rene S. Lial, Texas Department of Public Safety, Austin, for appellant.
    Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

The Texas Department of Public Safety (“Department”) suspended Jack Edward Hirschman’s license based on his refusal to give a blood or breath specimen. This administrative suspension was reversed by the county court at law. The Department appeals the court’s order in three issues: (1) error in requiring the Department to prove that Hirschman was actually driving while intoxicated; (2) error in considering “equally plausible but opposite inferences” when reviewing the evidence; and (3) error in reversing the ALJ’s decision that was supported by substantial evidence. We will sustain all issues, reverse the county court at law’s judgment, and affirm the ALJ’s order authorizing the Department to suspend Hirschman’s license.

FACTUAL AND PROCEDURAL BACKGROUND

The Accident and Arrest

Officer James Arnold was dispatched to a reported hit-and-run accident. The dispatcher told Officer Arnold that the actor vehicle was a truck, and it had come to a stop nearby with the driver still in the truck. At the scene, Officer Arnold found a group of bystanders around a vehicle that had been struck. Officer Arnold asked the bystanders where the other vehicle was, and they pointed to a truck approximately 100 yards away. Officer Arnold observed that a wheel and tire, missing from the truck, were by the struck car. Two of the bystanders reported that there was a male occupant in the driver’s seat of the truck listening to the radio, and there were no other occupants in the truck. Officer Arnold approached the truck and observed damage to the truck. Hirschman was sitting in the driver’s seat of the truck with the keys in his hand. He told Officer Arnold that he was drunk, was on his way to an interview, and he was not supposed to be driving.

Officer Arnold smelled an alcoholic beverage on Hirschman’s breath, and noticed that Hirschman had slurred speech and was lethargic. During field sobriety testing, another officer had to hold onto Hirschman to prevent him from falling down. After the testing, Officer Arnold arrested Hirschman for DWI. After a request from Officer Arnold, Hirschman refused to give a specimen of his breath or blood.

The Administrative Hearing

During the administrative hearing, evidence was offered and entered for the record. Hirschman made several objections, and the ALJ excluded the witness statements that were not contained in Officer Arnold’s report. Hirschman argued that the Department was required to show that he was actually operating the truck. The Department responded that they did not have to prove that Officer Arnold observed Hirschman driving the truck; they had to prove that Officer Arnold had probable cause to believe that Hirschman was driving the truck while intoxicated. The ALJ found that the Department proved all of the elements and authorized the Department’s suspension of Hirschman’s driver’s license. The ALJ’s findings included:

1)On 11-13-03, reasonable suspicion to stop, detain, and question the Defendant existed in that the vehicle he was driving was involved in a collision with another vehicle at Fraternity Row in College Station, Texas.
2) On the same date, probable cause to arrest the Defendant existed in that there was probable cause to believe that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1, Defendant: had a strong odor of an alcoholic beverage on his breath; had very slurred speech and seemed lethargic; almost lost his balance when exiting his vehicle and trying to walk; had glassy, bloodshot eyes; on the horizontal gaze nystagmus test, in both eyes, lacked smooth pursuit, had distinct nystagmus at maximum deviation, and had nystagmus onset prior to 45 degrees; had vertical nystagmus; on the walk-and-turn test, could not balance during instructions, started too soon, did not touch heel to toe, used his arms to balance, and made an improper turn or lost his balance on the turn; and on the one-leg stand, swayed while balancing, put his foot down, and used his arms for balance.
3) Defendant was operating a motor vehicle in a public place in Brazos County, Texas.
4) Defendant was placed under arrest and was properly asked to submit a specimen of breath or blood.
5) After being requested to submit a specimen of breath or blood, Defendant refused.
6) Defendant has had one or more alcohol or drug-related enforcement contacts during the ten years preceding the date of Defendant’s arrest as indicated on defendant’s driving record.

The court concluded that the “Department proved the issues set out in Tex. Teansp. Code Ann. § 524.035 or § 724.042 and that Defendant’s license is subject to a suspension for two years.”

County Court at Law Review

Hirschman appealed the administrative decision to the county court at law arguing that there was legally insufficient evidence to support the ALJ’s Finding of Fact that Defendant was operating a motor vehicle in a public place in Brazos County, Texas. He argued that the evidence in the police report was circumstantial, and that circumstantial evidence from which equally plausible inferences could be drawn was insufficient to support the Department’s case. The Department argued that it was only required to prove that there was probable cause to believe that Hirschman was operating a motor vehicle while intoxicated. The Department further argued that equally plausible but opposite inferences is a standard that no longer binds courts.

The county court at law filed a “Memorandum Opinion and Order,” which reversed the administrative decision and entered judgment in favor of Hirschman. The county court at law held that the evidence offered was not more than a scintilla of evidence to support probable cause to arrest Hirschman for DWI.

The Department now appeals from the trial court’s judgment.

STANDARD OF REVIEW

Administrative Hearing

A person who has his driver’s license suspended may request an administrative healing before an administrative law judge (“ALJ”). Tex. TRANSP. Code Ann. § 724.041(a), (d) (Vernon 1999). The Department’s determination to suspend a driver’s license “is a civil matter.” Id. § 524.012(e)(1) (Vernon 1999).

The issues at the administrative hearing are whether:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated;
or
(B) operating a watercraft powered with an engine having a manufacturer’s rating of 50 horsepower or above while intoxicated;
(8) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of the officer.

Id. § 724.042 (Vernon Supp.2004-05). The ALJ, in determining the merits of the case, must determine whether the Department proved the elements by a preponderance of the evidence. 1 Tex. Admin. Code § 159.19(a) (Issues). If the ALJ finds the Department proved each of the required elements, the license suspension is sustained. Id. § 159.19(c); Tex Transp. Code Ann. § 724.043(a) (Vernon Supp.2004-05).

Appeal — Substantial Evidence Rule

A person may appeal the ALJ’s license suspension to a county court at law. 1 Tex. Admin. Code § 159.37(a) (Appeal of Judge’s Decision). Chapter 524 of the Texas Transportation Code governs the appeal. Tex. Transp. Code Ann. § 724.047 (Vernon 1999). Judicial review of the ALJ’s decision is based on the substantial evidence rule. See id. § 524.041 (Vernon 1999); Tex. Gov’t Code Ann. § 2001.174 (Vernon 2000); Mireles v. Department of Public Safety, 9 S.W.3d 128, 131 (Tex.1999). The court:

(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code Ann. § 2001.174. Thus, the county court at law must examine the ALJ’s order to determine whether the original order was reasonably supported by substantial evidence considering the record as a whole. Tex. Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex.App.-San Antonio 2002, no pet.).

A court applying the substantial evidence standard of review may not substitute its judgment for that of the ALJ as to the weight of the evidence on questions committed to the ALJ’s discretion. Tex. Gov’t Code Ann. § 2001.174; see also Texas Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984). The ALJ is the sole judge of the weight of the evidence. Tex. Dep’t of Pub. Safety v. Raffaelli, 905 S.W.2d 773, 778 (Tex.App.-Texarkana 1995, no writ). The issue for the reviewing court is not whether the ALJ reached the correct conclusion, but rather whether there is some reasonable basis in the record for the decision of the ALJ. See City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994). “At its core, the substantial evidence rule is a reasonableness test or a rational basis test.” Id. “The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be supported by substantial evidence, and the burden is on the contestant to prove otherwise.” Id. Substantial evidence requires only more than a scintilla, and the evidence on the record may actually preponderate against the decision of the agency and nonetheless amount to substantial evidence. R.R. Comm’n of Texas v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex.1995). The substantial evidence standard gives significant deference to the agency in its field of expertise. Id. at 792. If there is evidence to support either affirmative or negative findings on a specific matter, the administrative decision must be upheld. Texas Dep’t of Public Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.App.-San Antonio 1997, no writ). Any evidentiary ambiguities should be resolved in favor of the administrative order with a finding of substantial evidence to support the ALJ’s decision. Pruitt, 75 S.W.3d at 640.

The scope of review is “confined to the [ALJ] record.” Tex. Gov’t Code Ann. § 2001.175(e) (Vernon 2000). Under the substantial evidence standard, we review the ALJ record to determine whether there is substantial evidence to support the ALJ’s decision; we review the determination by the county court at law de novo. Tex. Dep’t of Pub. Safety v. Friedel, 112 S.W.3d 768, 770 (Tex.App.-Beaumont 2003, no pet.). The question of whether the ALJ’s determination meets the substantial evidence standard is one of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex.2000). We review questions of law without affording any deference to the county court at law’s determination. Tex. Dep’t of Pub. Safety v. Cuellar, 58 S.W.Sd 781, 784 (Tex.App.-San Antonio 2001, no pet.).

ISSUE TWO: EQUALLY PLAUSIBLE BUT OPPOSITE INFERENCES

The Department argues that the county court at law was in error when it considered an “equally plausible but opposite inferences” construct to review the ALJ record. The Department argues that this standard of review has been abolished by the Court of Criminal Appeals. Hirschman argues that the proper civil standard for review of circumstantial evidence is the equally plausible but opposite inferences construct set out by the Supreme Court. We agree more with the Department.

We believe that the statute governing license suspension appeals should be the touchstone in deciding which standard of review should apply. See In re Jane Doe 2, 19 S.W.3d 278, 289 (Tex.2000). The statute specifically requires the reviewing court to use the substantial evidence rule. See Tex. Transp. Code Ann. § 524.041; Tex. Gov’t Code Ann. § 2001.174. Because a court applying the substantial evidence standard of review may not substitute its judgment for that of the ALJ as to the weight of the evidence, the equally plausible but opposite inferences construct could not be part of the substantial evidence rule. See Tex. Gov’t Code Ann. § 2001.174; Texas Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984). Although the county court at law cited section 2001.174 as part of its standard of review, we find that it improperly substituted its own judgment by reweighing the evidence using the equally plausible but opposite inferences construct. See Tex. Gov’t Code Ann. § 2001.174; Raffaelli, 905 S.W.2d at 778. Thus, we find the county court at law erred; the court should have used the substantial evidence rule as stated in the statute and interpreted in case law — this is the standard we will use to review the ALJ’s order under issue three. We sustain issue two.

ISSUE ONE: PROOF OF DRIVING WHILE INTOXICATED

The Department argues that the county court at law held it to a higher burden of proving that Hirschman was actually driving ' while intoxicated instead of requiring proof of “probable cause to believe” that he was driving while intoxicated. The Department argues that it proved probable cause through Officer Arnold’s report and probable cause statement.

Hirschman argues that the county court at law did not require the Department to prove that he was actually operating the vehicle while intoxicated. He argues that the county court at law found that the ALJ’s Finding of Fact #3 that “defendant was operating a motor vehicle in a public place in Brazos County, Texas” was not supported by the evidence and thus, the evidence was insufficient to support probable cause.

In a license suspension hearing before an ALJ, the ALJ is to decide “whether probable cause existed to believe ... [the license holder] was operating a motor vehicle in a public place while intoxicated.” Tex. Transp. Code Ann. § 724.042(2). The statute authorizing the suspension hearing neither requires nor empowers the ALJ to decide the ultimate issue of whether appellant was actually operating a motor vehicle while intoxicated. Church v. State, 942 S.W.2d 139, 139-140 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). That issue is one to be litigated during the DWI prosecution: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Pen.Code Ann. § 49.04(a) (Vernon 2003). Thus, a “fact” finding by an ALJ regarding actual operation of a motor vehicle while intoxicated is beyond her authority. See Church, 942 S.W.2d at 140. As such, any finding of fact on that issue by the ALJ is of no import. See id.

The Department did not have to prove Hirschman was in fact driving while intoxicated in order to suspend his license under section 724.042. See Department of Public Safety v. Butler, 110 S.W.3d 673, 677 (Tex.App.-Houston [14th Dist.] 2003, no writ). The county court at law reversed the ALJ’s order because:

the evidence offered to prove a vital fact—Finding of Fact #3 [Defendant was operating a motor vehicle in a public place in Brazos County, Texas]—is so weak as ‘to do no more than create a mere surmise or suspicion’ that Hirsch-man was ‘the driver’ and that, if he were the driver of the black truck, he was driving the ‘actor vehicle’ involved in an accident. In this Court’s opinion, the evidence offered is not more than a scintilla of evidence to support a probable cause to arrest the Appellant for DWI.

We agree with the Department that the issue is whether the Department presented substantial evidence to support the ALJ’s conclusion that Officer Arnold had probable cause to believe that Hirsch-man was operating a vehicle in a public place while he was intoxicated, which the ALJ found in Finding of Fact #2. Because the ALJ’s Finding of Fact # 3 that Hirschman was actually operating a motor vehicle is not a vital fact and the ALJ was beyond her authority to make this finding, the county court at law erred in requiring substantial evidence of actual operation of a motor vehicle. See Church, 942 S.W.2d at 140. We sustain issue one.

ISSUE THREE: SUBSTANTIAL EVIDENCE

The Department argues that the county court at law erred in reversing the ALJ’s decision that was supported by substantial evidence. Hirschman argues that there was less than a scintilla of evidence to support the ALJ’s decision.

The question before us is whether there is substantial evidence to support the ALJ’s Finding of Fact # 2 that Officer Arnold had probable cause to believe Hirschman was driving while intoxicated and that Officer Arnold had probable cause to arrest Hirschman.

With regard to this issue, the ALJ found:

1) On 11-13-03, reasonable suspicion to stop, detain, and question the Defendant existed in that the vehicle he was driving was involved in a collision with another vehicle at Fraternity Row in College Station, Texas.
2) On the same date, probable cause to arrest the Defendant existed in that there was probable cause to believe that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1, Defendant: had a strong odor of an alcoholic beverage on his breath; had very slurred speech and seemed lethargic; almost lost his balance when exiting his vehicle and trying to walk; had glassy, bloodshot eyes; on the horizontal gaze nystagmus test, in both eyes, lacked smooth pursuit, had distinct nystagmus at maximum deviation, and had nystagmus onset prior to 45 degrees; had vertical nystagmus; on the walk-and-turn test, could not balance during instructions, started too soon, did not touch heel to toe, used his arms to balance, and made an improper turn or lost his balance on the turn; and on the one-leg stand, swayed while balancing, put his foot down, and used his arms for balance.

Probable cause is a mixed question of law and fact. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). However, once the underlying facts are established, the existence of probable cause is a question of law for the court. Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex.1998).

In reviewing the administrative record to determine whether there is substantial evidence to support the ALJ’s decision, we note that Officer Arnold’s report and probable cause statement indicate: (1) Officer Arnold was told en route to the reported accident that the reporting person said that the actor vehicle was a truck and it had come to a stop nearby with the driver still inside the truck; (2) upon arriving at the scene seven minutes after the call to police, Officer Arnold found a group of people standing next to a Pontiac Grand Am that looked like it had been struck by another vehicle and was partly on the curb; (3) Officer Arnold found an intact wheel and tire next to the Pontiac; (4) bystanders reported to Officer Arnold that they immediately came outside after hearing the crash and called the police; (5) the bystanders told Officer Arnold that the other vehicle involved in the accident was a truck that was approximately 100 yards away; (6) the bystanders reported that there was a male occupant in the driver’s seat of the truck and he was listening to the radio; (7) the bystanders stated that they did not see any other occupants in the truck; (8) the truck was missing its front right wheel and tire; (9) the three intact wheels and tires on the truck matched the wheel and tire found next to the Pontiac; (10) there was a distinct gouge mark in the pavement that started at the Pontiac’s location and ended at the truck’s location; (11) when Officer Arnold approached the truck, he found Hirschman sitting in the driver’s seat with the keys to the truck in his right hand; (12) Hirschman told Officer Arnold that he was drunk, was on his way to an interview, and should not be driving; (13) Officer Arnold reported that Hirschman had a strong odor of an alcoholic beverage on his breath, had very slurred speech, and seemed lethargic; (14) when Officer Arnold asked Hirschman to step out of the truck, Hirschman almost fell out of the truck; (15) Officer Arnold administered Standardized Field Sobriety Tests including (i) the Horizontal Gaze Nystagmus, which showed six out of six clues of intoxication; (ii) Walk and Turn test, which demonstrated six out of eight clues of intoxication; and (iii) One Leg Stand, which showed three out of four clues of intoxication; (16) during the field sobriety tests, Officer Arnold and another officer had to grab or support Hirschman to prevent him from falling to the ground.

Officer Arnold stated that he had probable cause to believe that Hirschman was operating a vehicle in a public place while intoxicated based on (1) Hirschman being found in the driver’s seat of the truck; (2) Hirschman being in control of the keys to operate the truck; (3) the truck was involved in an accident with the Pontiac; (4) bystanders reported that there were no other occupants found in the truck immediately following the accident; (5) Hirsch-man had a strong odor of alcoholic beverage on his breath; (6) Hirschman had slurred speech and glassy bloodshot eyes; and (7) Hirschman’s performance on the field sobriety tests.

We find that the ALJ record contains substantial evidence to support the ALJ’s conclusion that Officer Arnold had probable cause to believe that Hirschman was operating the vehicle while intoxicated and that Officer Arnold had probable cause to arrest Hirschman. We find it irrelevant that Officer Arnold did not actually observe Hirschman operating the truck. See Stagg v. Tex. Dep’t of Pub. Safety, 81 S.W.3d 441, 444 (Tex.App.-Austin 2002, no pet.) (finding that the Department did not have to prove that Stagg was actually operating the motor vehicle). Accordingly, we hold the county court at law erred in reversing the ALJ’s decision. We sustain issue three.

CONCLUSION

Having sustained all issues, we reverse the county court at law’s judgment and render judgment affirming the ALJ’s order authorizing the Department to suspend Hirschman’s license.

      . Hirschman is referring to the Supreme Court’s statement that "[m]eager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998) (slip and fall case).

      . There are no issues on appeal relating to the request for a specimen and the refusal to provide a specimen.

      . Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997).

      . Arnold’s report also indicates that Hirsch-man was read his statutory warning and was requested to give a sample of breath or blood, which Hirschman refused to give.


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    Connie W. ALGER, Appellant, v. BRINSON FORD, INC., Individually and d/b/a Brinson Ford Lincoln Mercury, Appellee.
    No. 10-04-00341-CV.
    Court of Appeals of Texas, Waco.
    June 22, 2005.
    Rehearing Overruled July 19, 2005.

      Carl D. Tillery, Tillery & Tillery, Dallas, for appellant.
    Christopher J. Pruitt, Brown, Pruitt, Peterson & Wambganss, Fort Worth, for ap-pellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

This is a personal injury suit for damages from a fall by an invitee, Connie W. Alger, on the premises of Brinson Ford, Inc. Brinson Ford filed a traditional and no-evidence motion for summary judgment, and the trial court granted the summary judgment. Alger appeals in three issues: error in granting summary judgment because (1) Brinson Ford had actual or constructive knowledge of the alleged dangerous condition on the premises; (2) of the existence of a condition which posed an unreasonable risk of harm; and (3) Brinson Ford failed to exercise reasonable care to reduce or eliminate the risk of harm.

BACKGROUND

Alger went to Brinson Ford to pick up some friends who were having work done on their car. Alger entered Brinson Ford through a side entrance and attempted to locate her friends. After speaking with a salesman, she exited Brinson Ford through the front entrance and proceeded down a ramp. She was not aware that the handrails on the ramp did not continue to the end of the ramp. Brinson Ford had marked the portion of the ramp without handrails with yellow paint stripping and the parking spaces next to the ramp were also outlined with yellow paint. When Alger reached the end of the handrails, she turned to walk to her car and fell off the ramp.

Alger sued Brinson Ford for premises liability damages. Brinson Ford, in its hybrid summary judgment motion, urged that, as a matter of law, (1) there was no condition that posed an unreasonable risk of harm on the premises; (2) Brinson Ford had no actual or constructive knowledge of the alleged dangerous condition on the premises; and (3) Brinson Ford exercised reasonable care to reduce or eliminate the risk of harm. Brinson Ford also asserted that there was no evidence (1) of a condition that posed an unreasonable risk of harm on the premises; (2) that Brinson Ford had actual or constructive knowledge of the alleged dangerous condition on the premises; and (3) that Brinson Ford did not exercise reasonable care to reduce or eliminate the risk of harm. The trial court granted Brinson Ford’s motion for summary judgment without specifying the ground or grounds for its ruling.

STANDARD OF REVIEW

Summary Judgment

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in her favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant’s cause of action, or alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex.App.-Waco 2003, pet. denied). The non-movant need not respond to the motion for summary judgment unless the movant meets his burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). But if the movant meets his burden of proof, the non-movant must present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

We apply the same standard in reviewing the grant or denial of a no-evidence summary-judgment motion as we would in reviewing a directed verdict. Ash, 54 S.W.3d at 413. We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the mov-ant. Id. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (business disparagement case). Evidence attached to a no-evidence motion should not be considered unless it creates a fact issue. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004).

Premises Liability

The elements of a premises-liability claim are: (1) the owner had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and (4) the owner’s failure to use such care proximately caused the plaintiffs injuries. Dallas Market Center Dev. v. Liedeker, 958 S.W.2d 382, 385 (Tex.1997).

SUMMARY JUDGMENT EVIDENCE

In Alger’s response to Brinson Ford’s motion for summary judgment, she included an affidavit of an expert. The expert stated: (1) the ramp at Brinson Ford was unreasonably dangerous; (2) the ramp is deceiving in appearance; and (3) the ramp meets the requirements of the Texas Accessibility Standards and the Standard Practice for Safe Walking Surfaces. Brinson Ford objected to this affidavit because the legal conclusion that the ramp is unreasonably dangerous is conclu-sory and insufficient as summary judgment evidence.

Alger argues that these objections were overruled when the trial court stated in its order granting the summary judgment that all relief requested and not expressly granted is denied. On appeal, Brinson Ford argues that the expert’s conclusory statement that the ramp is unreasonably dangerous is not competent summary judgment evidence.

Objections as to the substance of an expert affidavit may be raised for the first time on appeal. See Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App.-Waco 1995, no writ). Thus, it is irrelevant whether the trial court ruled on the objection. We will consider Brinson Ford’s argument against this summary judgment evidence as part of our de novo review.

An expert’s testimony will support summary judgment only if it is “clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.” Tex.R. Civ. P. 166a(c). Concluso-ry statements by an expert are insufficient to support or defeat summary judgment. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997).

We find that the expert’s statement that the ramp is unreasonably dangerous is a conclusory statement that is insufficient to defeat summary judgment. See Tex.R. Civ. P. 166a(c); Wadewitz, 951 S.W.2d at 466. Thus, we will not consider this part of the expert’s affidavit as summary judgment evidence.

ISSUE ONE: ACTUAL OR CONSTRUCTIVE KNOWLEDGE

We must first address whether Brinson Ford had actual or constructive knowledge of the condition of its premises that is at issue in this case. See Liedeker, 958 S.W.2d at 385. Here, the condition of which Alger complains is the portion of the ramp on Brinson Ford’s premises that does not contain railings, but is painted with yellow stripes. Mr. Brinson, the owner of Brinson Ford, stated in his affidavit that the ramp has railings from the top of the ramp to the sidewalk area. From the sidewalk area, he stated that the ramp continues to extend into the parking lot and each side of the ramp has a yellow stripe painted on the side and top. He stated that from the parking lot to the sidewalk area, the ramp rises four inches. Mr. Brinson also agreed in his deposition that part of the ramp has rails and part of the ramp does not.

Alger has produced more than a scintilla of summary-judgment evidence concerning Brinson Ford’s actual or constructive knowledge of the particular condition that allegedly caused Alger’s fall. See Brooks, 86 S.W.3d at 797-98. We sustain issue one.

ISSUE TWO: CONDITION POSING AN UNREASONABLE RISK OF HARM

A condition presenting an unreasonable risk of harm is one in which there is such a probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen. Brooks v. First Assembly of God Church, 86 S.W.3d 793, 797 (Tex.App.-Waco 2002, no pet.), overruled on other grounds, 135 S.W.3d 646 (Tex.2004). Reasonableness determinations are fact-intensive inquiries, and thus, whether a particular condition is unreasonable or not is a fact question for the jury. Id. There is no definitive, objective test that may be applied to determine whether a specific condition presents an unreasonable risk of harm. Id.

Alger’s expert stated that the ramp met the applicable standards, but it was deceiving in appearance. He stated that the end of the railings could give a visual cue that the ramp also ends. He also stated that the portion of the ramp where Alger fell was a varying slope along the side of the parking area, and the markings along the portion of the ramp without the railings could lead one to believe that it is the markings of the edge of the parking spaces.

We cannot say that a ramp without railings on the entire ramp, even with the yellow stripes, could not be unreasonably dangerous. The summary judgment evidence does not conclusively show that the complained-of condition did not pose an unreasonable risk. We conclude that reasonable minds could differ as to whether this ramp posed an unreasonable risk of harm; thus, whether this ramp is unreasonably dangerous is a fact question for a jury. See Brooks, 86 S.W.3d at 797. We sustain issue two.

ISSUE THREE: REASONABLE CARE

An owner or occupier of a premises owes a duty to an invitee to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000). The invitee must present evidence that the owner failed to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner knew about or in the exercise of ordinary care should have known about. McClure v. Rich, 95 S.W.3d 620, 627 (Tex.App.-Dallas 2002, no pet.) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992)). “Ordinary care,” when used with respect to an owner or occupier of a premises, means that degree of care which would be used by an owner or occupier of ordinary prudence under the same or similar circumstances. Id. The question of whether an owner’s actions are reasonable in light of the nature of the risk created by the condition and the ease with which it could be remedied is left soundly to the discretion of the jury. See Grieve v. Red Roof Inns, Inc., 2001 WL 1003312, *11, 2001 Tex.App. LEXIS 6098, *32 (Tex.App.-Corpus Christi 2001, pet. denied).

Brinson’s affidavit states that he exercised reasonable care by painting the top and sides of the ramp with yellow stripes. He also testified in his deposition that the yellow stripes were standard operating procedure to give notice of an elevation change. He testified that the yellow stripes marking the elevation change and the yellow stripes marking the parking spaces could not cause confusion. Alger testified in her deposition that she did not realize that she was still on the ramp when she turned, and she thought she was on flat ground. Alger’s expert stated that the yellow markings made the ramp deceiving as to where the ramp ended.

This evidence raised a fact issue on whether an owner or occupier of ordinary prudence under the same or similar circumstances would have had a ramp on its premises that did not have railings on the entire ramp but had painted yellow stripes on the portion without the railings, which yellow stripes were adjacent to yellow stripes marking parking spaces. See CMH Homes, 15 S.W.3d at 101; McClure, 95 S.W.3d at 627. We sustain issue three.

CONCLUSION

Indulging every reasonable inference in favor of Alger, the non-movant, we find more than a scintilla of summary-judgment evidence to raise a genuine issue of material fact on each challenged element. See Ash, 54 S.W.3d at 413. Thus, the trial court erred in granting a no-evidence summary judgment in favor of Brinson Ford. Moreover, indulging every reasonable inference in favor of Alger, the non-movant, we find that genuine issues of material fact exist on each challenged element, and Brinson Ford is not entitled to summary judgment as a matter of law. See Nixon, 690 S.W.2d at 548-49.

Having sustained all of Alger’s issues, we reverse the trial court’s judgment and remand the cause for further proceedings.

Chief Justice GRAY dissents.

TOM GRAY, Chief Justice,

dissenting.

People fall down. They are injured. Who pays?

The critical question in this appeal of a summary judgment is: What is it that the owner or occupier of the premises must know before the owner may be held liable for the injuries to an invitee onto the premises? This was the question that was the focus of a good portion of the oral arguments in this appeal. It was presented in the briefs. You would have expected the analysis of this issue to be the focal point of the opinion. But with a little slight of hand, the majority avoids analysis of the very issue this Court should analyze — what is it the owner/occupier must have knowledge of to impose liability?

Knowledge of the owner/occupier is the crucial issue. But knowledge of what? You will note in the Court’s discussion of issue one, it is presented simply as actual or constructive knowledge of a “condition.” Alger v. Brinson Ford, Inc., 169 S.W.3d 340, 344-45 (Tex.App.-Waco 2005, pet. filed). If you fast forward over to issue three, when discussing reasonable care, the cited cases are referencing whether or not the owner/occupier failed to take reasonable care to eliminate the unreasonably dangerous condition the owner/occupier knew existed or, by the exercise of reasonable care, would discover. Id. at 345-46.

This is the question this case turns upon and the majority appears to be taking great pains to avoid it.

Finding no evidence that Brinson Ford knew, or had any reason to know, of an unreasonably dangerous condition on the premises, I would affirm the judgment.

Maybe it would be helpful to the reader to understand that the “ramp” off of which Alger fell, was no more than 4 inches at any point along the “ramp.” Alger fell off a ramp that was shorter than a normal step, and the edge of the ramp was highlighted with yellow paint.

Conclusion

I find nothing in this record to show that Brinson was aware of an unreasonably dangerous condition. I would affirm the judgment. Because the majority does not, I dissent.