author: CATHERINE STONE, Justice.

text:
    Ivey BURKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00362-CR.
    Court of Appeals of Texas, San Antonio.
    June 15, 2005.
    Rehearing Overruled Aug. 4, 2005.

      Warren Alan Wolf, San Antonio, for appellant.
    Laura Burton Bates, Asst. Crim. Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice (concurring in the judgment only), SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Appellant, Ivey Burkett, was convicted of driving while intoxicated and assessed a ten year sentence and a $1000 fine. Burk-ett raises eight issues on appeal. We have reviewed all claims of error and conclude that no harmful error occurred. Accordingly, we affirm the trial court’s judgment.

Background

On June 1, 2003, at approximately 11:00 p.m., Santiago Reyes was driving on an access road in Bexar County, Texas, when he stopped at a red light. Reyes heard the sound of screeching brakes and within seconds, the right side of his stopped vehicle was sideswiped by a vehicle driven by the appellant, Ivey Burkett.

Reyes turned and saw Burkett pull into a parking lot. Reyes followed, and the men exited their vehicles to exchange insurance information. Burkett admitted he was at fault in the accident. According to Reyes, Burkett seemed sluggish, tired, and “kind of intoxicated.” Burkett leaned against his vehicle for support and spoke with slow speech. Reyes testified he had to listen very carefully to understand what Burkett was saying.

Officer John Yarborough was the first police officer to arrive at the scene of the accident. According to Yarborough, Burk-ett smelled of alcohol, his speech was slurred, and he was having difficulty keeping his balance. Yarborough suspected Burkett was intoxicated, so he called for assistance because he is not trained to administer field sobriety tests. In his police report, Yarborough noted Burkett was unemployed due to disability. Yarborough concluded the accident had been caused by Burkett’s failure to control the speed of his vehicle, alcohol consumption, and driver inattention. When asked by defense counsel why Yarborough did not write in his report the accident was caused by Burk-ett’s intoxication, Yarborough stated he had not formed any conclusion about Burkett’s intoxication because he is not trained to administer field sobriety tests. Yarborough made these notations in his report before he was aware of Burkett’s performance on the field sobriety tests.

Officer Michael Starnes responded to Yarborough’s call for assistance and arrived at the scene of the accident within five minutes. Yarborough informed Starnes he suspected Burkett was intoxicated. Starnes made contact with Burkett and asked him to perform field sobriety tests. While explaining the tests to Burk-ett, Starnes noticed that Burkett was unsteady on his feet and had a strong smell of intoxicants on his breath, slurred speech, and bloodshot eyes. Burkett did not inform Starnes he suffered from any medical conditions that would preclude him from performing the field sobriety tests. Burkett stated he was not wearing contact lens, and verified he had not suffered any head injuries in the car accident.

In a smoothly paved, well-lit parking lot, Starnes administered three standardized field sobriety tests to Burkett: the horizontal gaze nystagmus (HGN) test; .the walk and turn test; and the one leg stand test. Burkett exhibited all six clues on the HGN test, indicating he was alcohol-impaired. Starnes then administered the vertical gaze nystagmus (VGN) test to determine if Burkett had been drinking excessively. Burkett did not exhibit vertical nystagmus. Starnes explained to the jury that the VGN test does not establish whether someone is intoxicated, but it can establish whether a person has consumed an excessive amount of alcohol.

Burkett next failed the walk and turn test, exhibiting six out of eight possible clues. Starnes concluded Burkett failed the test because he was unable to follow the instructions, could not keep his balance during the instruction period, did not touch his heel to toe, had to raise his arms for balance, turned to the wrong side, completed only eight of the nine steps walking forward, and completed only three of the nine steps walking back.

Lastly, Burkett failed the one leg stand test, exhibiting several clues: he used his arms for balance; swayed back and forth; and had to put his foot down four times. Based on his observations and Burkett’s poor performance on the field sobriety tests, Starnes concluded Burkett was intoxicated and had lost the normal use of his mental and physical faculties. Starnes handcuffed Burkett and called for an officer to process Burkett for DWI.

Officer Rodney Olivarez, who was dispatched to the scene of the accident to take Burkett into custody, testified that Burkett had bloodshot eyes, slurred speech, and a strong smell of intoxicants on his breath. Olivarez noted in his police report Burkett had a visible, injury, but did not indicate the specific injury, and could not remember at trial.' Before taking Burkett into custody, Olivarez administered the HGN field sobriety test to Burk-ett and observed six clues.

At the magistrate’s office, Burkett refused to take the intoxilyzer test and also refused to give a blood sample. Because Burkett refused to take the intoxilyzer test, Olivarez took him into a room where Burkett could be videotaped. Burkett stated he had a bad knee. When Burkett was asked to perform field sobriety tests on video, he refused.

Burkett’s defense at trial was disability. The defense put on two witnesses to testify about Burkett’s physical and mental health conditions: Dr. Delia Bullock, and James Burkett, the appellant’s brother.

Dr. Bullock, who began treating Burkett for AIDS in 1999, testified extensively about his medical condition. Burkett has had a severe infection in his cervical vertebrae and underwent surgery to fuse the vertebrae in his neck. As a result of the surgery, Burkett has difficulty turning his head from side to side and tipping his head back. Burkett suffers from age-related degenerative joint disease and osteoarthritis in his lower back. This has left him with chronic back pain and causes him to have difficulty ambulating. Burkett has pulmonary problems and abnormal lungs, so he does not have good exercise tolerance.

Burkett also suffers from abnormal liver functions due in part to Hepatitis C, a liver disease. After her initial visit with Burk-ett, Dr. Bullock warned him he needed to stop consuming alcohol, and his liver function has improved. Despite the improvement in his liver function, Dr. Bullock could not verify whether Burkett has discontinued consuming alcohol, or whether he consumed alcohol the night in question. Burkett also suffered a pelvic fracture pri- or to 2003, an infection in one of his heart valves, an illness called “empyema” (a collection of fluid around the lung), and cerebral atrophy. Dr. Bullock testified that many of Burkett’s conditions are chronic.

Dr. Bullock also testified that Burkett is odd in his behavior and demeanor. She stated that he is difficult to understand because he does not have any teeth and speaks with slurred speech. Burkett also walks with an unsteady gait — according to Dr. Bullock, “you’re almost fearful he’s going to fall over.” Due to Burkett’s peculiar demeanor, Dr. Bullock suspected he was intoxicated on a few occasions and ordered alcohol studies on him, which came back negative. Dr. Bullock observed the police videotape of Burkett and stated that is how he speaks and ambulates when she has seen him for his check-ups. In her opinion, the videotape did not indicate Burkett had lost the normal use of his mental and physical faculties. Dr. Bullock admitted that had she known Burkett caused a car accident, appeared intoxicated to police officers, and refused to take an intoxilyzer test, her opinion about Burk-ett’s impairment due to alcohol consumption could change. Dr. Bullock testified that if Burkett consumed alcohol, he would be even more impaired than he is normally.

Dr. Bullock also testified that a person with Burkett’s medical conditions can develop red, glassy eyes, but to her knowledge, Burkett has never suffered from that eye condition. She also stated that the physical conditions Burkett suffers from would not have caused him to have an odor of intoxicants on his breath, and verified the HGN field sobriety test is a rehable indicator of whether someone is intoxicated.

Burkett’s brother James testified that Burkett has the AIDS virus, does not have any teeth, lives with one lung, and suffers from heart problems. While they were growing up, James noticed Burkett suffered from “severe abnormalities” mentally. According to James, Burkett saw a specialist when he was 12 or 13 for his mental illness and received thirty shock treatments. James estimates Burkett has suffered from his medical conditions for over a decade. James watched the videotape of Burkett that was taken the evening of his arrest, and testified the manner in which Burkett spoke and ambulated were normal.

The jury found Burkett guilty of the charged offense, and also found both enhancement paragraphs true. During the punishment phase of the trial, the jury heard testimony that Burkett received pri- or convictions for assault with intent to rape in 1973, for DWI in 1994 and 1995, and for possession of cocaine in 1995. There was also testimony that Burkett damaged his mother’s home in August 2001; abused drugs and alcohol in his mother’s home in September 2001; admitted in October 2001 to being a cocaine user for twelve years with occasional marijuana use; was taken to the hospital in May 2003 for alcohol and cocaine intoxication • and violent behavior; and was admitted to the hospital on June 3, 2003 (two days after his arrest for DWI in the instant case) for cocaine-induced hallucinations. The jury sentenced Burkett to ten years imprisonment and assessed a $1000 fine.

Factual Sufficiency

In his first issue, Burkett contends the evidence presented at trial is factually insufficient to support his conviction for DWI.

In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004), cert. denied, — U.S.-, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence exists that is strong enough that the beyond-a-reasonable doubt standard could not be met, so the verdict should not stand. Id. at 485.

In performing a factual sufficiency review, we are to give deference to the fact-finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482. We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Id. at 481. A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Id.

To support Burkett’s conviction for felony DWI, the State was required to prove that Burkett operated a motor vehicle in a public place while intoxicated and that Burkett had two prior convictions for DWI. Tex. Pen.Code Ann. §§ 49.04(a) & 49.09(b)(2) (Vernon 2003 & Supp.2004-05). Burkett does not contest the sufficiency of the evidence supporting his two prior DWI convictions. The only element of the offense he contests is intoxication. Under the Penal Code, intoxication may be proven when the evidence shows that the defendant has lost the normal use of his mental or physical faculties by reason of alcohol consumption. Tex. Pen.Code Ann. § 49.01 (2)(A) (Vernon 2003) (emphasis added).

In conducting a factual sufficiency review, an appellate court must consider the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). At trial, Dr. Bullock testified that Burkett suffers from medical impairments that give the appearance of intoxication. Dr. Bullock testified that Burkett normally has slurred speech and an unsteady gait, which could provide an innocent explanation for the eyewitness testimony that Burkett exhibited those symptoms of intoxication. The jury heard testimony that Dr. Bullock thought Burk-ett was intoxicated during some of his hospital visits, during which his blood alcohol tests came back negative. Dr. Bullock and James both viewed the police videotape of Burkett and testified that Burkett did not appear differently in the video than he does when he is not intoxicated.

The first officer who observed Burkett in the field, Officer Yarborough, stated he could not determine if Burkett’s symptoms of intoxication were due to intoxication or disability. Officer Olivarez also noted on his police report that he observed a visible injury on Burkett after the accident. The officers admitted- in court that having back problems and disabilities can, in some cases, cause a defendant to perform poorly on field sobriety tests.

There was considerable evidence supporting intoxication, however. Although Dr. Bullock testified that Burkett did not appear more impaired than usual in the police video, she also indicated Burkett, because of his disabilities, is more susceptible to impairment when he has consumed alcohol. Three police officers smelled a strong odor of alcohol on Burkett’s breath, and none of Burkett’s physical impairments can cause him to smell like alcohol. Although Burkett’s physical impairments may explain why he performed poorly on two of the field sobriety tests, he was unable to follow simple instructions, indicating a degree of mental impairment. Burkett also exhibited six clues on the HGN test, which has been recognized as a reliable indicator of intoxication. See Emerson v. State, 880 S.W.2d 759, 768 (Tex.Crim.App.1994), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994). Burkett verified he had not suffered any head injuries that could affect the reliability of the HGN test, and none of his physical impairments would have affected its accuracy. When the HGN test was conducted a second time by Officer Olivarez, Burkett again exhibited all six clues.

Burkett also refused to provide the police a specimen of his breath or a sample of his blood to determine his blood alcohol content (BAC). Burkett’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt. See Tex. TRAnsp. Code Ann. § 724.061 (Vernon 1999) (“A person’s refusal of a request by an officer to submit to taking of a specimen of breath or blood ... may be introduced into evidence at the person’s trial”); Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App.1988) (the jury may infer guilt from a defendant’s refusal to take a breath test).

Viewing all of the evidence in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, or that Burkett’s contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817. Burkett’s first issue is overruled.

Medical Excuse InstRuction & “Reasonably SobeR DRIVER” STANDARD

In his second and third issues, Burkett contends the trial court erred in denying his request for a medical excuse instruction, and a disabled individual should not be compared to a “reasonable, non-intoxicated” individual when disability has been raised by medical testimony. Burkett contends the jury was misled about the law and he was unable to argue medical disability in his closing argument and present a medical disability defense.

Burkett argues that the trial court erred in denying his medical excuse instruction. Prior to the reading of the jury charge, defense counsel orally proposed the following jury instruction:

DEFENSE: Well, I propose and I would like this into the record and propose this — that it be — that it be added. That if the Defendant was — suffered from degenerative disk disease — lumbar cervical disorder, Hepatitis C, severe dentitis, HIV positive, at the time — cerebral atrophy — at the time and place in question, rather than being under the influence of alcohol, he would be not guilty of the offense charged even if he was driving a motor vehicle.
Therefore, if you find from the evidence that on the occasion in question, and at the time of the Defendant’s arrest he was suffering from degenerative disk disease, lumbar cervical disorder, Hepatitis C, severe dentitis and cerebral atrophy, or if you have a reasonable doubt thereof, you will acquit the Defendant. COURT: Denied.

In Giesberg v. State, the Texas Court of Criminal Appeals held that any defensive theory not recognized or specifically labeled as either a defense or an affirmative defense by the Legislature does not warrant a separate instruction. 984 S.W.2d 245, 250 (Tex.Crim.App.1998), cert. denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999). Burkett’s medical excuse instruction is not a statutorily-enumerated defense, and merely serves to negate the impairment element of the State’s case. Therefore, the trial court properly denied Burkett’s requested instruction. See Ortiz v. State, 93 S.W.3d 79, 92 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003) (“[A] defensive instruction is not required when the issue in question is not a statutorily-enumerated defense and merely serves to negate elements of the State’s case”); Giesberg, 984 S.W.2d at 250. The trial court did not err in refusing Burkett’s proposed instruction. We overrule Burkett’s third issue.

In his second issue, Burkett argues that it is per se unreasonable to use an objective standard for intoxication when the defendant in a DWI case is disabled. Burkett contends the trial court erred by permitting the State to compare him to a “reasonably sober driver,” arguing that it is not a “reasonable person” listed in the indictment. Rather, the individual in the indictment is the particular defendant and his specific normal use of faculties. This argument was rejected in Massie v. State, however:

We do not construe an allegation that appellant did not have normal use of his mental and physical faculties the same as an allegation that appellant did not have his normal use of his faculties. The former allegation does not require proof of the defendant’s normal abilities. Rather, it means that the faculties which must be tested belong to the appellant. If there was evidence that appellant could not use his faculties on the occasion in question, in the manner in which the normal non-intoxicated person would be able to use his faculties, the evidence is sufficient to convict him unless the jury finds that his inability to perform on that occasion is not due to intoxicants (e.g. diabetes, epilepsy).

744 S.W.2d 314, 316 (Tex.App.-Dallas 1988, writ refd) (emphasis in original). Several courts of appeals have since adopted this holding. See, e.g., Railsback v. State, 95 S.W.3d 473, 484 (Tex.App.-Houston [1st Dist.] 2002, pet. refd) (holding that the State does not have to establish what the defendant’s normal use of his faculties is in order to prove that he did not have normal use of his mental and physical faculties); Fogle v. State, 988 S.W.2d 891, 894 (Tex.App.-Fort Worth 1999, pet. ref'd) (same); Reagan v. State, 968 S.W.2d 571, 572 (Tex.App.-Texarkana 1998, pet. ref'd) (same).

In further support of his argument, Burkett cites our opinion in Hernandez v. State, in which we held:

A defendant cannot be found to be intoxicated if he lacks the normal use of mental or physical faculties for a different reason, such as disability, illness, fatigue, stress, or clumsiness.

107 S.W.3d 41, 51 (Tex.App.-San Antonio 2003, pet. ref'd) (citing Massie, 744 S.W.2d at 316). Our ruling in Hernandez does not support Burkett’s claim that an objective standard for intoxication is inappropriate for a disabled DWI defendant. To the contrary, as this court noted in Hernandez, the objective standard “is a correct statement of the law because it requires the jury to consider why the defendant does not have the normal use of faculties.” Id. In Hernandez, as in the instant case, the jury heard testimony that the DWI defendant had trouble walking and keeping his balance even when he was not intoxicated, and thus appeared intoxicated even when he was sober. Id. We rejected the defendant’s argument that the objective standard unreasonably compared him to a reasonable, non-intoxicated person, holding:

[E]ven applying the objective standard, an individual can be found intoxicated only if he lacked the normal use of faculties by reason of the introduction of a substance into his body. The subjective standard, by comparison, places an unnecessary burden on the State to present evidence of the defendant’s own non-intoxicated faculties.

Id. (Emphasis added).

In this case, we hold that it was not per se unreasonable to use an objective standard for intoxication. We do not agree that Burkett was unable to present a defense. The jury heard testimony that Burkett failed three field sobriety-tests that a reasonable, non-intoxicated person would have passed. Burkett presented evidence that his poor performance on the field sobriety tests could have been due a reason other than intoxication, i.e. his disabilities. Dr. Bullock discussed Burkett’s physical impairments and how they would prevent him from adequately performing field sobriety tests that reasonable sober individuals can pass. The jury sifted through the testimony, weighed the evidence, and apparently concluded Burkett lost the use of his faculties due to intoxication. The jury’s conclusion that intoxication rather than disability caused Burkett to lose the use of his faculties is supported by evidence that Burkett smelled strongly of intoxicants; failed the HGN field sobriety test each time it was administered; could not follow instructions; and refused to take the intoxilyzer test, give a breath sample, or perform field sobriety tests on video. We overrule Burkett’s third issue.

ImpRoper Jury Argument

In his fourth issue, Burkett contends the trial court erred in overruling the following objection to the State’s argument during closing argument:

STATE: Look at the totality of everything you heard and saw and the credibility of the witnesses versus this-this man, this leech on society.
DEFENSE: Objection; improper argument.
COURT: Overruled.

Burkett contends this argument of the State is harmful and requests a new trial.

The general areas of proper jury argument are summation of the evidence, reasonable deduction from the evidence, answer to the argument of opposing counsel, and plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9, 14 (Tex.Crim.App.1994). If the argument exceeds permissible bounds, no reversible error occurs unless the argument affects the accused’s substantial rights. Tex.R.App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). To determine if the State’s improper argument affected Burk-ett’s substantial rights, we look to three factors: 1) the severity of the misconduct; 2) measures adopted to cure the misconduct; and 3) the certainty of the conviction absent the misconduct. Mosley, 983 S.W.2d at 259.

We do not condone the State’s comment, and the objection to the comment should have been sustained. We are constrained to note, however, that calling Burkett a “leech on society,” though reprehensible, is similar to other improper jury arguments that have been held harmless. See, e.g., Burns v. State, 556 S.W.2d 270, 285 (Tex.Crim.App.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977) (court held that the evidence justified the prosecutor’s comment that the defendant was an “animal”); Hernandez v. State, 791 S.W.2d 301, 307 (Tex.App.-Corpus Christi 1990, pet. refd) (prosecutor’s reference to defendant as “scum and goat” was improper, but not reversible); Norwood v. State, 737 S.W.2d 71, 74 (Tex. App.-Houston [14th Dist.] 1987, pet. ref'd) (prosecutor’s comment that defendant was “animal” was error, but not reversible). The first factor of the harm test weighs in Burkett’s favor. The second factor also weighs in Burkett’s favor because no curative action was taken. Nevertheless, the third factor weighs heavier in the State’s favor. Absent the State’s comment, it cannot be said that the outcome of the trial would have been different given the State’s evidence of Burkett’s impairment due to alcohol consumption. Therefore, we conclude that Burkett’s substantial rights were not affected by the State’s improper comment to the jury. We overrule Burkett’s fourth issue.

Impropee Jury Argument: Sentencing Phase

In his fifth issue, Burkett contends the trial court erred in failing to instruct the jury to disregard the State’s argument during closing arguments that “when a defendant goes to prison, he’s going to receive all the free medical care he likes.” Burkett objected to the statement, and the court sustained his objection because the State’s argument was outside the record. The court denied Burkett’s instruction to disregard.

The State argues the comment was a proper response to argument of defense counsel. We disagree. Defense counsel mentioned during his argument that Burk-ett is disabled but never discussed medical care. Therefore, we must decide whether Burkett was harmed by the improper argument.

Improper jury argument is non-constitutional error. Tex.R.App. P. 44.2(b); Mosley, 983 S.W.2d at 259. Rule 44.2(b) provides that a non-constitutional error “that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). In determining whether the defendant’s substantial rights have been affected, we balance the following factors: 1) the severity of the misconduct (prejudicial effect); 2) curative measures; and 3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004) (citing Martinez v. State, 17 S.W.3d 677, 693-694 (Tex.Crim.App.2000)) (setting forth the balancing test to be conducted when defendant complains of improper jury argument in the punishment phase of a non-capital trial).

The first factor concerns the severity of the misconduct and focuses on the prejudicial effect of the comment. Id. at 78-79. Throughout its closing argument, the State discussed Burkett’s prior felony convictions, volatile demeanor, and ongoing problems with substance abuse. The complained-of comment was one sentence out of an argument that spanned four pages. The State’s comment that Burkett would receive free medical care in prison is relatively mild. The second factor requires little analysis because there was no curative instruction. We note that the State did nothing to emphasize the comment made. This factor does not weigh heavily against the State. The third factor, however, weighs heavily in the State’s favor. This was Burkett’s third conviction for DWI; he had prior felony convictions for cocaine possession and assault with intent to rape; he was a chronic substance abuser and exhibited volatile behavior at home. We can say with fair assurance that absent the State’s comment, the jury would have assessed the same punishment, i.e. a ten-year sentence and $1000 fine. Given the State’s brief comment and the evidence supporting the ten-year sentence, we conclude the error was harmless. Burkett’s fifth issue is overruled.

Commitment Questions

In his sixth and seventh issues, Burkett contends the trial court improperly permitted the State to ask a commitment question during voir dire, and erred in sustaining the State’s objection to his commitment question.

The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002). Therefore, appellate courts should not disturb a trial court’s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Id. A trial court abuses its discretion if it prohibits a proper question regarding a juror’s views on an issue applicable to the case. Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App.1996), cert. denied, 535 U.S. 1065, 122 S.Ct. 1935, 152 L.Ed.2d 840 (2002). Additionally, a trial court abuses its discretion if it allows a question that attempts to commit the juror to a particular verdict based on a set of circumstances analogous to the case in question. See Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App.1997).

In Standefer v. State, the Texas Court of Criminal Appeals articulated a specific test for determining when a voir dire question calls for an improper commitment. 59 S.W.3d 177, 179-184 (Tex.Crim.App.2001). First, trial courts must determine whether a particular question is a commitment question. Id. at 179. A commitment question is a question that “commit[s] a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Id. If the court determines that a particular question is a commitment question, the court must then decide whether the question gives rise to a valid challenge for cause. Id. at 181-82. If the question meets the challenge for cause requirement, the court must then determine whether the question includes only those facts necessary to test whether a prospective juror is challengea-ble for cause. Id.

As summarized by the court in Stande-fer:

So, the inquiry for improper commitment questions has two steps: (1) Is the question a commitment question, and (2) Does the question include facts — and only those facts — that lead to a valid challenge for cause? If the answer to (1) is “yes” and the answer to (2) is “no”, then the question is an improper commitment question, and the trial court should not allow the question.

Id. at 182-83. We now review the questions at issue under these guidelines.

A. “One Witness” Question

During voir dire, the State posed the following question to the jury:

If the State proves to you every element of driving while intoxicated, and you believe that the State has met every element of the offense through the testimony of one witness, beyond a reasonable doubt, could you convict the Defendant based on that one witness’s testimony, or would you require more?

Defense counsel objected to the question as an improper commitment question, and the court overruled the objection. The State proceeded to ask all the jurors the same question. Defense counsel continued to object, but the trial court refused to rule on his subsequent objections.

The State concedes that the question posed by the State constituted a commitment question. Therefore, we must determine whether the question led to a valid challenge for cause. The State may challenge a juror for cause when the juror would hold the State to a higher standard than “beyond a reasonable doubt.” Coleman v. State, 881 S.W.2d 344, 360 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995). Consequently, a prospective juror is properly subject to challenge for cause if he indicates that he could not convict based on the testimony of one witness, even if he believed that witness beyond a reasonable doubt. See Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App.1995). However, a prospective juror is not chal-lengeable for cause merely by setting his or her threshold for reasonable doubt higher than the minimum required by law, e.g., a prospective juror who would require the testimony of more than one witness in order to be convinced beyond a reasonable doubt. See id.

In this case, the State was entitled to inquire about whether a prospective juror could abide by the standard of proof set by the law or if the juror would hold the State to a higher standard. See id. at 533-35. A response indicating the juror would hold the State to a higher standard would properly give rise to a valid challenge for cause. See id. at 533; Harris v. State, 122 S.W.3d 871, 881 (Tex.App.-Fort Worth 2003, pet. ref'd) (“How many people if selected on the jury could not find somebody guilty based upon the testimony of just one witness, even if they believed that one witness beyond a reasonable doubt?” was held to be a proper commitment question). Because the State’s commitment question could lead to a valid challenge for cause, we proceed to the final step of analysis under Standefer.

Under Standefer, we must determine whether the State’s question included only necessary facts. Here, the State’s question did not attempt to commit the prospective jurors in conjunction with the specific facts of the case. The State’s question was not unnecessarily fact intensive, and included only those facts necessary to determine whether a prospective juror was challengeable for cause. We hold that the trial court did not abuse its discretion by allowing the State to ask the prospective jurors whether they could convict based on the testimony of only one witness whom they believed beyond a reasonable doubt. The State’s question was not designed to bind the prospective jurors to a position based on a particular set of facts, but sought to elicit whether the prospective jurors could impartially judge the credibility of a witness and follow the law. We overrule Burkett’s sixth issue.

B. “Guilt Based Solely on ArRest” Question

In his seventh issue, Burkett contends the trial court abused its discretion in sustaining the State’s objection to the following voir dire question posed by defense counsel:

If a person is arrested for DWI, how likely or unlikely is it that that person is guilty of the charge of DWI? Would you say very likely, likely, somewhat likely, unlikely, or very unlikely? The mere fact that he is arrested for DWI, how many of you would say that if he is arrested for DWI, that it’s very likely that he’s guilty? Raise your hand.

Burkett’s question meets the first Stande-fer prong: it is a question that requests the jurors to resolve their verdict after learning a specific fact. The State contends Burkett’s commitment question fails the second Standefer prong because not all answers to the question would give rise to a valid challenge for cause. We disagree. “An open-ended question can be a commitment question only if the question asks the prospective juror to set aside the hypothetical parameters for his decision-making.” Standefer, 59 S.W.3d at 180. For a commitment question to be proper, one, not all, of the possible answers to the question must give rise to a valid challenge for cause. Id. at 182. If a juror had answered the defense’s question affirmatively, the juror could be stricken for cause. See Tex.Code CRiM. PROC. Ann. art. 35.15 (Vernon 1989) (a venire person may be stricken for cause if he or she has a preconceived notion of the defendant’s guilt or innocence). Accordingly, the question is not impermissibly broad under Standefer.

However, even assuming the trial court erred in sustaining the State’s objection, errors are reversible only if they are harmful. See Tex.R.App. P. 44.2(b). An examination of the record reveals that any error was harmless. At the beginning of voir dire, the trial judge told the jurors:

The Defendant is presumed innocent. He sits here today cloaked with the presumption of innocence. Unless and until the State proves the essential elements of the indictment by bringing forth competent evidence pursuant to the rules of evidence here in a courtroom under oath, that presumption of innocence continues to be maintained. So, if right now you were asked to vote whether or not the Defendant is guilty or not guilty, what would your vote have to be?

All the prospective jurors stated their answer would be not guilty. Defense counsel informed the prospective jurors that “[i]t is not against the law in the State of Texas to drink an alcoholic beverage, and then get behind the wheel and drive home.” Defense counsel asked the prospective jurors if any of them believed a person should not be allowed to drink an alcoholic beverage and then get behind the wheel of a vehicle and drive. Defense counsel also discussed the burden of proof and asked the prospective jurors if they would be able to follow the law: “Is anyone not going to hold the State to their burden of proving the case beyond a reasonable doubt of all the elements in this case?” The record reflects Burkett was able to intelligently exercise any challenges for cause. We overrule Burkett’s seventh issue.

HGN Test Results

In his eighth issue, Burkett argues the trial court erred in permitting the State to introduce evidence “equating the Horizontal Gaze Nystagmus (HGN) test to intoxication”:

STATE: The six clues out of a possible total of six clues on the HGN, you testified earlier that indicated to you that he was intoxicated?
WITNESS: Yes. That’s a very strong possibility. Not only that he’s intoxicated, but that he’s intoxicated beyond the statutory limit.
DEFENSE: Objection, your Honor. That’s not proper. It goes beyond the scope of the task, what it indicates, and it’s based on Erdman v. State, improper interpretation of the HGN test.
COURT: Based on what?
DEFENSE: The case of Erdman v. State, that the HGN test just shows the presence of alcohol. It doesn’t show— there’s no correlation to blood alcohol content.
STATE: I’m not asking the officer to quantify the percentage chance that the Defendant was intoxicated based on the six clues that he observed. I’m simply asking him whether that indicated to him whether he was intoxicated or not, and that’s what he answered yes. I’m not asking him for an actual percentage number, which is what he’s objecting to.
COURT: I didn’t hear him saying that.
DEFENSE: He was — if I may, he was starting to say—
COURT: What he said was—
DEFENSE: — he was past the—
COURT: — it would indicate he was intoxicated to the level he was not — did not have the normal use of his mental and physical faculties.
DEFENSE: I think he was saying that it was past the statutory limit, is what he was saying, and that’s not proper, form.
COURT: Let me hear — what were you saying? Not only—
WITNESS: In my training, we were trained that, um, when someone has six clues, the likelihood of them being beyond the statutory limit was a certain percentage at -
DEFENSE: And I object, Judge.
COURT: Let him finish before we—
WITNESS: I cannot tell you at this point, quote, what the percentage chance is. I was basically just quoting the training I had received.
COURT: The training shows it’s more likely than not, is that what you’re saying?
WITNESS: Yes, sir.
COURT: Objection is overruled.

The State argues that Burkett waived this issue because defense counsel injected similar testimony during cross-examination when he commented in front of the jury that the HGN test is seventy-five percent accurate. We disagree. There is a distinction between the comment made by defense counsel and the State’s expert’s comments. Defense counsel was referencing the reliability of the HGN test itself; his statement was not an attempt to correlate Burkett’s HGN test results to a specific BAC. Thus, we do not find waiver.

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). We will not reverse a trial court’s ruling if it is within the “zone of reasonable disagreement.” Id. at 391.

In Emerson, the Court of Criminal Appeals stated that an officer qualified as an expert on the administration and technique of the horizontal gaze nystagmus test can testify concerning a defendant’s performance on the HGN test, but may not correlate the defendant’s performance on the test to a precise BAC. Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App.1994), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994). An officer trained to administer the standardized sobriety tests may opine that a defendant was under the influence of alcohol, but he or she may not opine about that defendant’s specific BAC. Id.

On appeal, Burkett does not dispute the reliability or the application of the HGN test, but contends the State exceeded the proper scope of testimony concerning the result of the HGN test when Officer Starnes testified that the presence of six clues indicated Burkett was intoxicated beyond the legal limit. Under the guidelines of Emerson, this was an impermissible attempt to estimate Burkett’s blood alcohol level, and the trial court erred in admitting the evidence. Emerson, 880 S.W.2d at 769; Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd) (the prosecutor’s attempt to ask the witness to correlate Webster’s performance on the HGN test to conclusion that Webster’s BAC exceeded the legal limit was held to be an impermissible attempt to estimate Webster’s BAC on the basis of HGN test results).

Since the alleged error in this case is not constitutional, we may not reverse the trial court’s judgment unless the error affected the defendant’s substantial rights. See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328 U.S. 750, 766, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

The evidence in this case did not affect Burkett’s substantial rights. The indictment does not allege that Burkett was intoxicated by having a blood alcohol concentration in excess of 0.08; the indictment alleges that Burkett was intoxicated because he lost the normal use of his mental and physical faculties due to alcohol consumption. Throughout its case, the State argued Burkett lost the normal use of his faculties and never referenced his potential BAC. Additionally, the State’s evidence supported its impairment theory argument. In addition to Starnes’ testimony on the result of the HGN test, the jury heard the testimony that Burkett smelled strongly of alcohol, could not follow instructions, refused to take the intoxilyzer test, and refused to perform the field sobriety tests on video. Since there was other evidence of Burkett’s intoxication, the evidence of the HGN test did not have a substantial or injurious effect on the jury’s verdict. We overrule Burkett’s eighth issue.

Conclusion

Having overruled each of Burkett’s appellate issues, the judgment of the trial court is affirmed.

      . The Texas Penal Code recognizes the general defenses of insanity, mistake of fact, mistake of law, intoxication, duress, entrapment, and age affecting criminal responsibility. Chapter Nine outlines justifications absolving a defendant of criminal responsibility, such as public duty, necessity, self-defense, and defense of third persons. See Tex Pen.Code Ann. §§ 2.03 and 2.04; Chapters Eight and Nine (Vernon 2003).

      . During oral argument, Burkett brought up specific instances where the trial court sustained the State's objections to his arguments. The State objected to defense counsel’s comment during voir dire that the State was required to prove Burkett’s normal use of his faculties. The State also objected to defense counsel's argument to the jury during closing that the relevant issue for them to consider was what should be considered "normal” for Burkett in terms of his mental and physical faculties. The State objected that defense counsel’s comment was not the law given to the jury in the court’s charge. The State’s objections were sustained. Under Massie, we cannot conclude the trial court erred in sustaining these objections. Massie, 744 S.W.2d at 316 (it is not the State’s burden to prove what the defendant's normal faculties are in order to prove he did not have normal use of his mental and physical faculties). We note that the State did not object to defense counsel's recitation of the facts and his argument that the facts supported a conclusion that Burkett’s symptoms of intoxication were due to a reason other than alcohol consumption. The statements the State objected to were not discussions of the facts; the State objected to defense counsel’s attempts to introduce a legal instruction that had not been submitted to the jury.


source: Caselaw Access Project

license: Public Domain

text:
    Wakako Chaisson FAGAN f/k/a Wakako Chaisson, Appellant, v. Yoshiko CHAISSON, Appellee.
    No. 04-04-00437-CV.
    Court of Appeals of Texas, San Antonio.
    July 13, 2005.
    Rehearing Overruled Sept. 12, 2005.

      Charles M. Jefferson, Law Office of Charles M. Jefferson, Robert E. Golden, Robert E. Golden, P.C., San Antonio, for appellant.
    James N. Higdon, Higdon, Hardy & Zu-flacht, L.L.P., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

This appeal concerns a suit to enforce a divorce decree. Wakako Fagan claims the trial court erred by enforcing the divorce decree as to her deceased husband’s federal employee life insurance policy, lump sum death benefit, and survivorship annuity. She further claims the trial court erred by awarding Yoshiko Chaisson attorney’s fees. We affirm.

Factual & PROCEDURAL Background

The facts of this case are undisputed. Aubin Chaisson and Yoshiko Chaisson were married in 1956. From 1981 until his death in 1997, Aubin worked for the United States Government. Through his employment with the federal government, Au-bin acquired a term life insurance policy under the Federal Employee Group Life Insurance Act (“FEGLIA”). The total life insurance benefit under this policy was $50,000. Aubin also accrued other benefits as a result of his federal employment, including a lump sum death benefit in the amount of $67,707.97 and a survivorship annuity benefit in the amount of $277.00 per month.

Aubin and Yoshiko divorced on September 15, 1994. Pursuant to Aubin and Yoshiko’s property settlement agreement, the 274th Judicial District Court of Comal County, Texas entered a decree of divorce awarding Yoshiko 50% of the retirement benefits Aubin had accrued as of September 15, 1994. The court also awarded Yoshiko, pursuant to the parties’ agreement, 100% of the community interest in any other property (other than personal effects) that Aubin did not disclose to her during the divorce proceedings. Shortly after the trial court entered its written divorce decree, Aubin married Wakako.

Yoshiko subsequently appealed from the decree of divorce entered by the trial court because she did not believe it accurately reflected the parties’ property settlement agreement. On September 18, 1996, the Austin Court of Appeals reversed the trial court’s judgment and remanded the cause for a new trial as to the division of the marital estate between Aubin and Yoshiko. Aubin filed a petition for review with the Texas Supreme Court following the court of appeals’s judgment.

On April 30, 1997, while his petition for review was pending before the supreme court, Aubin died. Sometime after his death, Aubin’s FEGLIA insurance policy proceeds were paid to Wakako in accordance with the designation of beneficiary form he completed before his death. In addition, both Yoshiko and Wakako applied for Aubin’s survivorship annuity and lump sum death benefit following his death. Besides filing her claim for Aubin’s federal benefits, Yoshiko filed an original petition in the 225th Judicial District Court of Bexar County, Texas against Wakako, her deceased husband’s estate, and the Office of Personnel Management (“OPM”). Yoshiko’s petition claimed that she was the rightful beneficiary of Aubin’s lump sum death benefit and survivorship annuity, not Wakako. Accordingly, the petition requested that the trial court enjoin the OPM from paying the disputed benefits to Wakako until the division of the marital estate between Aubin and Yoshiko was finalized. The petition also requested the court to enjoin Wakako from dissipating any benefits OPM had previously paid to Wakako.

Aubin’s petition for review to the Texas Supreme Court was denied by the court on November 13, 1997. That same day, the OPM rendered an initial decision concerning the distribution of Aubin’s federal benefits. The OPM determined Wakako was the proper beneficiary of Aubin’s benefits, not Yoshiko.

Following the supreme court’s denial of Aubin’s petition for review, the cause was remanded to the County Court at Law of Comal County to divide the marital estate between Aubin and Yoshiko. After several hearings, the County Court at Law entered an “Amended Final Judgment of Divorce and Judgment Granting Other Relief’ on June 19, 2003. The court once again divided the marital estate in accordance with the parties’ property settlement agreement. With respect to Aubin’s FEGLIA policy, lump sum death benefit, and survivorship annuity, the court made the following findings and awards:

10. Former Spouse Survivorship Annuity — The Court finds that a Civil Service Survivorship Annuity exists; it was an undisclosed asset; [Yoshiko] should be awarded 100% of the community interest therein; [Yoshiko] should be a former spouse beneficiary of such sur-vivorship annuity; as of July 26, 2002, the total- survivorship annuity interest is equal to approximately $277.00; and [Yoshiko’s] share is equal to 83.13% interest of the total survivorship entitlement (or $221.13 as of July 26, 2002) and [Aubin’s] “post divorce separate property” interest (or the widow’s interest) to be equal to 16.87% (or $44.87 as of July 26,2002).
IT IS THEREFORE ORDERED AND DECREED that [Yoshiko] ... is awarded a 83.13% interest in the surviv-orship annuity attributable to [Aubin’s] benefits under the FERS.
11. Civil Service Lump Sum Death Benefit — The Court finds that a Civil Service Lump Sum Death Benefit existed at the time of the parties’ Agreement; it was an undisclosed asset which was fraudulently concealed by [Aubin]; [Yoshiko] should be awarded 100% of the community interest therein; [Yoshi-ko] should be a former spouse beneficiary of such lump sum benefitf,] which as of July 26, 2002, the total lump sum death benefit is equal to approximately $67,707.97, including accrued interest thereon; [Yoshiko’s] share is equal to $40,227.20 (which includes accrued interest) of the total lump sum death benefit heretofore payable as a result of [Au-bin’s] death to his surviving spouse/widow, Wakako Chaisson.
IT IS THEREFORE ORDERED AND DECREED that [Yoshiko] be awarded judgment against [Aubin] and/or his estate in the sum of $40,227.40 for [Yoshiko’s] share of the Civil Service Lump Sum Death Benefit.
13. Civil Service Life Insurance Proceeds — The Court finds that a Civil Service Life Insurance policy existed at the time of the parties’ Agreement; it was not an undisclosed asset; it is not covered and/or treated by the residuary award to [Yoshiko] of all community property not otherwise specifically treated in the parties’ Agreement; [Yoshiko] should, however, be awarded 50% of the proceeds, it being found to be an undivided asset; the total payable upon [Au-bin’s] death being $50,000 and having been previously paid to Wakako Chais-son as the named beneficiary of said Civil Service Life Insurance Policy; the designation of Wakako Chaisson as the beneficiary of the Life Insurance policy was a breach of [Aubin’s] fiduciary duty to [Yoshiko] at the time of the parties’ Agreement, as well as at all times thereafter; and [Yoshiko’s] share is equal to $25,000, together with pre-judgment interest thereon as of July 26, 2002 in the sum of 12,700, of the proceeds of the Civil Service Life Insurance policy heretofore paid to [Aubin’s] widow, Wakako Chaisson.
IT IS THEREFORE ORDERED AND DECREED that [Yoshiko] be awarded judgment against [Aubin] and/or his estate in the sum of $37,000 as [Yoshiko’s] share of the Civil Service Life Insurance policy proceeds.

Aubin’s estate did not contest the “Amended Final Judgment of Divorce and Judgment Granting Other Relief’ entered by the trial court.

On August 12, 2003, Yoshiko filed an amended petition in her Bexar County proceeding against Wakako, Aubin’s Estate, and the OPM. Yoshiko’s amended petition requested the trial court to enforce the final divorce decree’s awards concerning the FEGLIA insurance policy, lump sum death benefit, and the survivor-ship annuity. Following a bench trial, the trial court entered a judgment in favor of Yoshiko. The trial court’s judgment enforced the awards set forth in the final divorce decree and imposed a constructive trust on all of the benefits and proceeds belonging to Yoshiko that were paid to Wakako.

Following the trial court’s judgment, Wakako brought this appeal. In five issues, Wakako claims the trial court erred by: (1) imposing a constructive trust on her deceased husband’s FEGLIA insurance proceeds because a state court is precluded under FEGLIA from imposing a constructive trust upon such proceeds; (2) enforcing the divorce decree concerning her deceased husband’s lump sum death benefit and survivorship annuity because the court lacked subject matter jurisdiction over such benefits; (3) awarding Yoshiko her ex-husband’s lump sum death benefit and survivorship annuity because she is not entitled to such benefits under federal law; (4) miscalculating the value of Yoshiko’s share of her ex-husband’s lump sum death benefit; and (5) awarding Yosh-iko attorney’s fees when there is no legal basis for such fees.

Discussion

In her first issue, Wakako claims that the trial court erred by imposing a constructive trust on the FEGLIA proceeds paid to her because state courts are precluded under FEGLIA from imposing a constructive trust upon such proceeds. Wakako relies on language contained within the version of FEGLIA in effect at the time of Aubin’s death (specifically sections 8705 and 8709), regulation 5 C.F.R. section 870.802(f), and case law which has applied the doctrine of preemption to FEGLIA. By contrast, it is Yoshiko’s position that there is nothing in the federal statutes or regulations preventing state courts from imposing a constructive trust on FEGLIA insurance policy proceeds. Yoshiko relies on case law from several jurisdictions refusing to apply the preemption doctrine to FEGLIA. Therefore, we must decide whether FEGLIA and the regulations promulgated under it were intended to preempt state action affecting FEGLIA insurance proceeds.

Preemption

Whether a particular federal law preempts state law depends on statutory intent. When construing federal statutes, we look first at the language of the entire statute to determine if the language in question has a plain and unambiguous meaning regarding the issue before us. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Our inquiry ends if the statutory language is unambiguous and “ ‘the statutory scheme is coherent and consistent.’ ” Id. If the relevant statutory language is ambiguous and if no agency responsible for implementing the statute has interpreted the language, then we seek guidance in the statutory structure, relevant legislative history, and congressional purposes in enacting the statute. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Where an agency responsible for implementing the statute has interpreted the statutory language at issue, we give deference to that agency’s reasonable interpretation of the relevant language. U.S. v. Mead Corp., 533 U.S. 218, 227-28, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).

A reviewing court reads the words of a statute in their context, taking note of their place in the overall statutory scheme. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). We must interpret the statute as a “ ‘symmetrical and coherent regulatory scheme’ ” and fit “ ‘all parts into an harmonious whole.’ ” Id. If possible, we must construe the language of the statute so that no word is rendered meaningless or insignificant. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). We review the trial court’s interpretation of applicable statutes de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989).

Although the specific preemption question before us has yet to be addressed by this court, it has been considered both by federal and state courts outside this jurisdiction. These courts, however, have reached disparate results on the issue. Numerous federal courts have held that, where state laws conflict with FEGLIA’s provisions, FEGLIA preempts state law. See Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 367 (8th Cir.1997) (“It has been consistently held in regard to FEGLIA that a divorce decree cannot operate as a waiver or restriction of an insured’s right to change the beneficiary when federal regulations conflict.”); Metropolitan Life Ins. Co. v. Sullivan, 96 F.3d 18, 20 (2d Cir.1996) (“To the extent that New York law allows for a change of beneficiaries by third parties, it conflicts with FEGLIA and is preempted.”); Metropolitan Life Ins. Co. v. Christ, 979 F.2d 575, 580 (7th Cir.1992) (“FEGLIA preempts the divorce decree and constructive trust remedy.”); Dean v. Johnson, 881 F.2d 948, 949 (10th Cir.1989) (“The state domestic relations court order ostensibly restricts the federal insured’s right to designate a beneficiary and thus cannot be valid under FEG-LIA.”); O’Neal v. Gonzalez, 839 F.2d 1437, 1440 (11th Cir.1988) (“Congress intended to establish ... an inflexible rule that the beneficiary designated in accordance with the statute would receive the policy proceeds, regardless of other documents or the equities in a particular case.”).

Most state courts, including one of our sister courts, have held to the contrary. See Roberts v. Roberts, 560 S.W.2d 488, 439-40 (Tex.Civ.App.-Beaumont 1977, writ refd n.r.e.) (holding FEGLIA does not preempt state court’s power to impose a constructive trust on the proceeds of a decedent’s insurance policy after proceeds have been paid to the designated beneficiary); see also Eonda v. Affinito, 427 Pa.Super. 317, 629 A.2d 119, 123 (1993) (concluding that a state court-imposed constructive trust does not contravene any of the federal interests underlying FEGLIA and thus is not preempted by FEGLIA); Kidd v. Pritzel, 821 S.W.2d 566, 575 (Mo.Ct.App.1991) (“We hold that the [equity] claims of the plaintiffs are not pre-empted by FEG-LIA.”); McCord v. Spradling, 830 So.2d 1188, 1203 (Miss.2002) (concluding FEG-LIA does not preempt state equitable actions); Sedarous v. Sedarous, 285 N.J.Super. 316, 666 A.2d 1362, 1363 (1995) (‘We hold that FEGLIA does not preempt the power of the state court to impose a constructive trust on the proceeds of insurance after the death of the obligor spouse.”); but see Metropolitan Life Ins. Co. v. Potter, 533 So.2d 589, 590 (Ala.1988) (holding FEGLIA preempts equitable state law claims). We find the reasoning of these cases persuasive because there is nothing in the federal statutes, regulations, or case law preventing state courts from imposing a constructive trust on FEGLIA insurance proceeds. Therefore, we join the majority of state courts that have addressed this issue and hold that FEGLIA does not preempt the power of state courts to impose a constructive trust on FEGLIA insurance proceeds.

FEGLIA

Wakako claims section 8705 of FEGLIA supports her preemption position. Section 8705 sets out precisely to whom FEGLIA insurance benefits are to be paid when a policyholder dies. This section provides:

(a) The amount of group life insurance and group accidental death insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim, to the person or persons surviving at the date of his death, in the following order of precedence:
First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in [the employing office or, in some cases, the OPM]. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.
Second, if there is no designated beneficiary, to the widow or widower of the employee.
Third, if none of the above, to the child or children of the employee and descendants of deceased children by representation.
Fourth, if none of the above, to the parents of the employees or the survivor of them.
Fifth, if none of the above, to the duly appointed executor or administrator of the estate of the employee.
Sixth, if none of the above, to other next of kin of the employee entitled under the laws of the domicile of the employee at the date of his death.

5 U.S.C. § 8705(a). According to Wakako, Congress would not have included this provision unless it intended for section 8705 to pre-empt state law claims. We are unpersuaded by Wakako’s argument because the sole purpose of section 8705 has always been to provide for the speedy and economic settlement of insurance claims. See Kidd, 821 S.W.2d at 569-70 (examining legislative history and the subsequent amendments to the statute and concluding purpose of section 8705 is to provide a quick and economic settlement of insurance claims). The purpose of section 8705 is not thwarted by imposition of a constructive trust after the proceeds have been paid in accordance with the statute.

We are likewise unpersuaded by Waka-ko’s argument that the rights conferred on her by section 8705 are rendered meaningless if she, as Aubin’s designated beneficiary, is deprived of the FEGLIA insurance proceeds through equitable means. As the court noted in Kidd v. Pritzel:

[Section] 8705 serves a valuable and worthwhile purpose by keeping the OPM and the insurance company out of legal entanglements. It fulfills the congressional intention by reducing their administrative and legal hassles. Regardless of what claims are brought to recover the proceeds once they are paid out to the designated beneficiary, the purpose of § 8705 has been served. Neither the insurance carrier nor the government can be burdened by participation in a state judicial proceeding to recover the proceeds. Nor will they be saddled with the unpleasant and cumbersome task of interpreting state statutes, divorce decrees, property settlement agreements or wills. Under § 8705 the insurer may simply pay the policy proceeds quickly and directly to the named beneficiary and be done with it. If the insured fails to designate a beneficiary, the statute provides direction to determine the person to pay. This does not bar equitable claims and equitable claims do not render § 8705 meaningless.

Id. at 572 (citations omitted).

Another FEGLIA provision Wakako cites in favor of her preemption contention is section 8709(d). Section 8709(d) provides:

The provisions of any contract under [FEGLIA] which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State or political subdivision thereof, or any regulation issued thereunder, which relates to group life insurance to the extent that the law or regulation is inconsistent with the contractual provisions.

5 U.S.C. § 8709(d)(1). Wakako claims this section expressly precludes state imposition of a constructive trust on FEGLIA proceeds after their payment to a named beneficiary.

Once again, we are unpersuaded by Wakako’s contention. The text of section 8709 reveals that it is only concerned with conflicts between state regulation of group life insurance programs and the express contractual provisions contained in FEG-LIA policies. Kidd, 821 S.W.2d at 572-73. Nothing in the text of section 8709 suggests that it is concerned with state law claims brought once the proceeds of a FEGLIA policy are paid out. Id. The case at bar relates to the invocation of a constructive trust to remedy a failure to comply with the terms of a state court divorce decree. None of the issues in this case specifically involves state laws or regulations concerning “group life insurance.” See Sedarous, 666 A.2d at 1366; Kidd, 821 S.W.2d at 572-73. Because Wakako has misinterpreted the scope of section 8709(d), we reject her contention that this section expressly precludes state imposition of a constructive trust in this instance.

Wakako also refers to 5 C.F.R. section 870.802(f), formerly 5 C.F.R. section 870.902(e), in support of her preemption contention. This regulation provides that a change in beneficiary may be made at any time without the knowledge or consent of the previous beneficiary and this right cannot be waived or restricted. 5 C.F.R. § 870.802(f). Section 870.802(f) was promulgated to compliment section 8705. Kidd, 821 S.W.2d at 573. We therefore read section 870.802(f) “in harmony with the purpose of FEGLIA and with state law claims brought by parties rightfully entitled to a FEGLIA policy’s proceeds.” Id. While section 870.802(f) compliments the Congressional intent of section 8705 (to alleviate administrative hassles and expedite the payment of claims), it does not pre-empt equitable state law claims. Id.

Lastly, Wakako claims the Supreme Court’s decision in Ridgway v. Ridgway, supports the conclusion that FEGLIA preempts all state laws and equitable remedies. 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981). In Ridgway, the Supreme Court considered the preemptive effect of the Serviceman’s Group Life Insurance Act (“SGLIA”). Id. at 50, 102 S.Ct. 49. There, as part of the parties’ divorce decree, the husband was ordered to maintain life insurance policies on his life for the benefit of his children. Id. at 48, 102 S.Ct. 49. One of the policies the husband was to maintain was a SGLIA policy, which designated his ex-wife as beneficiary. Id. Less than four months after the parties’ divorce, the husband remarried and changed his SGLIA policy’s beneficiary to one directing that its proceeds be paid in accordance with SGLIA’s order of precedence, which required the policy proceeds be paid to the husband’s widow at the time of his death. Id. at 48-49, 102 S.Ct. 49.

After the husband died, the husband’s widow and ex-wife filed claims for the SGLIA proceeds. Id. at 49, 102 S.Ct. 49. The ex-wife based her claim on the divorce decree while the widow’s claim rested on the SGLIA beneficiary designation and her status as the husband’s widow. Id. The ex-wife subsequently filed suit to recover the SGLIA proceeds. Id. The lower court rejected the ex-wife’s argument that the court should impose a constructive trust, for the children’s benefit, on any policy proceeds paid to the widow. Id. The appellate court later reversed the lower court’s decision and remanded the cause to the lower court to impose a constructive trust on the SGLIA policy proceeds. Id. at 50, 102 S.Ct. 49. The United States Supreme Court reversed the appellate court’s decision. Id. at 63, 102 S.Ct. 49.

Ridgway was decided on two points. First, the court determined that the order of precedence included in SGLIA for the payment of benefits and the underlying regulations conferred a right on the husband to designate his policy beneficiary. Id. at 55-57, 102 S.Ct. 49. Second, and most importantly, the Supreme Court determined that the imposition of a constructive trust upon the husband’s insurance proceeds was inconsistent with SGLIA’s anti-attachment provision, which provided that SGLIA policy proceeds were exempt from creditors and “any ‘attachment, levy, or seizure by or under any legal or equitable process whatever,’ whether accomplished ‘either before or after receipt by the beneficiary.’ ” Id. at 60-61, 102 S.Ct. 49. The court stated that any division of the husband’s SGLIA policy proceeds by way of a court-imposed constructive trust would operate as a forbidden “seizure” of those proceeds. Id. at 60, 102 S.Ct. 49. Thus, based on the “strong language of the anti-attachment provision” contained in SGLIA, the Court concluded Congress did not intend to exempt claims arising from property settlement agreements. Id. at 61, 102 S.Ct. 49.

While the facts of Ridgway appear similar to those in the case at bar, we do not believe this case controls the preemption question with respect to FEGLIA because SGLIA and FEGLIA are not cognate enactments. Sedarous, 666 A.2d at 1365. First, FEGLIA is not attended by .the exigency that motivated SGLIA. Id. Congress enacted SGLIA to provide military personnel in combat zones during the Vietnam war with life insurance coverage unavailable to them in the private market. Eonda, 629 A.2d at 121. By contrast, when FEGLIA was first presented, President Eisenhower stated that the act had two main purposes: (1) it allowed federal employees to “ ‘carry out their responsibilities to their families’ and (2) “it made available group life insurance, which was an ‘essential element in the development of a comprehensive personnel program that applies to Government service the best practices of progressive, private employers.’ ” Kidd, 821 S.W.2d at 568.

Second, SGLIA includes an anti-attachment provision while FEGLIA does not. Eonda, 629 A.2d at 122. Although there are many similar provisions in FEGLIA and SGLIA, the omission of an anti-attachment clause supports a conclusion that nothing in FEGLIA dictates the preemption of state law. Kidd, 821 S.W.2d at 571.

If Congress had desired to totally preempt all state law claims it would have included an anti-attachment provision to FEGLIA. Ridgway expressly stated that if Congress chose to avoid the result in that case, it could do so by enacting legislation which did not include an anti-attachment provision. That is precisely what Congress did when it enacted FEGLIA.

Id. (citations omitted). Consequently, we are not persuaded that Ridgway requires a preemption result in this case.

The Supreme Court has consistently recognized that “ ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” Rose v. Rose, 481 U.S. 619, 625, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987). “There is a higher standard for the establishment of federal pre-emption in the area of domestic relations.” Kidd, 821 S.W.2d at 571. The state law “ ‘must do “major-damage” to “clear and substantial” federal interests’ ” for the state law governing domestic relations to be overridden. Rose, 481 U.S. at 625, 107 S.Ct. 2029. In light of the foregoing, we cannot say that federal law precludes the courts of this state from imposing a constructive trust on Aubin’s FEGLIA insurance proceeds. Wakako’s first issue is therefore overruled.

Federal Employees’ Retirement System Lump Sum Death Benefit & Survivorship Annuity

In her second issue, Wakako claims the trial court lacked subject matter jurisdiction to enforce the divorce decree with respect to Aubin’s lump sum death benefit and survivorship annuity because Congress granted the OPM exclusive authority over these benefits. While Congress charged the OPM with making the benefits determinations concerning federal civilian employees, see 5 U.S.C. § 8461(d), it also mandated that the OPM avoid resolving disagreements between parties concerning the validity or the provisions of court orders. 5 C.F.R. § 838.101(a). Congress provided that jurisdiction over such disagreements rests with the courts.

Here, the underlying proceeding arises from a disagreement concerning the provisions of Aubin and Yoshiko’s divorce decree. As stated in section 838.101(a), the OPM “performs purely ministerial actions” and any “[disagreement ... concerning the validity or the provisions of any court order must be resolved by the court.” See id. § 838.101(a)(2). Because section 838.101(a) expressly authorizes state courts to resolve disagreements like the one in question, we cannot say the trial court lacked subject matter jurisdiction in this instance. See id. Wakako’s second issue is therefore overruled.

In her third issue, Wakako argues that even if the court had subject matter jurisdiction, she is entitled to the entire lump sum death benefit and survivorship annuity under federal law. However, we need not reach the merits of Wakako’s contention because the issue of whether Wakako is entitled to 100% of these benefits under federal law was not an issue before the trial court; the trial court was limited to addressing the disagreement concerning the validity or the provisions of the underlying divorce decree. See id. Consequently, Wakako’s third issue is overruled.

Wakako claims in her fourth issue that the trial court miscalculated the value of Yoshiko’s share of Aubin’s lump sum death benefit. Wakako claims the trial court erroneously based Yoshiko’s share on a death benefit of $67,707.97, when it should have based it on a death benefit value of only $44,925.30. According to Wakako, had the trial court relied on the actual value of Aubin’s lump sum death benefit, it would have awarded Yoshiko $26,691.33 instead of $40,227.20.

We are unpersuaded by Wakako’s argument because it fails to take into consideration the trial court’s finding that the parties were entitled to interest on the original value of Aubin’s lump sum death benefit. With interest, the trial court calculated Aubin’s death benefit to be worth $67, 707.97. Because the parties were entitled to interest on Aubin’s death benefit, we cannot say the trial court miscalculated the value of Yoshiko’s share of Aubin’s lump sum death benefit. Wakako’s fourth issue is overruled.

Attorney’s Fees

In her final issue, Wakako contends the trial court had no legal basis to award Yoshiko attorney’s fees. Section 9.014 of the Texas Family Code, however, authorizes a trial court to award reasonable attorney’s fees in a proceeding to enforce a property division under a divorce decree. Tex. Fam.Code Ann. § 9.014 (Vernon 1998). Here, Yoshiko’s amended petition in her Bexar County proceeding against Wakako, Aubin’s Estate, and the OPM specifically sought to enforce the final divorce decree entered by the Comal County Court at Law on June 19, 2003. Thus, because Yoshiko’s suit sought to enforce a property division under a divorce decree, the trial court had a legal basis to award Yoshiko attorney’s fees under Chapter 9 of the Family Code.

Wakako further argues that Yoshiko is not entitled to attorney’s fees under section 9.014 of the Family Code because the suit to enforce the divorce decree was not filed in the Comal County Court at Law, the court which entered Yoshiko and Au-bin’s final divorce decree. See id. §§ 9.001-.002 (Vernon 1998). According to Wakako, a party affected by a decree of divorce providing for a division of property may recover attorney’s fees in an enforcement suit only if she files suit in the same court that rendered the divorce decree. We find nothing in Chapter 9 of the Family Code to support this proposition. See id. § 9.001, et. seq. Absent authority indicating that the court rendering the divorce decree is the only court that can award attorney’s fees in an enforcement action, we must overrule Wakako’s fifth issue.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court.

        . The OPM is the body that administers the federal employee benefits at issue in this case.

      . The trial court granted the relief requested by Yoshiko in her original petition on October 23, 1997, the same day the petition was filed.

      . Yoshiko nonsuited OPM from the Bexar County cause of action on December 19, 2003.

      . As a preliminary matter, Yoshiko and Waka-ko dispute whether the present appeal constitutes an impermissible collateral attack on the judgment entered by the Comal County Court at Law in the divorce action between Yoshiko and Aubin. After reviewing the parties’ contentions, we hold that Wakako’s present appeal does not constitute an impermissible attack on the Comal County judgment. This appeal concerns Wakako’s right to benefits created by her husband’s death, an issue not litigated in the Comal County divorce action. Thus, Wakako’s appeal is not an attack on the Comal County divorce decree.

      .FEGLIA was amended by Congress shortly after Aubin’s death. There is no dispute that Aubin complied with the requirements of former section 8705 and validly designated Wak-ako as the beneficiary of his life insurance policy.

      . FMC Corp. v. Holliday, 498 U.S. 52, 56, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). Preemption of state law occurs in three different ways. First, Congress may define expressly to what extent a federal statute preempts state law. English v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Second, preemption may be inferred when a pervasive scheme of federal regulation makes it reasonable to infer Congress intended exclusive federal regulation of the area. Id. at 79, 110 S.Ct. 2270. Finally, it occurs where there is a direct conflict between the terms of the federal and state law. Id.

      . Final decisions of the OPM are appealable to the Merit Systems Protection Board ("MSPB”). 5 U.S.C. § 8461(e)(1). Appeal from the final decisions of the MSPB is to the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703; 28 U.S.C. § 1295(a)(9).

      . Id. Section 838.101(a) provides:

        (1) This part regulates the Office of Personnel Management's handling of court orders affecting the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS), both of which are administered by the Office of Personnel Management (OPM). Generally, OPM must comply with court orders, decrees, or court-approved property settlement agreements in connection with divorces, annulments of marriage, or legal separations of employees, Members, or retirees that award a portion of the former employee’s or Member’s retirement benefits or a survivor annuity to a former spouse.
      (2) In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court’s intent by researching individual State laws. In carrying out the court’s instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court.
      5 C.F.R. § 838.101(a).


author: SANDEE BRYAN MARION, Justice.

text:
    In re David CRUDUP.
    No. 04-05-00297-CV.
    Court of Appeals of Texas, San Antonio.
    July 20, 2005.

      Robert W. Wilson, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, for appellant.
    Clarkson F. Brown, Asst. Dist. Atty., Thomas W. Gendry, Gendry & Sprague, P.C., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

Relator, David Crudup, brings this mandamus action to vacate the order of the trial court granting the Bexar County District Attorney’s Office’s Motion to Quash Trial Subpoenas and For Protective Order. We conditionally grant the petition for writ of mandamus.

BACKGROUND

Relator sued the real parties in interest, Cynthia Blank and her son, Travis Blank, (“the Blanks”) for malicious prosecution following the dismissal of criminal charges brought against relator by the Bexar County District Attorney’s Office (“DA”). The criminal charges were filed by the DA after Cynthia Blank filed a criminal complaint alleging relator threatened to kill her son. According to relator, during the course of the criminal investigation, Cynthia had numerous conversations with the DA’s Office regarding the ease. In preparation for the civil trial, relator issued subpoenas to Sylvia Cavazos (assistant DA), A Larry (DA investigator), and Robert McCabe (former assistant DA). The DA’s Office moved to quash the subpoenas, arguing its files were exempt from discovery as privileged and objecting to any requirement that the representatives of the DA’s Office provide testimony in the lawsuit. Following a hearing, the trial court granted the motion to quash. Relator filed a petition for writ of mandamus, asking this court to direct the trial court to issue the subpoenas.

ANALYSIS

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion and there is no adequate remedy by appeal. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998). A party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error. In re Fulgium, 150 S.W.3d 252, 253-54 (Tex.App.— Texarkana 2004, no pet.). An appeal will not be an adequate remedy where the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error. Walker v. Packer, 827 S.W.2d 833, 843 (Tex.1992) (holding that “a denial of discovery going to the heart of a party’s ease may render the appellate remedy inadequate.”).

To prevail on his malicious prosecution claim, relator must establish the following: (1) a criminal prosecution was commenced against the plaintiff; (2) the prosecution was initiated or procured by the defendant; (3) the prosecution terminated in favor of the plaintiff; (4) the plaintiff was innocent; (5) the defendant lacked probable cause to instigate the prosecution; (6) the defendant acted with malice in bringing about the prosecution; and (7) the plaintiff suffered damages as a result of the prosecution. Thrift v. Hubbard, 974 S.W.2d 70, 77 (Tex.App. — San Antonio 1998, pet. denied) (district attorney testified at trial). The Texas Supreme Court has held as follows:

In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official’s decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.

Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 294 (Tex.1994) (emphasis added) (citation omitted). Thus, “a person who knowingly provides false information to the grand jury or a law enforcement official who has the discretion to decide whether to prosecute a criminal violation cannot be said to have caused the prosecution if the information was immaterial to the decision to prosecute.” King v. Graham, 126 S.W.3d 75, 78 (Tex.2003). “If the decision to prosecute would have been made with or without the false information, the complainant did not cause the prosecution by supplying false information. Therefore, to recover for malicious prosecution when the decision to prosecute is within another’s discretion, the plaintiff has the burden of proving that that decision would not have been made but for the false information supplied by the defendant.” Id. (emphasis added).

In his petition for writ of mandamus, relator asserts he has no adequate remedy at law because the trial court’s order vitiates or severely compromises his ability to present a viable claim at trial. Specifically, relator argues the protective order prevents him from presenting testimony from the DA’s Office to prove that it would not have filed the criminal charges “but for” the false information provided by the Blanks.

In King, the Supreme Court reversed a malicious prosecution claim in part because the plaintiffs “offered no evidence whatever — as by opinion from [District Attorney] Sutton, for example — that the decision to prosecute was based on any [false] information supplied by” the malicious prosecution defendant. King, 126 S.W.3d at 78. Here, because relator must establish that the decision by the Bexar County District Attorney’s Office to prosecute “would not have been made but for” any false information supplied by the Blanks, the trial court’s order severely compromises relator’s ability to present a viable claim. See e.g. Thrift, 974 S.W.2d at 78 (district attorney’s testimony in malicious prosecution case that he pursued his investigation based on false information provided by complainant in criminal case provided some evidence that criminal prosecution would not have occurred “but for” the information in the complaint).

The DA argues that its representatives should not be required to testify because “the mental processes of district attorneys are privileged by the work-product rule.” The “work-product” privilege encompasses “mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives, including the party’s attorneys.... ” See Tex.R. Crv. P. 192.5(b)(1). If a party asserts information is protected from disclosure by a privilege, it is that party’s burden to make a prima facie showing of the privilege. Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex.1996) (orig.proceeding). To do this, the resisting party must plead the specific privilege, produce evidence to support it by affidavit or testimony, and if the trial court determines it is necessary, produce the information for in camera inspection. Marathon Oil Co. v. Moye, 893 S.W.2d 585, 589-90 (Tex.App.— Dallas 1994, orig. proceeding).

In its response to the petition for writ of mandamus, the DA acknowledges it has already provided the requested documents. Therefore, the DA’s Office has waived any privilege related to document production and the only issue is whether the DA has established that the testimony of its representatives is privileged. We conclude it has not. At trial, relator must establish whether the information supplied to the DA’s Office was material to the DA’s decision to prosecute. See King, 126 S.W.3d at 78. Under these circumstances the work-product privilege does not operate as a blanket privilege covering all decisions made by the DA’s Office. See King, 126 S.W.3d at 78 (considering plaintiffs failure to offer any evidence, such as the district attorney’s opinion that the decision to prosecute was based on any false information supplied by defendant). For these reasons, we conclude the DA’s Office has failed to meet its burden of showing any basis to quash the subpoenas. Accordingly, the trial court erred in granting the motion to quash and protective order.

CONCLUSION

Accordingly, the writ is CONDITIONALLY GRANTED. Tex.R.Afp. P. 52.8(c). The Honorable Karen Pozza is ORDERED to withdraw her April 14, 2005 Order granting the District Attorney’s Office’s Motion to Quash and For Protective Order. If she does not do so within ten days of this order, we will issue the writ.

Ml costs are assessed against the party who incurred them.

      . The DA’s Office charged relator with making terroristic threats, a Class A misdemean- or.