author: ANNE GARDNER, Justice.

text:
    Jose Lopez FLORES and Maria Flores, Appellants, v. ROBINSON ROOFING & CONSTRUCTION COMPANY, INC., Appellees.
    No. 2-03-057-CV.
    Court of Appeals of Texas, Fort Worth.
    March 24, 2005.

      Bourland, Kirkman, Seidler, Evans, Jay and Michel, LLP and Richard L. Bour-land, Fort Worth, for Appellants.
    Law Office of James M. Stanley and Barry G. Johnson, Fort Worth, for Appel-lees.
    Panel A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
   OPINION ON REHEARING

ANNE GARDNER, Justice.

After reviewing Appellee’s motion for rehearing, we deny the motion. We withdraw our January 13, 2005 opinion and judgment and substitute the following.

INTRODUCTION

Appellants Jose Lopez Flores and Maria Flores appeal a summary judgment in favor of Appellee Robinson Roofing and Construction Company, Inc. Because we hold that there are issues of material fact concerning Appellants’ fraudulent transfer claims, we reverse and remand.

BACKGROUND

Jose Flores suffered a brain injury and other injuries while he was working as an employee of M & B Contracting, Inc. M & B was a subcontractor of Robinson Roofing Company, Inc. Flores and his wife, Maria, sued M&B, Robinson Roofing, and others for personal injury damages. During the course of the litigation, M&B filed for bankruptcy, and Robinson Roofing changed its name to R & B Roofing. R & B then filed for bankruptcy, and Appellee Robinson Roofing and Construction Company, Inc. came into existence. In its bankruptcy, R & B listed Appellants as creditors holding a $6,903,000 disputed unsecured claim. However, it did not list its good will or intangible assets. Flores’s personal injury suit was abated due to the automatic stay in the R & B Roofing bankruptcy.

Appellants then sued Appellee in the underlying case, alleging that Robinson Roofing fraudulently transferred intangible assets to Appellee. To support their fraudulent transfer claims, Appellants asserted that the two companies were operated by the same principals. Marshall Robinson was president of Robinson Roofing. Bret Barnett, who was married to Robinson’s daughter Melissa, was president and a shareholder of M & B, general manager of Robinson Roofing, and president and a director of Appellee. Melissa Robinson Barnett was Appellee’s registered agent and its majority shareholder, as well as having been a director and shareholder of M&B.

Appellants also asserted that Robinson Roofing transferred its logo, advertising, graphics, telephone number, and good will to Appellee. Appellants alleged that Robinson Roofing fraudulently transferred those assets after changing its name to R & B Roofing, filing bankruptcy, and dissolving the company in order to escape liability for Jose Flores’s tort claim. Southwestern Bell Yellow Pages advertisements for the years 1984-1985, 1990-1991, 1998-1999, and 2000-2001 demonstrate that Appellee had obtained the logo, insignia, and phone number of Robinson Roofing, and in the 2001-2002 ad, Appellee claimed that it had been “Family Owned and Operated for Over 35 Years” even though it had been in business for only three years.

Appellee filed a combined traditional and no-evidence summary judgment motion. In the traditional part of its motion, Appellee argued that, as a matter of law, R & B transferred no goodwill to Robinson Roofing with the intent to defraud Appellants; there was no fraudulent transfer of any kind from R & B to Robinson Roofing; and the good will of R & B had no value at the time of the transfer. In the no-evidence part of its motion, Appellee argued there was no evidence: (1) that the good will of R & B was transferred to Robinson Roofing with the intent to defraud Appellants; (2) that Robinson Roofing was aware of the fraudulent nature of the transfer; (3) that the alleged good will or other assets had any value; and (4) that Appellants were creditors of R & B prior to the transfer. The trial court granted Appellee’s summary judgment. Appellants contend that the trial court erred in granting summary judgment because there are questions of material fact.

STANDARD OF REVIEW

No-Evidence Summary Judgment

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the basis that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

Traditional Summary Judgment

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates at least one element of the plaintiffs claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.

DISCUSSION

The bases of the traditional and no-evidence parts of Appellee’s summary judgment motion overlap but are not identical. We will consider the no-evidence part of the motion first.

No-Evidence Motion

1. Intent to Defraud.

A fraudulent transfer is a transfer by a debtor with the intent to hinder, delay, or defraud his creditors by placing the debtor’s property beyond the creditor’s reach. Nobles v. Marcus, 533 S.W.2d 923, 925 (Tex.1976); Coleman Cattle Co., Inc. v. Carpentier, 10 S.W.3d 430, 433 (Tex.App.-Beaumont 2000, no pet.). The Texas Uniform Fraudulent Transfer Act is designed to prevent transfers of property with the intent to defraud creditors:

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or within a reasonable time after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation ... with actual intent to hinder, delay, or defraud any creditor of the debtor.

Tex. Bus. & Com.Code Aun. § 24.005(a)(1) (Vernon 2002).

“Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony.” Coleman Cattle Co., 10 S.W.3d at 433 (citing Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.

1986)). The question of whether a debtor conveyed property with the intent to defraud creditors is “ordinarily a question for the jury or the court passing on the fact.” Id. at 433-34 (quoting Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769, 774 (1957)).

TUFTA provides the following nonexclusive list of facts and circumstances, known as badges of fraud, that may be considered in determining fraudulent intent:

(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor’s assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Tex. Bus. & Com.Code Ann. § 24.005(b). “If, however, ‘fraudulent intent is only to be deduced from facts and circumstances which the law considers as mere badges of fraud and not fraud per se, these must be submitted to the trier of fact, which draws the inference as to the fairness or fraudulent character of the transaction.’ ” Coleman Cattle Co., 10 S.W.3d at 434 (citing Quinn, 303 S.W.2d at 774).

In this case, Appellants produced summary judgment evidence that the transfer was to an insider, which is defined in TUFTA as a general partner, director, officer, or person in control of the debtor, and their relatives. See Tex. Bus. & Com. Code Ann. § 24.005(a)(1). Bret Barnett and Melissa Robinson Barnett had both been officers of Robinson Roofing, were respectively the general manager and majority shareholder of Robinson Roofing, and were now operating the new company, Appellee Robinson Roofing and Construction, after Robinson Roofing changed its name to R & B, declared bankruptcy, and was dissolved.

There is also evidence that Appellee received and accepted the transfer of the good will and intangible property, from which a reasonable inference may be drawn that a transfer was made. Appellants produced evidence of the usage by Appellee of Robinson Roofing’s logo, telephone number, address, and similar name, in addition to the newly formed company’s advertisements that it had been “Family Owned and Operated for Over 35 Years.”

Furthermore, Robinson Roofing had been sued before the transfer was made. See id. § 24.005(b)(4). Robinson Roofing filed a Chapter 11 petition in February 1998 after being sued for personal injuries by Appellants. The bankruptcy petition itself lists a debt to Jose Flores of $6,903,000 as a contingent, unliquidated, and disputed claim that was incurred by the company on September 25, 1990. Remarkably, the Flores claim made up the great majority of the company’s secured and unsecured total debts of $6,994,381. Similarly, the transfer occurred “shortly after a substantial debt was incurred.” See id. § 24.005(b)(10).

We conclude that Appellants produced more than a scintilla of probative evidence to raise an issue of material fact on the issue of intent under TUFTA; therefore, this issue was improperly decided on summary judgment under either the no-evidence or traditional standard.

2. Appellee’s Awareness That the Transfer Was Fraudulent.

Appellee argues there is no evidence that it was aware of the fraudulent nature of the alleged transfer. A transferee’s awareness of the fraudulent nature of a transfer is not an essential element of a fraudulent transfer claim. See id. §§ 24.005-.006. Section 24.009(a) provides, however, that a transfer is not voidablé under section 24.005(a)(1) if the transferee “took in good faith and for a reasonably equivalent value.” But even if “good faith” equals “lack of awareness of the fraudulent nature of the transfer,” Appellee’s argument fails for two reasons.

First, good faith is an affirmative defense to a fraudulent transfer claim. See Unif. FRAUDULENT TRANSFER Act § 8 cmt. 1, 7A II U.L.A. 352 (1999) (“The person who invokes this defense carries the burden of establishing good faith and the reasonable equivalence of the consideration exchanged.”). The burden of proof of this affirmative defense rests with Ap-pellee. A party may move for no-evidence summary judgment only on a claim or defense on which the adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166(a)(i). Appellee may not, therefore, assert good faith as a basis for no-evidence summary judgment.

Second, Appellants’ summary judgment evidence raised a fact issue on “good faith.” Where a transferee is an insider and knows the transferor is insolvent at the time of the transfer, it cannot be a good faith transferee. Putman v. Stephenson, 805 S.W.2d 16, 20 (Tex.App.Dallas 1991, no writ). As noted above, Appellants produced evidence that the transfer was to an insider. Appellants also showed that R & B and Robinson Roofing shared common officers; this raises an inference that Robinson Roofing knew R & B was insolvent at the time of the transfer.

3. Value of the Transferred Assets.

Appellee argues there is no evidence that the transferred assets had any value. Appellee points to section 24.009(b) of the Texas Business and Commerce Code for the proposition that proof of value is an essential element of a fraudulent transfer claim. Tex. Bus. & Com.Code Ann. § 24.009(b) (Vernon 2002). We disagree. Section 24.009(b) provides in part:

[T]o the extent a transfer is voidable in any action by a creditor under Section 24..008(a)(1) of this code, the creditor may recover judgment for the value of the asset transferred ... or the amount necessary to satisfy the creditor’s claim, whichever is less.

Id. § 24.009(b) (emphasis added). Thus the value of transferred assets is an issue only when a creditor seeks relief under section 24.008(a)(1). But avoidance of a transfer under section 24.008(a)(1) is not the only remedy available to a creditor:

In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 24.009 of this code, may obtain:
(1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim;
(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the applicable Texas Rules of Civil Procedure and the Civil Practice and Remedies Code relating to ancillary proceedings; or
(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure:
(A) an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;
(B) appointment of a receiver to take charge of the asset transferred or of other property of the transferee; or
(C) any other relief the circumstances may require.

Id. § 24.008(a). Under subsections 2 and 3, a creditor may seek attachment of the transferred asset or any other relief the circumstances may require — without proving the value of the transferred asset under § 24.009(a). We hold, therefore, that proof of value is not an essential element of Appellants’ fraudulent transfer claim and cannot serve as the basis of a no-evidence summary judgment in this case.

4. Appellants’ Status as Creditors.

Appellee argues there is no evidence that Appellants were creditors of the alleged transferor, R & B, before the transfer. “Creditor” means a person, including a spouse, who has a claim. Id. § 24.002(4). “Claim,” in turn, means a right to payment or property, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. Id. § 24.002(3).

Appellants’ summary judgment evidence shows that they sued Robinson Roofing Company before it changed its name to R & B Roofing and filed for bankruptcy. The date of the alleged asset transfer is unclear, but the summary judgment evidence raises at least an inference that the transfer occurred after Appellants sued Robinson Roofing Company. Appellants’ summary judgment evidence, therefore, raises a fact issue as to whether they were creditors of R & B at the time of the alleged transfer.

Because Appellants produced summary judgment evidence that raised a genuine issue of material fact on each essential element of their fraudulent transfer claim, a no-evidence summary judgment is not proper in this case. See Moore, 981 S.W.2d at 269.

Traditional Motion

1. Transfer of Goodwill.

We turn now to the traditional part of Appellee’s summary judgment motion. Appellee argues that, as a matter of law, there was no transfer of goodwill from R & B to Appellee. In support of its motion, Appellee filed the affidavit of its vice-president, Bret Barnett. Barnett stated that R & B transferred no assets, including goodwill, to Appellee. But Appellants claim R & B transferred other intangible assets besides goodwill to Appellee. Appellants’ summary judgment evidence shows R & B and Appellee shared a similar name and address and the identical phone number, logo and phone book graphics. This evidence raises a fact issue as to whether R & B transferred some assets to Appellee. Even if Appellee conclusively disproved the transfer of goodwill, it would not be entitled to summary judgment because Appellants allege the transfer of other intangible assets.

2. Fraudulent Transfer.

Appellee next argues there was not, as a matter of law, any fraudulent transfer of any nature from R & B to Appellee. As noted in the previous paragraph, Appellants’ summary judgment evidence raises a fact issue as to whether assets were transferred from R & B to Appellee. The question, then, is whether Appellee conclusively negated the possibility the transfer was fraudulent.

A transfer made by a debtor is fraudulent as to a creditor if the debtor made the transfer or incurred the obligation with actual intent to hinder, delay, or defraud any creditor of the debtor. Tex. Bus. & Com.Code Ann. § 24.005(a). As detailed in our discussion of Appellee’s no-evidence motion, the summary judgment evidence raises fact issues as to (a) whether Appellants were creditors of R & B at the time of the alleged transfer, and (b) whether R & B made the alleged transfer with actual intent to hinder, delay, or defraud Appellants. These fact issues preclude summary judgment on the question of whether the alleged transfers were fraudulent.

3. Value of Goodwill.

Finally, Appellee argues it is entitled to summary judgment because the summary judgment evidence conclusively proves the goodwill of R & B had no value at the time of the transfer. For summary judgment evidence, Appellee relies on Appellants’ answer to an interrogatory:

State the exact amount that you claim was the value of the good will which you claim was transferred from R & B Roofing Company to Defendant....
Answer: Plaintiff does not know, and . does not intend to prove the value of such good will.

In our analysis of Appellee’s no-evidence motion, we determined that proof of value of a transferred asset is not an essential element of a fraudulent transfer claim. Moreover, Appellants allege the transfer of intangible assets besides goodwill. Thus even if the summary judgment evidence conclusively proved that R & B’s goodwill had no-value, Appellee would not be entitled to summary judgment.

CONCLUSION

We hold that material fact issues preclude summary judgment. We sustain Appellants’ sole issue. We reverse the trial court’s judgment and remand the cause for further proceedings. See Tex.R.App. P. 43.2(d).

      . M&B listed Appellants as creditors holding a $6,859,000 unsecured claim. M&B was discharged from bankruptcy after the bankruptcy trustee determined that it had no assets.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    The STATE of Texas, State, v. David Arthur BRYANT, Appellee.
    No. 2-03-460-CR.
    Court of Appeals of Texas, Fort Worth.
    March 24, 2005.

      Tim Curry, Criminal District Atty., Charles M. Mallín, Tanya Sue Dohoney, Shannon Prellwitz, Raquel Jones, Asst. Criminal District Attys., Fort Worth, for Appellee.
    Randy S. Brooks, Denton, for Appellee.
    Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I.Introduction

The State appeals from the trial court’s grant of appellee’s motion to suppress in a driving while intoxicated (DWI) case. We reverse and remand.

II.Background Facts

Grapevine Police Officer Christopher Brichetto was the only witness at appel-lee’s suppression hearing. He testified that around 2:00 a.m. on December 13, 2002, he was on routine patrol when he noticed appellee’s car slowly traveling westbound on Northwest Highway. Officer Brichetto testified that he saw appellee turn into the parking lot of a strip shopping center. Appellee pulled onto a drive that separates two sets of buildings in the shopping center, drove toward the rear of the buildings, turned around, stopped between the buildings, and turned his headlights off. Officer Brichetto drove to where appellee was parked, got out of his patrol car, and approached appellee’s car. Officer Brichetto knocked on appellee’s window, and appellee opened his car door. Officer Brichetto testified that he smelled a strong odor of alcohol as soon as appellee opened the door. He also testified that appellee had “something all over the front of him” and that his zipper was undone. After conducting an investigation, Officer Brichetto arrested appellee for DWI.

III.Points on Appeal

In' seven points, the State challenges the trial court’s order granting the suppression of the DWI evidence. Each point is based on whether Officer Brichetto was required to have reasonable suspicion to approach appellee and knock on his car window and, if so, whether Officer Brichet-to in fact had reasonable suspicion to detain and investigate appellee.

A. Standard of Review

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. For an arrest to be justified under the Fourth Amendment, it must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). A detention, however, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Car-mouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.App.2000).

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche, 10 S.W.3d at 327; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim. App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demean- or. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 67 (Tex.App.Port Worth, pet. filed). Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. But when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

Here, the trial court did not file written findings of fact and conclusions of law but instead dictated its findings and conclusions into the record. We may treat these findings and conclusions the same as written findings of fact and conclusions of law. See State v. Cardenas, 36 S.W.3d 243, 245 (Tex.App.Houston [1st Dist.] 2001, pet. refd) (accepting as finding of fact trial court’s oral pronouncement that it believed the witness’s testimony).

The trial court found that appellee had committed no traffic violations. Citing several cases, the trial court also noted that slow driving, by itself, does not give rise to reasonable suspicion. The trial court found that appellee was “stopped” when Officer Briehetto approached his car and knocked on his window but that the facts up to that point did not give rise to reasonable suspicion. Because the trial court believed Officer Brichetto’s testimony but found the evidence legally insufficient to establish reasonable suspicion, the trial court’s ruling was an application of law to fact that did not turn on the credibility and demeanor of the witness. See Guzman, 955 S.W.2d at 89; Reesing v. State, 140 S.W.3d 732, 735 (Tex.App.Austin 2004, pet. refd). Therefore, we will review de novo the trial court’s order granting the motion to suppress. See State v. Gray, No. PD-0586-04, 2005 WL 356276, at *3 (Tex.Crim.App. Feb. 16, 2005).

B. Encounter or Investigative Detention

In its first point, the State contends that the trial court erred by granting appellee’s motion to suppress based on its erroneous legal conclusion that Officer Briehetto was required to have a reasonable suspicion to approach appellee in his parked car. The Texas Court of Criminal Appeals has recognized the following three categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002); Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App.1996). Unlike an investigative detention or an arrest, an encounter is a consensual interaction, which the citizen is free to terminate at any time. See Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex.Crim.App.1994). Therefore, an encounter is not considered a “seizure” for Fourth Amendment purposes and does not warrant constitutional analysis. See U.S. Const. amend IV; McCraw v. State, 117 S.W.3d 47, 51 (Tex. App.Fort Worth 2003, pet. refd).

In Merideth v. State, a police officer approached a parked truck in which Merideth and a female companion were sitting. 603 S.W.2d 872, 873 (Tex.Crim.App. [Panel Op.] 1980). Unable to see through the real’ window, the officer went to the driver’s side door and knocked on the window. Id. When Merideth opened the door, the officer smelled marijuana smoke and saw a handrolled cigarette butt in the ashtray. Id. The court of criminal appeals held that the interaction did not become an investigative detention until after the marijuana was discovered. Id.

Similarly, in State v. Perez, a police officer was investigating a reported purse snatching when he spotted Perez and slowed his car to determine if Perez matched the suspect’s description. 85 S.W.3d 817, 818 (Tex.Crim.App.2002) When he saw the police officer looking at him, Perez ran into an apartment. Id. The officer knocked on the apartment door, Perez answered, and the officer smelled marijuana. Id. Again, the court of criminal appeals held that up to this point, the interaction had not been an investigative detention, but a consensual encounter. Id. at 819.

Likewise, in the present case, the interaction between Officer Brichetto and ap-pellee did not become an investigative detention until after appellee opened his car door. Accordingly, Officer Brichetto was not required to have reasonable suspicion that appellee was engaged in criminal activity to approach appellee’s car and knock on his window. We sustain the State’s first point.

C. Reasonable Suspicion of Burglary or DWI

In its second point, the State argues that even if the Fourth Amendment was not yet implicated when the officer knocked on appellee’s window, Officer Brichetto had reasonable suspicion to conclude a burglary or DWI might be underway. In the State’s fourth, point, it argues that the trial court’s suppression order ran afoul of Terry v. Ohio. Reasonable suspicion exists if the officer has “specific artic-ulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.” Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.App.2001).

Here, at around 2:00 a.m., Officer Bri-chetto saw appellee slowly drive down Northwest Highway and turn into the parking lot of a strip shopping, center whose businesses were closed for the night. Appellee drove to the back, turned-around, stopped between two sets of buildings, and turned his headlights off. All of this occurred in an area that had experienced a number of burglaries in the past. Moreover, Officer Brichetto testified that store owners had made several calls to the Grapevine Police Department regarding cars parking behind their stores.

Additionally, after Officer Brichetto knocked on appellee’s car window and ap-pellee opened his door, Officer Brichetto smelled a strong alcohol odor. Officer Bri-chetto also noticed that appellee’s pants were unzipped and that he had something all over him. Giving almost total deference to the trial court’s findings on historical facts .but reviewing de novo the trial court’s application of law to these facts, we conclude that a review of the totality of the circumstances supports a reasonable suspicion that appellee was, or would soon be, engaging in either a burglary or DWI. We sustain the State’s second and fourth points. Having sustained three of the State’s points, we do not need to address the State’s remaining points.

IV. Conclusion

Applying the controlling standard of review, we hold that the trial court erred in granting appellee’s motion to suppress. We reverse the trial court’s order granting appellee’s motion and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Nothing in the record indicates whether ap-pellee took any field sobriety tests.


author: CHARLES KREGER, Justice.

text:
    Eddie Charles SALDANA, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 09-04-036 CR, 09-04-037 CR.
    Court of Appeals of Texas, Beaumont.
    March 30, 2005.
    Kevin S. Laine, Beaumont, for appellant.
    Eddie Charles Saldana, Beaumont, pro se.
    Tom Maness, Criminal Dist. Atty., Wayln G. Thompson, Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., GAULTNEY, and KREGER, JJ.
   OPINION

CHARLES KREGER, Justice.

Eddie Charles Saldana, Jr. pleaded guilty to two counts of aggravated robbery. The trial court sentenced Saldana to confinement for life on each count, and ordered the sentences to run concurrently.

After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim.App.1978), concluding there was no arguable error to support an appeal. Sal-dana filed a pro se brief raising seventeen issues. We have reviewed the record and find we lack jurisdiction over the appeal.

The record reflects Saldana pleaded guilty in exchange for the dismissal of five causes against him, and for the sentences to run concurrently with two other causes. At the time Saldana entered his guilty pleas, the State introduced an “Agreed Punishment Recommendation,” signed by the State, Saldana and Saldana’s counsel, wherein it was mutually agreed that in consideration for Saldana’s guilty pleas to three separate causes, the State would dismiss five other causes against him and further, the State would recommend to the trial court that the sentences in the causes to which Saldana agreed to plead guilty would run concurrently. This constitutes a plea bargain as contemplated by Tex.R.App. P. 25.2(a)(2). See Wayne v. State, 756 S.W.2d 724, 728 (Tex.Crim.App. 1988). Therefore, Saldana had a right to appeal only matters raised by written motion filed and ruled on before trial, or with the trial court’s permission. See Tex. R.App. P. 25.2(a)(2).

The trial court’s certification states this “is not a plea-bargain case, and the defendant has the right to appeal.” Despite the trial court’s certification, the Rule 25.2 requirements recited in a certification must be true and supported by the record. See Ajagbe v. State, 132 S.W.3d 491 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d 825, 826(Tex.App.-Houston [14th Dist.] 2003, pet. ref d).

This was a plea-bargained case; thus the trial court’s certification was incorrect. Because the record does not reflect any rulings adverse, to Saldana on any pretrial written motions, or that he had the trial court’s permission to appeal from a plea bargain, we lack jurisdiction over the appeal.

APPEAL DISMISSED FOR WANT OF JURISDICTION.

      . In a single proceeding, the trial court found Saldana guilty of each offense upon the written confession of the defendant and sentenced Saldana in each cause. On appeal, Saldana submitted separate briefs for each cause; the issues brought forward in each case are the same. For purposes of judicial economy, we dispose of all appeals in a single opinion.


author: DAVID GAULTNEY, Justice.

text:
    In re EDGE CAPITAL GROUP, INC.
    No. 09-04-529 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 7, 2005.
    Decided March 31, 2005.

      Mark C. Harwell, Cotham, Harwell & Evans, Houston, for relator.
    Dan Williams, The Woodlands, pro se.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

In this mandamus proceeding, Edge Capital Group, Inc. asks that we order the trial court to vacate a protective order and permit pre-trial discovery. Edge, a defendant in the trial court, complains that the court stayed all discovery directed to Dan Williams, a third-party defendant sued by Edge.

A declaratory judgment action was filed by Verdisys, Inc. requesting that a document, signed by Dan Williams as CEO of Verdisys, be declared invalid as a contract between Edge and Verdisys. Edge counterclaimed against Verdisys for breach of contract, conspiracy, negligence, violations of the Texas Securities Act, common law fraud, and statutory fraud. After joining Williams and others as third-party defendants, Edge propounded requests for admissions, interrogatories, and requests for production of documents.

Williams then filed a motion asserting federal authorities were investigating his activities at Verdisys, and the same subject matter could be part of discovery responses in this suit. He asked for a postponement of discovery until the resolution of the federal investigation. The trial court granted his request and signed a protective order postponing discovery directed to Williams until further notice of the court. The court did not stay the trial or any other proceedings.

Rule 192.6 of the Texas Rules of Civil Procedure authorizes protective orders in discovery disputes. The Rule provides in part as follows:

(a) Motion. A person from whom discovery is sought ... may move ... for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate but a motion does not waive the objection or assertion of privilege....
(b) Order. To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, the court may make any order in the interest of justice and may — among other things — order that:
(1)the requested discovery not be sought in whole or in part;
(2) the extent or subject matter of discovery be limited;
(3) the discovery not be undertaken at the time or place specified;
(4) the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the court;
(5) the results of discovery be sealed or otherwise protected, subject to the provisions of Rule 76a.

See Tex.R. Civ. P. 192.6. Relying on Rule 192.6, Williams maintains the trial court has discretion to limit or postpone discovery in the interest of justice. He argues that if he asserts his Fifth Amendment right against self-incrimination in response to the discovery requests, he risks severe prejudice and a violation of his “due process right to a judicial determination of the civil case.” In a civil suit, a fact finder may draw an adverse inference- against a party who pleads the Fifth Amendment. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); Texas Capital Sees., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex.App.-Houston [1st Dist.] 2001, pet. denied); see Tex.R. Evid. 513(c). Williams says he risks a “negative inference” being drawn from his assertion of his right to remain silent in this case. On the other hand, if he answers the discovery requests, his answers may be used against him in a possible criminal prosecution.

Edge argues Texas law does not permit Williams’ blanket exemption from discovery simply because of the threat of a potential criminal indictment. Edge says the postponement of all discovery directed at Williams allows Williams to avoid asserting the Fifth Amendment privilege and at the same time avoid providing any discovery answers.

A trial court has discretion to narrow the scope of discovery to protect a party’s legitimate interests. See Axelson v. McIlhany, 798 S.W.2d 550, 553 (Tex.1990). This principle is reflected in the language of Rule 192.6. Rule 192.6 also says “[a] person should not move for protection when an objection to written discovery or an assertion of a privilege is appropriate[.]” Generally, if a party resists discovery based on a privilege the party must assert the privilege in response to specific discovery requests or questions. See Tex.R. Civ. P. 193.3, 193.4,199.5(e), (f). The issue here is whether the trial court abused its discretion on this record in indefinitely postponing discovery directed to Williams without an assertion of the privilege in response to specific inquiries.

A witness in a civil case may refuse to answer an inquiry based on the Fifth Amendment privilege. See Ex parte DeLeon, 972 S.W.2d 23, 25 (Tex.1998). However, the witness is not the exclusive judge of the right to exercise the Fifth Amendment privilege in a civil case. See Ex parte Butler, 522 S.W.2d 196, 198 (Tex.1975). In Butler, the Supreme Court explained as follows:

The judge is entitled to determine whether the refusal to answer appears to be based upon the good faith of the witness and is justifiable under all of the circumstances. The inquiry by the court is necessarily limited, because the witness need only show that an answer to the question is likely to be hazardous to him; the witness cannot be required to disclose the very information which the privilege protects. Before the judge may compel the witness to answer, he must be “ ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency’ to incriminate.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Ex parte Butler, 522 S.W.2d at 198. The privilege is asserted on a question-by-question basis. In re Verbois, 10 S.W.3d 825, 828 (Tex.App.-Waco 2000, orig. proceeding). Upon a party’s assertion of the Fifth Amendment privilege to a discovery request, the trial court reviews the discovery request, applies the law of privilege, discovery, and protection to the request, and determines how best to protect the privilege, the right to proceed with the case, and the right to defend the suit. See generally In re R.R., 26 S.W.3d 569, 574 (Tex.App.-Dallas 2000, orig. proceeding); In re Speer, 965 S.W.2d 41, 45-46 (Tex.App.-Fort Worth 1998, orig. proceeding).

Though Williams maintains he has not asserted the privilege, and should not be required to assert the privilege, his motion for a blanket protective order is the functional equivalent of a blanket assertion of the Fifth Amendment privilege. Blanket assertions of the Fifth Amendment privilege generally are not permitted in civil cases. In re R.R., 26 S.W.3d at 574; In re Verbois, 10 S.W.3d at 828; In re Speer, 965 S.W.2d at 46; Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex.App.-San Antonio 1995, orig. proceeding). In Burton v. West, 749 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1988, orig. proceeding), a civil forfeiture case, the defendant made a blanket objection to discovery requests, stated his Fifth Amendment rights would be violated if he complied with discovery, and filed a motion for a protective order. In ordering the defendant to respond to discovery, the appellate court held that a party may not make a blanket objection to all discovery, but must state an objection to each individual discovery request. Id. at 508.

Williams relies on Texas Department of Public Safety Officers Association v. Denton, 897 S.W.2d 757 (Tex.1995), and Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979). Both cases involved the offensive use of the privilege, where the issue is whether a party seeking affirmative relief should be able to use the privilege to protect potentially outcome-determinative information. In both cases the plaintiffs, who were under investigation for criminal offenses, asserted the Fifth Amendment privilege. See Denton, 897 S.W.2d at 759; Wehling, 608 F.2d at 1086.. Both courts considered the advisability of a dismissal of a plaintiffs claim. Wehling held that a civil defendant does not have a right to have the plaintiffs action dismissed as a sanction any time the plaintiff invokes his constitutional privilege. On the other hand, dismissal may be an appropriate remedy, rather than a sanction, where other less burdensome remedies would be ineffective means of preventing unfairness to the defendant. Wehling, 608 F.2d at 1088. Denton says that when a plaintiff asserts the Fifth Amendment privilege a trial court must first determine whether a lesser remedy than dismissal is warranted. Denton, 897 S.W.2d at 759.

The case before this Court does not involve dismissal of a claim as a remedy for an offensive use of the Fifth Amendment. Wehling and Denton did discuss the possibility of delaying a civil proceeding during the pendency of a criminal investigation as a lesser remedy when the Fifth Amendment is pled by a plaintiff, but the trial court here has not stayed all discovery or the trial of the civil case. Williams also argues Edge should be required to exhaust discovery against the other ten defendants before asking the trial court to lift the stay of discovery directed to him. However, Williams is alleged to have signed the document at issue here and his conduct is at the center of this litigation. Williams’ argument does not address the applicability of the Fifth Amendment privilege to any discovery request.

Williams cites Underwood v. Bridewell, 931 S.W.2d 645 (Tex.App.-Waco 1996, orig. proceeding), another civil forfeiture proceeding, as an example of the appropriateness of a protective order in the discovery context. There the trial judge granted a plea in abatement and ordered all “litigation and discovery” stayed until disposition of the criminal case. Underwood did not involve an assertion of the Fifth Amendment. Rather, the State sought the abatement of the civil case, until the criminal case was considered, in order to prevent the defendant from using “civil discovery as a ‘fishing expedition’ for the criminal case.” Bridewell, 931 S.W.2d at 646. Noting the abatement denied the defendant all discovery, even discovery to which the State had no legitimate objection, the appellate court determined the abatement order was too broad. A protective order, tailored to protect Underwood’s legitimate right to discovery as well as the State’s interest, was thought to be the appropriate relief, rather than an abatement of the entire case. Id. at 647; see Tex.R. Civ. P. 192.6. We do not read Underwood as supporting a blanket assertion of the Fifth Amendment privilege in a civil case, or as suggesting that a protective order should be sought when an assertion of a privilege is appropriate. See Tex.R. Civ. P. 192.6.

If Williams invokes the Fifth Amendment privilege, he cannot be required to answer inquiries likely to be hazardous to him; that is, he cannot be required to disclose information which the privilege protects. The trial court can protect him from “undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights[.J” Id. But if Williams intends to claim the protection of the Fifth Amendment privilege and remain silent, Williams must assert the privilege in response to discovery inquiries.

As the Supreme Court noted in Baxter v. Palmigiano, 425 U.S. at 318, 96 S.Ct. 1551, silence in the face of accusation may be persuasive evidence in proper circumstances. In Baxter, the Court held that the Fifth Amendment does not preclude an adverse inference in a civil case when the privilege is claimed by a party. Id. Consistent with Baxter, the Texas Rules of Evidence do not preclude an adverse inference with respect to a party’s claim, “in the present civil proceeding, of the privilege against self-incrimination.” Tex.R. Evid. 513(c). The Texas Supreme Court has said that when a witness invokes the Fifth Amendment in response to inquiries, “[t]he judge is entitled to determine whether the refusal to answer appears to be based upon the good faith of the witness and is justifiable under all of the circumstances.” See Ex parte Butler, 522 S.W.2d at 198. A motion for protection should not be filed solely to avoid the assertion of the Fifth Amendment privilege in a civil case. See Tex.R. Civ. P. 192.6; see also Tex.R. Evid. 513(c).

Though a trial court is given wide latitude in managing discovery and its docket, the latitude is not unbounded. See In re Van Waters & Rogers, Inc., 62 S.W.3d 197, 200 (Tex.2001). Generally, a party resisting discovery must produce some support for a protective order request. See In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex.1999). Here, the record does not clearly establish the nature of the alleged federal investigation. Williams’ motion simply says there is an investigation by federal authorities, and he says the investigation may lead to a criminal indictment. The motion provides no indication of how he knows of the investigation, what stage it is in, or which agency is conducting the investigation. There is no affidavit, verification, or other support for Williams’ assertions. In its reply brief in this Court, Edge says, without reference to the record, the investigation is by the Securities and Exchange Commission and is civil in nature. The record here contains no showing of the extent to which any criminal issues overlap with civil ones. The record does not reflect when a federal proceeding may begin or when the statute of limitations would run for the crimes Williams fears. See Denton, 897 S.W.2d at 763. A protective order may be appropriate when sought in conjunction with a proper assertion of the Fifth Amendment privilege and when the record supports the applicability of the privilege. However, this limited record does not support an indefinite postponement of all discovery directed to Williams in this case.

When an error of law constituting a clear abuse of discretion vitiates a party’s ability to present a viable claim or defense, relief may be sought through a mandamus proceeding. See generally In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex.2004) (orig.proceeding) (consolidation order); see also Walker v. Packer, 827 S.W.2d 833, 843 (Tex.1992) (orig.proceeding). The order here is not tailored to protect the legitimate interests of all parties. On this record, the indefinite postponement of all discovery directed to Williams — without Williams’ specific assertion of the privilege in response to a discovery inquiry, and without any showing of the nature and scope of the asserted federal investigation — is an abuse of discretion. Although Williams argues any prejudice Edge may suffer from the discovery postponement is speculative, Williams is a key figure in the litigation. The record includes no assertion of the Fifth Amendment privilege in response to any specific discovery request, yet Edge nonetheless has no discovery responses from Williams. The trial court’s order denies discovery that goes to the heart of Verdisys’ declaratory judgment action, Edge’s counterclaim against Verdisys, and Edge’s claims against Williams. Under the. circumstances in this case, the appellate remedy is inadequate. We therefore conditionally grant the petition for writ of mandamus and direct Respondent to vacate the August 23, 2004, and October 18, 2004, orders. We are confident the trial court will follow this opinion. The writ will issue only if the court fails to comply.

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED.


author: STEVE MeKEITHEN, Chief Justice.

text:
    Michael Lee HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-583 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 17, 2005.
    Decided April 6, 2005.

      Tom Brown, Livingston, for appellant.
    John S. Holleman, Criminal Dist. Atty., William Lee Hon, Asst. Criminal Dist. Atty., Livingston, for state.
    Before MeKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE MeKEITHEN, Chief Justice.

Following a bench-trial, appellant was convicted of the offense of “Possession or Transport of Certain Chemicals With Intent to Manufacture Controlled Substance.” See Tex. Health & Safety Code Ann. § 481.124 (Vernon Supp.2003). The trial court assessed punishment at confinement in the Texas Department of Criminal Justice — Correctional Institutions Division for a term of ten years, with an added fine of $1,500. The trial court suspended imposition of the sentence and placed appellant on community supervision for a period of ten years. Appellant presents two issues for our consideration, viz:

1. The trial court erred in refusing to set aside the indictment against Appellant in that the indictment failed to allege an offense.
2. The evidence is legally insufficient to sustain Appellant’s conviction in that there is no evidence that Appellant possessed ephedrine or pseu-doephedrine in a form subject to regulation under the Health and Safety Code with the intent to manufacture methamphetamines.

At the outset, we acknowledge appellant’s waiver of his first issue during oral argument, conceding that the indictment did indeed allege an offense. However, as is evident by the framing of his second issue, an examination of the statute and how he was alleged to have violated it are in order prior to addressing the legal sufficiency of the trial evidence.

The statutory provision appellant was convicted of violating reads, in pertinent part, as follows:

(a) A person commits an offense if, with intent to unlawfully manufacture a controlled substance, the person possesses or transports:
(3) a chemical substance subject to regulation under Section 481.077.

See sec. 481.124(a)(3). The indictment alleges that on or about February 19, 2003, appellant “did then and there with intent to unlawfully manufacture a controlled substance, namely: Methamphetamine possess or transport a chemical substance, to-wit: a product containing ephedrine or pseudoephedrine, ...”

Generally, an indictment is deemed sufficient when it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. See Tex. Const, art. V, § 12; Tex.Code Crim. Proc. Ann. art. 21.11 (Vernon 1989); Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997). Furthermore, an indictment meeting the constitutional and statutory mandates is not rendered void even if it omits an essential element of a criminal offense or includes information that may indicate innocence. Duron, 956 S.W.2d at 550-51; Studer v. State, 799 S.W.2d 263, 272 (Tex.Crim.App.1990). “An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.” Tex.Code Crim. Proc. Ann. art. 21.13 (Vernon 1989). In the instant case, rather than merely tracking the general language of section 481.124, the State provided greater particularity in specifying the “chemical substance” (“ephedrine or pseudoephedrine”) appellant was possessing or transporting, and specified the particular controlled substance (“Methamphetamine”) appellant was intending to manufacture at the time he was possessing or transporting the “ephedrine or pseu-doephedrine.”

As we appreciate the crux of appellant’s position at trial and on appeal, he contends that the two chemical substances alleged, “ephedrine or pseudoephedrine,” are not “subject to regulation under Section 481.077,” “in the form actually possessed by Appellant.” As foundation for this contention, appellant refers us to the language contained in section 481.077 of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 481.077 (Vernon Supp. 2003). Entitled “Chemical Precursor Records and Reports,” the pertinent portions of section 481.077 read as follows:

(a) Except as provided by Subsection (l), a person who sells, transfers, or otherwise furnishes a chemical precursor to another person shall make an accurate and legible record of the transaction and maintain the record for at least two years after the date of the transaction.
(l) This section does not apply to the sale or transfer of a nonnarcotic product that includes a chemical precursor subject to Subsection (a) if the sale or transfer complies with federal law and involves a product that may be sold lawfully with a prescription or over the counter without a prescription under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) or a rule adopted under that Act.

It is undisputed that at the time of the offense, the Health and Safety Code defined “Chemical precursor” to include both ephedrine and pseudoephedrine.. See Tex. Health & Safety Code Ann. § 481.002(51)(N) & (0) (Vernon Supp. 2005). It is also undisputed that the “ephedrine or pseudoephedrine” appellant was charged with possessing or transporting appears to have been obtained during a routine retail purchase of over-the-counter sinus/allergy medication.

Under our statutory construction standards, we are to use the plain language of the statute unless the language is ambiguous or would produce absurd results. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). Read in its entirety, section 481.124 has as its sole purpose the criminalizing of specified conduct. Except for having been enacted as part of the Texas Health and Safety Code, the language of section 481.124 meets the general objectives of provisions contained in the Texas Penal Code, viz: “to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate.” See Tex. Pen.Code Ann. § 1.02 (Vernon 2003).

On the other hand, a plain reading of section 481.077 in its entirety indicates that it is an administrative “tool” in that it requires certain sellers or transferors of chemical precursors to make and retain accurate and legible records of certain types of sales or transactions to certain types of buyers or recipients. Section 481.077 does not either exclude or exempt any of the chemical precursors listed under section 481.002(51). It does, however, excuse from its otherwise rigorous record-keeping requirements “retail-sale”-type transfers of nonnarcotic or prescription products, approved and released for marketing to the general public under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.), containing chemical precursors. See ' section 481.077(Z). Therefore, all chemical precursors, including ephedrine and pseudoephedrine, continue to be “a chemical substance subject to regulation under Section 481.077,” regardless of their weights or concentrations. What section 481.077 does not “regulate,” ie., “does not require to be performed” is the extensive record-keeping/licensing/reporting of retail, consumer-type sales of nonnarcotic or prescription products released for sale to the public under the guidelines of the Federal Food, Drug, and Cosmetic Act.

The essence of appellant’s contention is that because the pseudoephedrine he possessed when stopped and arrested was contained in “over-the-counter cold tablets” in a form “not subject to regulation under 'Section 481.077,” there was no evidence that appellant possessed or transported any item prohibited by section 481.124(a)(3). Appellant fails to consider the plain language of section 481.077 as primarily a record-keeping “tool” of state government. Indeed, by its very title, the scope of section 481.077’s regulatory function centers on “Chemical Precursor Records and Reports.” All chemical precursors are generally subject to its regulatory reach. Designated records and reports of chemical precursor sales or transactions must be created and maintained, with the only exception being those sales or transactions of chemical precursors described under subsection (l). The mere fact that appellant’s possession of the chemical precursor pseudoephedrine was in a “form” that did not require any of the clerks at any of the retail stores to create and maintain a record for purposes of section 481.077 does not mean that the same pseu-doephedrine was not “a chemical substance subject to regulation under Section 481.077.” As the State argued to the trial court at the conclusion of the pretrial hearing on the motion to set aside the indictment:

[>Seetion 481.077] does not say, as [Trial Counsel] is suggesting, that ephedrine and pseudoephedrine is not a substance subject to regulation under this statute. In fact, if you — if it is a transaction that is outside the scope of this exception [481.077(1) ] here, it is absolutely subject to the reporting and record keeping requirements of the statute. But if you look back over here under 481.124, it’s not the transaction that is the offense at issue. It is the possession of the substance that is with the intent to manufacture methamphet-amines [sic] that is the criminal offense.
I’m not prosecuting Wal-Mart for selling this ephedrine or pseudoephed-rine. I’m not prosecuting this Defendant for participating in that transaction. I’m not even prosecuting him for possession of ephedrine or pseudoephed-rine. I mean, any of us that buy cold medication would be guilty of that offense if that’s all you had to do is possess this. I am prosecuting him for possession of those substances with the intent to manufacture methamphet-amines [sic].

Having decided that appellant’s indictment does sufficiently charge him with a criminal offense, we move to the issue of legal sufficiency of the trial evidence. In reviewing the trial evidence for legal sufficiency, we view said evidence in the light most favorable to the verdict so as to determine whether any rational trier of fact could have found each of the essential elements proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001). When conducting a sufficiency review, “we consider all the evidence admitted, whether proper or improper.” Conner, 67 S.W.3d at 197; Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994). Every fact need not point directly and independently to the defendant’s guilt. See Conner, 67 S.W.3d at 197. A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Id. In a bench trial, the trial court, as finder of fact, may resolve any conflicts in the evidence, evaluate the credibility of the witnesses, and determine the weight to be given any particular evidence. See Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995); Winkley v. State, 123 S.W.3d 707, 711 (Tex.App.-Austin 2003, no pet.).

Mental states are almost always inferred from acts and words. See Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App.1998). “ ‘Mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs.’ ” Id. (quoting Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991)). A defendant’s mental state is “‘concealed within his own mind and can only be determined from his words, acts, and conduct.’ ” Id. (quoting Norwood v. State, 135 Tex.Crim. 406, 120 S.W.2d 806, 809 (1938)). Culpable mental state is most commonly grounded upon inferences to be drawn by the factfinder from the attendant circumstances. See Lane v. State, 763 S.W.2d 785, 787 (Tex.Crim.App.1989). Thus, the factfinder may infer intent or knowledge from any facts in evidence that tend to prove the existence of such a culpable mental state. See Hernandez, 819 S.W.2d at 810. For example, while flight alone is not dispositive of guilt, evidence of flight by a defendant is a circumstance from which an inference of guilt may be drawn by the factfinder. See Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989); Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App.1979) (op. on reh’g).

In the instant case, the testimony indicated that on February 19, 2003, Detective Matt Parrish of the Livingston Police Department received information from an employee of the local Wal-Mart that two subjects had purchased “Sudafed” and matches. After leaving Wal-Mart, the two subjects, later identified as appellant and his cousin, Scott Watson, were further observed by the employee driving away in a grey, older-model vehicle. Parrish was also provided with the license plate number of the vehicle. Parrish concluded the phone call and, while processing the information, then received another call from the Wal-Mart employee informing him that appellant and Watson had returned and were purchasing additional matches, Coleman fuel, and other similar items. Parrish testified that he had been provided similar information in the past from Wal-Mart employees involving other individuals making purchases of “quantities” of “Sudafed” or “ephedrine type” medications.

Believing appellant and Watson would purchase additional items similar to those purchased at Wal-Mart, Parrish proceeded to patrol local store parking lots in an unmarked police unit. Parrish located the grey vehicle in the parking lot of “Bill’s Dollar Store,” in Livingston. At that point, Parrish was in communication with Officer Leon Middleton, also of the Livingston Police Department. Officer Middleton was in an unmarked, personal vehicle. Parrish and Middleton parked and observed appellant and Watson leave the dollar store, drive a short distance, and enter “O’Reilly’s” store. Although the grey vehicle was not registered to appellant, he was the one driving the vehicle. Appellant and Watson eventually left “O’Reilly’s” and proceeded to drive away, with Parrish and Middleton following. At this point, because the grey vehicle appellant was driving had no front license plate, Parrish summoned assistance from a marked police unit.

Parrish next observed the grey vehicle enter the “H-E-B” parking lot and then proceed to exit the parking lot at a high rate of speed onto the access-road of Highway 59, take the turnaround, and proceed to travel southbound onto Highway 59. Parrish pursued in his unmarked unit, but appellant’s vehicle sped almost “out of sight.” Parrish saw appellant’s vehicle eventually take an exit onto FM 1988. Parrish continued the pursuit onto FM 1988 and estimated appellant’s speed at that point to be between “80 or 90” miles per hour. Parrish eventually caught up to appellant’s vehicle and activated his emergency lights and siren. By that time a marked Livingston Police unit had arrived at the scene. Appellant finally stopped his vehicle, at which point the officers were able to identify both men.

After identifying himself and explaining the reason for the traffic stop, Parrish asked for, and was given, consent by appellant to search the vehicle. Inside the grey vehicle, Parrish observed “personal walkie-talkies,” and a vehicle-to-vehicle scanner that was later found to belong to the Camilla Fire Department. The scanner was in working condition and appeared to be tuned into the same frequency that was being used by Parrish and other law enforcement officers to communicate among the various police units. The following items introduced by the State were found in the vehicle appellant was operating at the time of his arrest:

State’s Exhibit No. 1 — A funnel,
State’s Exhibit No. 2 — Coleman fuel,
State’s Exhibit No. 3 — A one-gallon container which was filled with water at the time of appellant’s arrest,
State’s Exhibit No. 4 — “Cobra” hand-held, personal walkie-talkie,
State’s Exhibit No. 5 — A container of “Heet,” which was described as a gas-line antifreeze and water remover,
State’s Exhibit No. 6 — Electrical tape,
State’s Exhibit No. 7 — A container of Heet,
State’s Exhibit No. 8 — Electrical tape,
State’s Exhibit No. 9 — Batteries,
State’s Exhibit No. 10 — Nasal decongestants for cold or allergies containing pseudoephedrine,
State’s Exhibit No. 11 — Box cutter/razor blade scraper,
State’s Exhibit No. 12 — Box of “Actifed, 24 tablets,” containing pseudoephedrine,
State’s Exhibits Nos. 13, 14, 15, 16, 17— Blister packs of “Actifed,” containing pseudoephedrine,
State’s Exhibit No. 18 — Individual sandwich baggies,
State’s Exhibit No. 19 — 1,000 matches,
State’s Exhibit No. 20 — Sack of matches.

Detective Parrish further testified that State’s Exhibits 1 through 20 were all items he had seen in prior investigations of methamphetamine-related offenses, and were commonly seen “in methamphetamine labs or the manufacturing of meth-amphetamines.”

The State also elicited testimony from Agent Kent Graham of the Deep East Texas Regional Narcotics Task Force. Agent Graham stated that for the preceding four years his primary focus in law enforcement had been on methamphetamine-related offenses. Graham described in detail for the trial court the two primary types of methamphetamines manufactured illegally by individuals. Graham confirmed the fact that all of the items included in State’s Exhibits 1 through 20 are items he would commonly expect to find in a working methamphetamine laboratory. When asked if he was able to quantify the amount of pseudoephedrine contained in State’s Exhibits 10, 12, 13, 14, 15, 16, and 17, Graham replied that by using the amounts listed on each package, he calculated a total of 5,760 milligrams of pseu-doephedrine. He further testified that such an amount of pseudoephedrine would yield approximately 3.5 grams of methamphetamine after completion of the “cooking process.” At the time of trial, the street value of methamphetamine, according to Graham, was $100 per gram. Graham agreed with the observation that, taken individually, each of State’s Exhibits 1 through 20 can be purchased legally in a grocery store, an automobile parts store, or a large discount retail establishment. However, Graham confirmed that whenever he had seen the items comprising State’s Exhibits 1 through 20 “in a combination,” an individual was either actually manufacturing methamphetamines or preparing to manufacture it. Graham concluded his testimony with the observation that the only items appellant would have needed to “start cooking,” in addition to State’s Exhibits 1 through 20, were iodine crystals and a reaction vessel.

In his defense, appellant called his common-law wife, Hope McWhorter, as a witness. She testified that appellant was in possession of the pseudoephedrine tablets because he suffers from allergies. She stated that because the tablets are expensive, whenever they get extra money appellant purchases a few more boxes so that he will not run out as he takes “two a day.” Ms. McWhorter further testified that in the four years she had known appellant she had never known him to make methamphetamine. She was aware that appellant smoked marijuana, but had never known him to use methamphetamines. On cross-examination, Ms. McWhorter stated she was aware of appellant’s 1997 conviction in Montgomery County for possession of methamphetamines. She attributed this conviction to the occasion when appellant, driving his truck, picked up a friend, and the friend placed a bucket containing some “bombs” and “some drugs” in the back of appellant’s truck. After clarifying for the trial court that the “bombs” were indeed explosive devices, Ms. McWhorter indicated that “the officers” told appellant that he could admit to one offense [possession of controlled substance] and only be charged with one offense, or he could deny involvement and be charged with two offenses because the contraband items were found in his truck. Ms. McWhorter also indicated that since appellant’s arrest for the instant charge, Scott Watson admitted that some of the matches, the funnel, the scraper, and the “Heet” belonged to him.

As we noted above, as the finder of facts, the trial court was free to evaluate the credibility of the witnesses, determine the weight to be given any item of evidence, and resolve any conflicts in the evidence. See Joseph, 897 S.W.2d at 376. Considering the record-evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found that, on the day in question, appellant possessed pseudoephedrine with the intent to manufacture methamphetamines, in violation of section 481.124(a)(8). As noted above, appellant has waived his first issue; issue two is overruled. The trial court’s judgment is affirmed.

AFFIRMED.

      . Section 481.124 was amended by the legislature in 2003. See Act of May 22, 2001, 77th Leg., R.S., ch. 1188, § 7, 2001 Tex. Gen. Laws 2691, amended by Act of May 28, 2003, 78th Leg., R.S., ch. 570, § 2, 2003 Tex. Gen. Laws 1931. The amendment to section 481.124 took effect on September 1, 2003. In the instant case, the indictment alleges appellant committed the offense on or about February 19, 2003. Therefore, in an attempt to lessen confusion, all references to section 481.124 will be to the version in effect at the time of the offense. Also, all section numbers mentioned will apply to the Texas Health and Safety Code Annotated in effect at the time the offense was committed, unless otherwise indicated.

      . Appellant specifically frames his insufficient evidence complaint as a lack of evidence to prove he possessed the right "form” of pseu-doephedrine so as to support his conviction under section 481.124(a)(3). His only other claim is the lack of legally sufficient evidence to show his possession of pseudoephedrine was with intent to manufacture methamphetamine. Appellant does not complain of the State's failure to chemically analyze the tablets contained in State's Exhibits Nos. 10, 12, 13, 14, 15, 16, and 17 so as to confirm the presence of either ephedrine or pseudoephed-rine. As appellant basically admits to being in possession of pseudoephedrine, although he claims it was in the "wrong” form, it is not necessary for us to discuss the "affirmative links’ rule,” which is normally triggered when an accused is not in exclusive possession of the place where contraband is found. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005).

      . Like section 481.124, section 481.077 was also amended by the legislature in 2003. See Act of May 9, 2001, 77th Leg., R.S., ch. 251, § 12, 2001 Tex. Gen. Laws 466, 471, amended by Act of May 28, 2003, 78th Leg., R.S., ch. 570, § 1, 2003 Tex. Gen. Laws 1931; Acts of May 29, 2003, 78th Leg., R.S., ch. 1099, § 6, 2003 Tex. Gen. Laws 3148, 3152. As the current version of section 481.077 was not in effect on the date of the instant offense, we again confine all references in the opinion to the version in effect on February 19, 2003.

      . While section 481.002 was amended by the 2003 legislature, subsection (51) was not affected. Therefore, both ephedrine and pseu-doephedrine continue to be defined as chemical precursors in the Health and Safety Code.

      . Testimony indicated that this scanner was the property of the Camilla Fire Department, located in San Jacinto, County, Texas, and that appellant’s stepfather was a volunteer firefighter for that department.


author: STEVE McKEITHEN, Chief Justice.

text:
    In re COMMITMENT OF Donald LARKIN.
    No. 09-04-375 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 17, 2005.
    Decided April 7, 2005.

      Daniel E. Maeso, Section Chief-State Counsel for Offenders, Nelda F. Williams, State Counsel for Offenders, Huntsville, for appellant.
    Autumn Lewis, Special Prosecution Unit-Civil Division, Huntsville, for appel-lee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

The State of Texas filed a petition to commit Donald Larkin as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 & Supp.2005). The jury found Larkin suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence and that Larkin has serious difficulty in controlling his sexually violent behavior. Larkin presents four issues in his appeal from the judgment and order of civil commitment. We find no error and affirm the judgment.

In his first issue, Larkin urges that the trial court abused its discretion in denying appellant the right to ask venireper-sons proper questions designed to determine bias. The State contends that the trial court properly sustained its objections to improper commitment questions. The bulk of the appellant’s discussion of this issue centers on one question. The trial court sustained the State’s objection to the following:

[By Respondent’s Counsel]: If the — if the question regarding the prior sexually violent offenses is proved, would you then have such a bias against Mr. Lar-kin because he is — has been proved to you to be a sexually — a person who has committed sexually violent crimes? Do you think that at that point that you would consider, for your own purposes, whether he’s going to do it again in the future has already been decided?

At the bench, the trial court explained the ruling, as follows:

THE COURT: The whole purpose of this trial is for the jury to ultimately decide whether he’s likely to reoffend again. If a portion of that evidence is that he’s had two priors, then that is part of the evidence that they’re going to use to decide whether he’s likely to reoffend.
So, asking them if that’s going to affect them is like asking them — you’re trying to ask them to ignore the evidence in this case and not be affected by the evidence, which is not proper. They’re supposed to be affected. That’s the whole purpose of this trial.

We apply an abuse of discretion standard to voir dire examination, keeping in mind that the trial court should allow a litigant broad latitude to discover bias or prejudice by potential jurors. Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 709 (Tex.1989). Larkin argues that the question was designed to uncover jurors who would be so biased that they would not consider all of the evidence before deciding the appellant would likely reoffend. He analogizes his case to Vasquez v. Hyundai Motor Co., 119 S.W.3d 848 (Tex.App.-San Antonio 2003, pet. granted), an airbag products liability case in which the Court of Appeals held that the trial court erred in precluding the plaintiffs from asking the venire questions about bias against non-users of seat belts. Id. at 851. The issue in Vasquez was whether the trial court could preclude inquiry into whether the prospective jurors would be so influenced by the evidence of non-use of a seat belt to secure a child that they would not consider any of the other evidence in the case. Id. at 850-58. In marked contrast to the situation in Vasquez, counsel in this case asked if particular evidence would have a persuasive effect but not whether it would have a prejudicial effect. As the trial court explained, the State may rely upon the respondent’s prior conduct to prove the likelihood of future conduct. Only if the juror will not act with impartiality could the juror be challenged for cause for improper bias. Tex. Gov’t Code Ann. § 62.105(4) (Vernon 1998); Compton v. Henrie, 864 S.W.2d 179, 182 (Tex.1963) (“[T]o disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality.”). On appeal, Larkin argues he sought to determine “whether the fact that Appellant had two prior convictions would prevent them from considering all the evidence.” That may well have been a proper question under the precedent set by Vasquez, but it is not the question asked during jury selection in this case. The trial court did not abuse its discretion by ruling that the question asked by counsel improperly sought to commit the members of the veni-re on the weight of particular evidence.

Larkin also asserts error based upon related objections also sustained by the trial court. Immediately before asking the question discussed above, counsel asked the members of the venire the following question:

Now, one of these questions is regarding, he has to have committed at least two prior sexually violent offenses. And because this is a civil case, if I tell you I believe the facts in this case will show that he has, in fact, four convictions involving children, can you — who here can say, “I can take that proof of the four convictions, and then I can still, with an open mind, listen to expert testimony regarding whether he will or will not reoffend”? Who thinks that’s just absurd?

The trial court instructed counsel, “Rephrase your question in the form of the statute.” From the trial court’s instruction, it is evident that the question was excluded because it asked the jurors to commit to a result on the particular facts of the case, that is, four prior convictions for sexual assault on a child, and that the trial court sustained the objection based on the form of the question. This ruling is within the trial court’s discretion.

Immediately after the trial court sustained the first two objections, counsel directed an inquiry to a particular member of the venire, as follows:

[By Respondent’s Counsel]: Okay. No. 5, why don’t you just explain to me how, if there were convictions — I believe you said if there were convictions you would be biased. Would you explain?
[By Venire Member]: Well, if he had more than two convictions, probable guess would be he’s going to do it again, repeat offenders.
[Counsel]: If — so, if there were two convictions, would you then be biased against him in — would you say if it were a race, at that point, we’re lagging a little bit behind?
[Venire Member]: If he’s had them, I’m going to — I would say in my mind right now — just telling you the truth— very good chance, probably 98 percent in my mind, that he’s going to do it again.
[Counsel]: Okay. And that’s based on your — your experience then as a— you know, there’s just a fiction — I mean, we do — we do exist in the courtroom in a fiction. This is, you know, you’re going to likely think something like that. You don’t withhold your judgment in your real life, not as much as we do here. You don’t have to wait until everything is in, and you don’t have this sort of fiction that is in the American courtroom.
Now, you are not to leave behind your common sense, because I’ll be counting on your common sense when we get to the issue of whether Mr. Larkin is, in fact, a sexually violent predator.
But, No. 5, you’re saying, if these — if these are proved up to you, then at that point, it’s all over for you; is that right?

At that point, the court sustained the State’s objection. Counsel restated the question, as follows:

[By Respondent’s Counsel]: Okay. And you would have a bias in that direction; is that—
[By Venire Member]: Uh-huh.
[Counsel]: You would prejudge him in that direction; is that fair?
[Venire Member]: That’s correct.

Counsel was able to explore the potential juror’s “bias.” The trial court’s ruling did nothing more than preclude counsel from securing a commitment on the weight of the evidence. This ruling, too, is within the trial court’s discretion.

Immediately following the above-referenced exchange with Juror No. 5, counsel engaged in the following exchange with Juror No. 2:

[By Respondent’s Counsel]: [Juror No. 2], do you think that you would have a bias against the respondent if these sexual convictions were shown?
[By Venire Member]: I believe so.
[Counsel]: And you don’t think that you could hear evidence then?
[Venire Member]: Yeah, I could hear the evidence, but I think it affects the decision.
[Counsel]: Okay. Well, a bias is a leaning towards one side or the other or a prejudgment. Do you think that the proof of these crimes, then, would prejudge you toward finding him to be a sexually violent predator; is that fair?
[Venire Member]: ■ Didn’t quite understand what you were saying.
[Counsel]:' Well, tell me, then, what effect, if two convictions are proved to you, what effect would that have on your thinking at that point?
[Venire Member]: I would believe that he’s likely to do it again.
[Counsel]: So you couldn’t move on to the second part, because that would have proved it to your satisfaction; is that fair?

Counsel for the State objected to that question; the court sustained the objection and had counsel approach the bench for the discussion, and the trial court’s explanation of its ruling previously described in this opinion. At the point where the trial court disallowed a question, counsel had already asked if the potential juror would have a bias and whether he would consider all of the evidence. We also note that counsel subsequently obtained a showing of hands for the following question:

[By Respondent’s Counsel]: Okay. If he did this, if this psychiatrist says this, you know, you have to weigh all this evidence. And what I’m looking for, really, is for you to have a prejudice against this subject matter, which is— which is nasty, this is the time now to tell me, to let me know, because if you wouldn’t want you on your jury, if you were Mr. Larkin, then please raise your hand.

The trial court declined to restrict counsel’s questions the next time the State’s counsel objected that counsel was trying to “put magic words in the venire person’s mouth by saying in response to potential evidence, ... ‘Does that create a bias?’ ” For the remainder of jury selection, trial counsel freely questioned individual members of the venire about the effect of evidence of past conduct and their potential for bias against the appellant. The trial court also allowed counsel an additional ten minutes for voir dire.

“A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges.” Babcock, 767 S.W.2d at 709. In contrast to the situation in Babcock, Lar-kin’s counsel was not prohibited from inquiring about the venire members’ attitudes on a social issue with a potential to create bias or lack of impartiality. The record does not support the appellant’s claim that the trial court prevented counsel from determining bias in order to make challenges for cause and exercise peremptory challenges. We find no abuse of discretion in the manner in which the trial court conducted jury selection. Issue one is overruled.

The appellant’s second issue contends the judgment is void because Health and Safety Code § 841.041 violates the state constitutional prohibition on the passage of special and local laws changing the venue in civil and criminal cases. See Tex Const, art. 3, § 56; Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp. 2005). Larkin did not present this challenge to the trial court, and raises the issue for the first time on appeal. Therefore, no error is preserved for appellate review. In re Commitment of Johnson, 153 S.W.3d 129, 130-31 (Tex.App.-Beaumont 2004, no pet.); Tex.R.App. P. 33.1. Issue two is overruled.

In his third issue, Larkin argues Section 841.082(d) of the Texas Health and Safety Code is void for vagueness “in that it appears to mandate the trial judge to transfer jurisdiction ‘for purposes of appeal’ to another district court.” See Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2005) (“Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Sub-chapters F and G.”). We considered and rejected this claim in In re Commitment of Lowe, 151 S.W.3d 739, 741-44 (Tex.App.Beaumont 2004, pet. filed). We reject Larkin’s argument for the same reasons expressed in Lowe. Referring to the opinion on the merits in In re Commitment of Browning, 113 S.W.3d 851 (Tex.App.-Austin 2003, pet. denied), Larkin suggests an earlier order of this Court construed Section 841.082(d) to require transfer of an appeal to the appellate district for the transferee court. In Browning, the appellant filed notice of appeal in both the transferor and the transferee courts, creating duplicate appeals; the Supreme Court transferred the appeal filed in this Court to the Austin Court of Appeals as a discretionary transfer, thereby eliminating the duplication caused by the unilateral action of the appellant. The Court did not address the issue of which notice of appeal operated to invoke jurisdiction. See Administrative Order No. 03-9007 (Tex. Feb. 5, 2003). Issue three is overruled.

In his fourth issue, Larkin contends the commitment requirements of Health and Safety Code Section 841.082, and the final judgment and commitment order entered in accordance with the statute, violate due process because they are overly' broad and vague. See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2005). The same arguments presented by Larkin were also presented and rejected in other appeals taken under Chapter 841 of the Health and Safety Code. See Johnson, 153 S.W.3d at 131-32; In re Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex.App.-Beaumont 2004, no pet.). Some of the arguments presented in the brief were addressed in Larkin’s previous appeal; we will not revisit, those arguments now. See In re Commitment of Larkin, 127 S.W.3d 930, 932 (Tex.App.Beaumont 2004, no pet.).

In Johnson, we held the appellant failed to preserve error on his complaints regarding a document titled “Civil Commitment Requirements: Treatment and Supervision Contract.” Johnson, 153 S.W.3d at 132. The document was attached to Larkin’s pre-trial motion to dismiss the State’s petition on the ground that it was unconstitutionally punitive. Although the document is attached to a pre-trial motion, Larkin did not present the trial court with the vagueness challenge discussed in his brief, nor did he obtain a ruling from the trial court on his objections to the individual requirements mentioned in his brief on appeal. Counsel did mention to the trial court that she wanted to submit expert testimony on Larkin’s inability to be successfully treated without special conditions. The trial concluded without presenting the expert testimony and the appellant did not obtain a ruling on any specific treatment requirements. Because the errors asserted on appeal were not presented to the trial court, the appellant’s arguments have not been preserved for appellate review. Id.; Tex.R.App. P. 33.1. Issue four is overruled. We affirm the judgment.

AFFIRMED.


author: PER CURIAM.

text:
    Brian D. ANGELL, Appellant, v. MISSOURI HIGHWAY & TRANSPORTATION COMMISSION; William Doyle Eaton; Kevin Raithel; State of Missouri, Respondent.
    No. WD 62672.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.
    Michael D. Matteuzzi, Kansas City, MO, Edward D. Robertson, Jr., Jefferson City, MO, for Appellant.
    Bernard Thomas Schmitt, Kansas City, MO, for Defendant.
    Zachary Taylor Cartwright, Jr., Jefferson City, MO, Dennis J. Campbell Owens, Kansas City, MO, for Respondents.
    Robert L. Presson, Jefferson City, MO, for Amicus Curiae.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Appellant Brian Angelí was tragically injured in an automobile accident. He appeals from the trial court’s amended judgment in his personal injury suit against the Missouri Highways and Transportation Commission (MHTC) and the driver of the other automobile involved. Several other defendants were dismissed from the suit before trial. Mr. Angelí prevailed at trial, and the defendants have presented no appeal from the verdict.

Mr. Angelí asserts four points on appeal. First, he assigns error to the trial court’s dismissal of Kevin Raithel, an employee of MHTC, arguing that Mr. Raithel is not shielded from liability by the public duty doctrine. Mr. Angelí alleges further error in the trial court’s reduction of damages against MHTC, arguing that the statutory caps used to reduce the award are unconstitutional because they (1) violate the fundamental right to full access of the courts, (2) violate the separation of powers by freezing the common law, and (8) imper-missibly burden a suspect class of disabled persons.

The trial court’s amended judgment is affirmed pursuant to Rule 84.16(b).


text:
    Marian HUTNICK, Plaintiff/Appellant, v. Donald BEIL, Defendant/Respondent, Lillian E. Beil, Mercantile Trust Company, N.A., and Rosalind Sell, Defendants.
    No. ED 83521.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 1, 2005.
    Rehearing Denied April 19, 2005.

      Michael A. Gross, St. Louis, MO, for appellant.
    James H. Ferrick, III, Erin F. Bernstein, Greensfelder, Hemker & Gale, PC, St. Louis, MO, for respondent Donald Beil.
    Charles A. Seigel, III, Seigel & Wolff, P.C., St. Louis, MO, for defendant Lillian E. Beil.
    Michael N. Bartolacci, Thompson Co-burn LLP, St. Louis, MO, for defendant Mercantile Trust Co.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

This is an appeal from a judgment that approved the final accounting for a trust. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a written memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).


author: PATRICIA L. COHEN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Christopher PROSSER, Appellant.
    No. ED 85096.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 19, 2005.
    Application for Transfer Denied May 31, 2005.

      Christopher Prosser, N.E.C.C., Bowling, pro se.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Christopher Prosser (“Defendant”) appeals the judgment of the Circuit Court of St. Louis County denying his motion to correct a written sentence nunc pro tunc. In his sole point on appeal, Defendant contends that the circuit court clerk improperly amended the trial judge’s oral sentence pronouncement when the clerk issued a written sentence and judgment stating that Defendant was sentenced as a prior and persistent offender even though the judge did not orally pronounce the sentence enhancement at Defendant’s sentencing hearing.

The rules of appellate procedure require the preparation and presentation of a legal file and transcript so that the record before the court contains everything the court needs to determine the questions presented. Granada Board of Managers v. Coffer, 73 S.W.3d 874, 876 (Mo.App. E.D.2002). Pursuant to Rule 81.12(c), it is the appellant’s duty to order the transcript and compile the record on appeal. State v. Logan, 46 S.W.3d 590, 591 (Mo.App. E.D.2001). Defendant, a pro se appellant, failed to file a transcript on appeal. It is well-settled that pro se appellants are held to the same standards as attorneys and must comply with Supreme Court Rules, including Rule 81.12, which sets out the necessary contents of a record on appeal. Id. In light of Defendant’s failure to comply with Rule 81.12, it impossible for us to review, analyze and decide the issues raised in his appeal. More specifically, without the transcript, we are unable to verify the contents of the trial judge’s oral pronouncement and, in turn, cannot determine if there is, in fact, a deviation between the oral and written sentence and judgment. Accordingly, we dismiss.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

      . We do not, however, intend to imply that even if the transcript of the sentence hearing establishes that the judge did not pronounce that Defendant was a prior and persistent offender, the trial court erred in denying Defendant’s motion to correct the sentence nunc pro tunc. The State alleges, and Defendant does not disagree, that the trial judge made a finding on the record prior to the sentencing hearing that Defendant was a prior and persistent offender. "The purpose of a nunc pro tunc amendment is to make the record conform to what was actually done where there is a basis in the record for amendment.”
        Around the World Importing, Inc. v. Mercantile Trust Company, 795 S.W.2d 85, 88 (Mo.App. E.D.1990). Accordingly, if the trial record supports a finding that Defendant is a prior and persistent offender, there is no basis to correct the sentence nunc pro tunc.


text:
    Vickie JENNINGS and Virgil Jennings, Plaintiffs/Appellants, v. ST. ANTHONY’S HOSPITAL and Sue Moore, M.D., Defendants/Respondents.
    No. ED 84518.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 1, 2005.
    Application for Transfer to Supreme Court Denied April 11, 2005.
    Application for Transfer Denied May 31, 2005.
    Thomas Ducey, Belleville, IL, for appellant.
    Peter F. Spataro, Kenneth W. Bean, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Vickie Jennings and Virgil Jennings appeal from the judgment of the trial court dismissing their petition with prejudice. They contend that their petition was timely filed and that a dismissal of a medical malpractice claim for failure to attach a properly notarized affidavit is a dismissal without prejudice.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Norman BANKS, Plaintiff-Appellant, v. Andre TOWNSEL d/b/a The Townsel Law Firm, Respondent.
    No. ED 84842.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 8, 2005.
    Rehearing Denied April 19, 2005.
    Norman Banks, Florissant, pro se.
    Andre E. Townsel, St. Louis, pro se.
    Before LAWRENCE E. MOONEY, P.J.; LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The plaintiff, Mr. Banks, appeals from the trial court’s grant of summary judgment in favor of the defendant, Andre Townsel d/b/a The Townsel Law Firm. In his sole point on appeal Mr. Banks alleges the trial court abused its discretion and violated Sections 490.130 and 492.370 RSMo.2000 when it used portions of an uncertified, unsealed deposition to grant summary judgment.

We have reviewed the parties’ briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).