author: SUSAN LARSEN, Justice.

text:
    COMMUNITY INITIATIVES, INC., Appellant, v. CHASE BANK OF TEXAS, National Association; Al Martinez-Fonts; Bank of America, National Association; Dave Graham; Norwest Bank El Paso, National Association; Wells Fargo & Company; and Nathan E. Christian, Appellees.
    No. 08-02-00527-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 23, 2004.

      Michael R. Wyatt, El Paso, for Appellant.
    Jim Curtis, Kemp Smith LLP, H. Keith Myers, Mounce, Green, Myers, Safi & Ga-latzan, El Paso, Temple Ingram, Barron & Newburger, P.C., Austin, for Appellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

SUSAN LARSEN, Justice.

Community Initiatives, Inc. brings this appeal from a no-evidence summary judgment. We affirm.

Factual and ProcedüRal Background

In 1998, Raymond Caballero formed Count Me In, Inc. (CMI) with the purpose of increasing voter participation. CMI later changed its name to Community Initiatives, Inc. (Cl). Also in 1998, Mary Hull Caballero and Texas Senator Eliot Shap-leigh conceived of an organization called Community Scholars (CS) that would enlist students to research public policy issues. After CMI changed its name to Cl, Cl became an umbrella organization that encompassed both the CMI program and the CS program.

The CS program was well funded; the CMI program was not. Therefore, a Cl board member, Richard Fleager, began discussions with Wesley Jurey, the president of the Greater El Paso Chamber of Commerce, attempting to persuade the Chamber to assist in fund-raising for CMI. Although the parties disagree about the nature and extent of the commitment the Chamber made to CMI, it is undisputed that on June 7, 1999, the Chamber sent a letter and pledge form to its members, soliciting donations for CMI. The pledge form stated that CMI was a project of Cl and requested that contributions be remitted to CI.

On June 15 and June 18, 1999, CS students interviewed representatives of Wells Fargo and Chase Bank regarding their banking practices. On June 23, 1999, a CS student sent written questions to Bank of America. The students’ questions were designed to reveal how the banks’ business, charitable, and lending practices affected the local economy. Years earlier, Raymond Caballero had asked similar questions of local banks and had encouraged local institutions to consider the banks’ answers in deciding where to make their deposits.

A1 Martinez-Fonts was the chairman and CEO of Chase. On or about June 18, 1999, having received the Chamber’s fund-raising letter and having been advised of the CS students’ questions, Martinez-Fonts called Jurey. Noting that the pledge form requested that contributions be remitted to Cl, Martinez-Fonts asked Jurey about the connection among Cl, CMI, and CS. He told Jurey that he would be inclined to contribute to CMI, but he did not want his contribution to go to CS.

Jurey called Fleager to get the answers to Martinez-Fonts’s questions. According to Fleager, Jurey also asked him whether Cl was investigating banks. Fleager was not sure how to respond to the funding questions. He knew that funds donated to CMI were kept separate from funds donated to, CS, but he also knew that there was an outstanding loan from CS to CMI. It was therefore possible that funds donated to CMI could end up with CS if CMI used the funds to repay the loan.

Fleager does not recall whether he informed Jurey that CMI and CS funds were kept separate. According to Jurey, Fleager called him back the next day and told him that any funds donated to CMI would be used only for CMI, but that the CS and CMI accounts were not segregated. Jurey conveyed this information to Martinez-Fonts. Jurey also called David Graham to advise him of his conversations with Fleager and Martinez-Fonts. Graham was the Chamber’s chairman of the board and also president of the El Paso branch of Bank of America. Graham suggested that they convene a meeting of the Chamber’s personnel committee to discuss the issues raised by these conversations.

In the meantime, Martinez-Fonts spoke with Graham and Nathan Christian about the questions being asked by the CS students. Christian was the regional manager of Wells Fargo. Martinez-Fonts also discussed the CS students with Rick Ybar-ra, a Chase employee who also served on Cl’s board. Based on Martinez-Fonts’s notes dated June 22, 1999, it appears that Ybarra told Martinez-Fonts that CMI and CS “keep books separate by internal ledgers.”

Fleager discussed the questions posed by Jurey with Raymond Caballero. Upon learning that CS was researching the banks’ practices, Fleager became concerned that the research could hamper Cl’s ability to raise money for CMI from the banks. Fleager then called Stuart Schwartz, Cl’s president. According to Schwartz, Fleager advised him that there was a “problem” with the Chamber’s fund-raising efforts. Fleager and Schwartz thought the problem could be solved by separating CS and CMI. Fleager discussed the possible separation with Jurey, who suggested that CMI could become part of the Chamber Foundation. On or about June 22, 1999, Fleager, Schwartz, and Ju-rey met to discuss the specifics of moving CMI to the Chamber Foundation.

That afternoon, the Chamber’s personnel committee met. The personnel committee included Graham, as chairman of the board, and Christian, as immediate past chairman of the board. Fleager and Martinez-Fonts, who was chairman of the Chamber Foundation, were also present. The plan to move CMI to the Chamber Foundation was discussed at the meeting. According to Fleager, Martinez-Fonts stated that his concern was that he did not want to make a donation to CMI and later find out that the money actually went to CS. Fleager assured him that CMI and CS kept their funds separate, but he also mentioned the loan from CS to CMI.

Also at the meeting, Jurey presented the committee with two proposed letters, dated June 22, 1999. One of the letters was drafted in contemplation of CMI becoming part of the Chamber Foundation and advised Chamber members of that fact. The other letter advised members that the Chamber had just learned that CMI and CS were both programs of Cl and that CS had been “investigating area banks.” The letter stated, “It is also our understanding that funds have been ‘loaned’ between the programs,” that “we cannot assure you that your funds will be used exclusively for ‘Count Me In,’ and that the Chamber has withdrawn its endorsement of the program....” Jurey faxed a copy of this letter to Martinez-Fonts before the meeting. Martinez-Fonts testified that he told Jurey he did not think the Chamber should send the letter. It is undisputed that neither letter was sent to Chamber members. After the personnel committee meeting, the Chamber took no more action regarding Cl, CMI, or CS. The Chamber did not withdraw the letter that it had already sent, but it also did not assist CMI with any more fund-raising efforts.

The day after the personnel committee meeting, Cl’s board held an emergency meeting and voted to transfer CMI to the Chamber Foundation. Soon afterwards, several members of the board, including Schwartz and Fleager, resigned. Schwartz and Fleager resigned because Raymond Caballero made it clear that he did not approve of the board’s decision to transfer CMI to the Chamber Foundation. A week later, the remaining board members reversed their previous votes and decided not to transfer CMI to the Chamber Foundation.

In 2000, CS became a separate nonprofit corporation. CMI remains with Cl, but it has no staff and only a skeletal board of directors.

Cl brought this suit, asserting several causes of action against Chase, Wells Fargo, Bank of America, Martinez-Fonts, Christian, and Graham. The defendants all filed no-evidence summary judgment motions, which were granted by the trial court.

Appropriateness op No-Evidence Summary Judgment

In its third issue, Cl argues that a no-evidence summary judgment was not appropriate under the circumstances of this case because a sufficient time for discovery had not passed and because the Appellees’ motions failed to specify which elements of Cl’s claims were lacking.

No-evidence summary judgments are authorized by Rule 166a(i) of the Texas Rules of Civil Procedure, which provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

No Abuse of Discretion

Assuming without deciding that Cl did not waive its complaint on inadequate time for discovery, we nevertheless find no grounds for disturbing the trial court’s conclusion on this issue. We review the trial court’s decision for abuse of discretion. Gourrier v. Joe Myers Motors, Inc., 115 S.W.3d 570, 573 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Whether there has been an adequate time for discovery is case specific. Tempay, Inc. v. TNT Concrete & Const., Inc., 37 S.W.3d 517, 520-22 (Tex.App.-Austin 2001, pet. denied). To determine whether an adequate time has elapsed, courts consider the following non-exclusive factors: (1) the nature of the suit; (2) the nature of the evidence necessary to controvert the summary judgment motion; (3) the length of time the case has been active in the trial court; (4) the length of time the motion has been on file; (5) the amount of discovery that has already taken place; (6) whether the movant has requested stricter discovery deadlines; and (7) whether the discovery deadlines are specific or vague. Id. at 522 & n. 8. Rule 166a(i) does not require that discovery be completed before a no-evidence motion is filed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). But the rule contemplates that the nonmovant will have a sufficient opportunity to conduct discovery. Tempay, 37 S.W.3d at 521. Therefore, a party should not be able to abuse the discovery process by withholding key evidence and then use the resulting lack of evidence to obtain a summary judgment. Id.; Specialty Retailers, 29 S.W.3d at 145.

This suit was commenced in October 1999. After being removed to federal court, it was remanded back to state court in March 2000. The Appellees filed motions to stay the state court proceedings pending their appeal of the remand order. The record does not contain a ruling on these motions, but it appears that discovery did not commence in earnest until March 2001. That month, the trial court issued a scheduling order that required all discovery requests and deposition notices' to be served by November 1, 2001. The summary judgment deadline was set for November 2, 2001. Trial was set for January 28, 2002. On the Appellees’ motion, the scheduling order and trial setting were vacated in October 2001. The next month, the court set a trial date of September 30, 2002. The Appellees filed their motions for summary judgment in July 2002, and their supplemental motions, addressing the business disparagement claim, in August 2002. The court heard the original summary judgment motions on August 15, 2002, and the supplemental motions on September 12, 2002.

Cl argues that “procedural wrangling” consumed most of its time and that it therefore did not have a sufficient opportunity to conduct discovery. The record reflects that both sides filed motions to compel certain discovery and that the parties took some discovery disputes to the trial court. Cl points out that its deposition of Graham had to be stopped for purposes of filing a motion to compel because Graham refused to answer certain questions. Cl acknowledges, however, that Graham’s deposition was completed before the summary judgment motions were filed.

In addition to deposing Graham, Cl also deposed Christian and Martinez-Fonts, as well as Fleager, Jurey, and Schwartz. The Appellees deposed the Caballeros. All of these depositions, along with exhibits and other documents, were attached to Cl’s response to the summary judgment motions. Although Cl asserted in its summary judgment response that it had been unable to depose two witnesses, Cl has not established that it exercised diligence in obtaining the depositions. Cl noticed the deposition of one of these witnesses, Rick Ybarra, along with five other witnesses, for April 14, 2000. Cl eventually deposed the other five witnesses, and the record does not reflect why Ybarra was never deposed. As for the other witness mentioned in Cl’s response, Gayle Ray, Cl does not cite anything in the record to show that it ever noticed her deposition.

In reference to the factors listed above, the nature of this suit and the summary judgment motions required a fact-intensive response. The motions were only on file for a minimal length of time. There is no indication that the Appellees had requested stricter discovery deadlines; instead, they obtained an order vacating the deadlines that had been set. The court’s last order setting a trial date stated that discovery was to be completed pursuant to a “level 2” discovery control plan, although this suit was filed under “level 3.” See Tex.R. Civ. P. 190.1-190.4. All of these factors suggest that an adequate time for discovery had not passed.

However, this case had been on file for almost three years when the summary judgment was granted, and discovery had been actively pursued for at least a year and a half, with a significant amount of discovery having been obtained. The summary judgment motions were filed just two months before the trial setting. There is nothing in the record to show that the Appellees were able to withhold key evidence. And, as noted above, Cl has not established that the evidence it had not obtained would be material. Under these circumstances, the trial court did not abuse its discretion in concluding that an adequate time for discovery had passed.

The Requirement of Speciñcity

Cl argues that the trial court erred in granting summary judgment because the defendants’ motions failed to specify the elements as to which there is no evidence. Cl contends that because the motions asserted that there was no evidence to support each element of every one of its claims, the motions were in practical effect eonclusory and general no-evidence challenges.

Rule 166a(i) requires the movant to “state the elements as to which there is no evidence.” The comment to the rule states, “The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize eonclusory motions or general no-evidence challenges to an opponent’s case.”

The purpose of the specificity requirement is to provide the opposing party with fair notice of the matters on which it must produce some evidence. See Dodd v. City of Beverly Hills, 78 S.W.3d 509, 513 (Tex.App.-Waco 2002, pet. denied). The motion does not have to include a specific attack on the evidentiary components that make up an element of a claim. Dominguez v. Payne, 112 S.W.3d 866, 868 (Tex. App.-Corpus Christi 2003, no pet.); In re Mohawk Rubber Co., 982 S.W.2d 494, 497-98 (Tex.App.-Texarkana 1998, orig. proceeding). Instead, it must only “state the elements as to which there is no evidence.” Tex.R. Civ. P. 166a(i); compare Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 255 (Tex.App.-Corpus Christi 2001, pet. denied) (holding that motion was insufficient because it merely challenged “other elements”), Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n. 2 (Tex.App.-Houston [1st Disk] 1999, no pet.) (holding that motion was insufficient because it did not specifically allege that the plaintiff lacked evidence or challenge a particular element of the plaintiffs claim), and Abraham v. Ryland Mortgage Co., 995 S.W.2d 890, 892 (Tex.App.-El Paso 1999, no pet.) (holding that motion was insufficient because it made no reference to any element of the plaintiffs claim or any reference to any specific allegation in the plaintiffs petition), with Baker v. Gregg County, 33 S.W.3d 72, 77 (Tex.App.-Texarkana 2000, no pet.) (holding that motion that listed the plaintiffs claims and stated the elements that were lacking in each claim was sufficient), and Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 623 (Tex.App.-Eastland 2000, pet. denied) (holding that motion that listed the elements of negligence and stated that plaintiffs “cannot provide evidence to support any of the aforementioned elements” was sufficient). Moreover, nothing in rule 166a(i) or its comment forbids a defendant from challenging every element of the plaintiffs claims, as long as each element is distinctly and explicitly challenged. See Timothy Patton, SummaRY Judgments in Texas, Practice, Procedure and Review § 5.03[2][b] (2003); see also Gourrier, 115 S.W.3d at 574 (challenge to forty-one elements or combinations of elements).

All the summary judgment motions in this case meet the specificity requirement. The motions list the elements of each cause of action and specifically identify the elements as to which there is no evidence. Additionally, the motions are supported by citations to applicable cases and statutes.

Cl argues that the motions improperly required it to marshal its evidence. See Tex.R. Civ. P. 166a(i) cmt. (stating that the nonmovant is not required to marshal its proof). We disagree. To marshal one’s evidence is to arrange all of the evidence in the order that it will be presented at trial. Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 493-94 (Tex.App.-El Paso 1999, pet. denied). All Cl had to do to defeat the summary judgment motions was to point out some evidence that raises a fact issue on each of the challenged elements; it did not have to present all its evidence. in the order that it would be presented at trial.

Cl asserts that Chase and Wells Fargo attempted to comply with the specificity requirement in their reply briefs, but Cl did not have enough time to respond to the specific evidentiary challenges raised in the reply briefs because they were filed only one day before the summary judgment hearing. Cl argues that because these replies constitute the only proper motions for summary judgment, they should have been filed twenty-one days before the hearing. See Tex.R. Civ. P. 166a(c) (“[T]he motion ... shall be filed and served at least twenty-one days before the time specified for hearing.”).

The record does not reflect that Cl made this argument to the trial court. Therefore, it is not preserved. See Tex. R.App. P. 33.1(a)(1); see also Alaniz v. Hoyt, 105 S.W.3d 330, 339 (Tex.App.-Corpus Christi 2003, no pet.); Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex.App.-Houston [14th Dist.] 1989, no writ).

In any event, there is no deadline for filing a reply to a summary judgment response, and a reply may be filed up until the day of the hearing. See Alaniz, 105 S.W.3d at 339; Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 4 (Tex.App.San Antonio 2000, pet. denied); Wright v. Lewis, 777 S.W.2d 520, 522 (Tex.App.-Corpus Christi 1989, writ denied). We agree with Cl that a movant may not use a reply brief to meet the specificity requirement or to assert new grounds for summary judgment. See Callaghan, 53 S.W.3d at 4; see also Sams v. N.L. Indus., 735 S.W.2d 486, 487-88 (Tex.App.-Houston [1st Dist.] 1987, no writ) (holding that because a reply containing two additional grounds was essentially a new motion for summary judgment, the nonmovant was entitled to twenty-one days’ notice and a hearing before summary judgment could be granted on the new grounds). In this case, however, the reply briefs do not assert new grounds for summary judgment and, as we explained above, the motions for summary judgment satisfied the specificity requirement. The reply briefs merely reply to Cl’s summary judgment evidence and arguments. Cl’s third issue is overruled.

Exclusion of Summary Judgment Evidence

In its second issue, Cl argues that the trial court erred in sustaining the Appel-lees’ objections to its summary judgment evidence and in excluding essentially all of its evidence.

Waiver

A basic tenet of appellate procedure is that appellate courts do not generally consider complaints not raised in the trial court. See Tex.R.App. P. 33.1(a)(1). Therefore, to preserve error from a ruling that excludes evidence, the complaining party must inform the trial court of the purpose for which the evidence is offered and the reasons why the evidence is admissible. In re C.Q.T.M., 25 S.W.3d 730, 737 (Tex.App.-Waco 2000, pet. denied); Melendez v. Exxon Corp., 998 S.W.2d 266, 274 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Vandever v. Goettee, 678 S.W.2d 630, 635 (Tex.App.-Houston [14th Dist.] 1984, writ refd n.r.e.). When the record is silent as to what position the complaining party took at trial, it is impossible for a reviewing court to determine whether the trial court abused its discretion by excluding evidence. Estate of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 243 (Tex.App.-Houston [14th Dist.] 1995, writ denied).

Summary judgment procedure incorporates the tenet that a complaint must first be presented to the trial court: “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c). Accordingly, to preserve complaints regarding the exclusion of summary judgment evidence, the proponent must inform the trial court of the purposes for which the evidence was offered and the reasons why it was admissible. See Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex.App.-Dallas 1990, no writ) (holding that the appellant waived her argument that the trial court erred by sustaining the appellee’s objections to her summary judgment affidavit because she did not object in the trial court); see also Mangione v. Gov’t Personnel Mut. Life Ins. Co., No. 04-01-00655-CV, 2002 WL 1677457, at 4-*5 (Tex.App.-San Antonio July 24, 2002, pet. denied) (not designated for publication) (agreeing with Brooks).

Although Cl specifies in its appellate brief the purposes for which the evidence was offered and the reasons why it was admissible, the record does not reflect that Cl apprised the trial court of these arguments. Therefore, the arguments are not preserved.

Harmless Error

We review a trial court’s evi-dentiary rulings in a summary judgment case for abuse of discretion. Steinkamp v. Caremark, 3 S.W.3d 191, 194 (Tex.App.-El Paso 1999, pet. denied). A trial court’s decision to exclude summary judgment evidence will not result in reversal unless the appellant was harmed by the decision. See id. at 197. In other words, we cannot reverse unless the ruling probably caused the rendition of an improper judgment. Id.; Tex.R.App. P. 44.1(a)(1).

We have considered all the evidence cited by Cl in its brief, including the evidence that was excluded by the trial court. As explained below, we conclude that this evidence fails to raise a genuine issue of material fact regarding at least one element of each of Cl’s claims. Therefore, even if the propriety of the trial court’s evidentiary rulings had been preserved for review and even if those rulings were an abuse of discretion, the rulings were harmless and not reversible.

Cl’s second issue is overruled.

Review of the Summary Judgment Evidence

In its first issue, Cl argues that the trial court erred in granting summary judgment because there is more than a scintilla of evidence to support its claims for tor-tious interference with contract, tortious interference with prospective business relations, business disparagement, civil conspiracy, and exemplary damages.

Standard of Review

We apply a de novo standard of review to summary judgments. Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex.App.-El Paso 2001, pet. denied). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Id. at 904-05; Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.-El Paso 2000, no pet.). A no-evidence summary judgment is improper if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003); Steinkamp, 3 S.W.3d at 194. More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Forbes, 124 S.W.3d at 172; Steinkamp, 3 S.W.3d at 194. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes, 124 S.W.3d at 172; Steinkamp, 3 S.W.3d at 194. We view the evidence in the light most favorable to the nonmovant. Forbes, 124 S.W.3d at 172; Steinkamp, 3 S.W.3d at 194. When, as here, the trial court grants a summary judgment without specifying its reasons, we must affirm if any of the reasons advanced in the motion are meritorious. Wyatt, 33 S.W.3d at 30.

Tortious Interference With Contract

The elements of tortious interference with contract are: (1) the existence, of a contract subject to interference; (2) an act of interference that was willful and intentional; (3) the act was a proximate cause of the plaintiffs damages; and (4) actual damages or loss occurred. Juliette Fowler Homes, Inc. v. Welch Assocs., 793 S.W.2d 660, 664 (Tex.1990). The first element requires the existence of a valid contract. Id. Although an unenforceable contract may serve as the basis for a tor-tious interference claim, a void contract may not. Id. This Court has held that a contract that is not supported by consideration is void and therefore may not serve as the basis for a tortious interference claim. Hill v. Heritage Res., Inc., 964 S.W.2d 89, 115 (Tex.App.-El Paso 1997, pet. denied).

Cl asserts that the Appellees interfered with a contract between it and the Chamber under which the Chamber would assist Cl with fund-raising. In its summary judgment response, Cl did not direct the trial court to any evidence of consideration for the purported contract. This failure alone is sufficient to support the summary judgment on this cause of action. See Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex.App.-El Paso 2000, no pet.), overruled on other grounds by In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex.App.-El Paso 2003, no pet.); see also Tex.R. Civ. P. 166a(i) (“The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). In its appellate brief, Cl claims that in exchange for the Chamber’s promise to assist with fund-raising, “Cl agreed to use any funds received solely to support CMI, a commitment which benefitted the Chamber and its business members.”

Fleager had several meetings with Ju-rey to discuss whether the Chamber would assist Cl with fund-raising. The Chamber sent the fund-raising letter on June 7, 1999. On June 15,1999, more than a week after the letter had already been sent, Cl’s board passed a resolution providing that Cl would honor donors’ requests to designate that their donations be used for a particular purpose. Cl argues that these facts are circumstantial evidence creating an inference that the board resolution was consideration for the Chamber’s promise to assist Cl with fund-raising. We disagree.

Consideration is a bargained-for exchange of promises. Fed. Sign v. Tex. Southern Univ., 951 S.W.2d 401, 408 (Tex.1997), overruled on other grounds by Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991). It consists of benefits and detriments to the contracting parties. Fed. Sign, 951 S.W.2d at 409. The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Id.

Cl does not cite any evidence that the Chamber bargained for the board resolution or that the Chamber’s promise to assist in fund-raising induced Cl to pass the resolution. Although Jurey’s testimony indicates that the Chamber’s motive for helping Cl was to encourage El Pasoans to vote so the city would get more attention from the state and federal governments, his testimony does not mention the board resolution. In fact, his testimony indicates that he did not even know about the resolution, because he stated that Fleager told him the CMI and CS accounts were not segregated. The only testimony regarding the resolution came from Fleager. His testimony does not in any way link the resolution to the Chamber’s promise to assist in fund-raising. He also made clear that the resolution was not related to the Appellees’ inquiries about whether money donated to CMI might go to CS.

Although circumstantial evidence may be used to establish a fact, “we are not empowered to convert mere suspicion or surmise into some evidence.” Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). At most, the evidence cited by Cl would create only a surmise or a suspicion that the board resolution was consideration for the Chamber’s promise to assist in fund-raising. See Forbes, 124 S.W.3d at 172; Steinkamp, 3 S.W.3d at 194. As the supreme court has stated, “[S]ome suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.” Browning-Ferris, 865 S.W.2d at 927.

We conclude that Cl failed to point to more than a scintilla of evidence that a contract subject to interference existed. Accordingly, the trial court did not err in granting summary judgment on Cl’s claim for tortious interference with contract.

Tortious Interference with Prospective Business Relations

The elements of tortious interference with prospective business relations are: (1) a reasonable probability that the parties would have entered into a contractual relationship; (2) an independently tor-tious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did the act with a conscious desire to prevent the relationship from occurring or with knowledge that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the interference. Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 414-15 (Tex.App.-Waco 2001, pet. denied). To satisfy the second element, the plaintiff must prove that the defendant’s conduct would be actionable under an independent tort, but need not prove all the elements of the independent tort. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex.2001). For example, the supreme court has stated that a plaintiff may recover for tortious interference from a defendant who makes fraudulent statements about the plaintiff to a third party, without proving that the third party was actually defrauded. Id.

Cl asserts that the Appellees engaged in independently tortious conduct by spreading false information about whether Cl was capable of maintaining separate accounts between CMI and CS. Cl argues that although Ybarra had informed Martinez-Fonts that CMI and CS kept separate accounts, the Appellees told Jurey that the programs’ failure to keep separate accounts was a “problem.” Cl relies on Jure/s proposed letter stating that funds were loaned between the two programs and that the Chamber could not assure its members that donations would be used solely by CMI. Cl argues that because Jurey drafted this letter after Martinez-Fonts inquired about the relationship between CMI and CS, one can infer that Martinez-Fonts and the other Appellees made false statements to Jurey regarding the existence of separate accounts.

The record does not support Cl’s arguments. First, the record reflects that Martinez-Fonts got the information about separate accounts from Ybarra on June 22, which was also the day of the personnel committee meeting and the day Jurey drafted the letters. Jurey testified that Jim Haines, the chairman-elect of the Chamber’s board, asked him to draft the letter, and that the information in the letter came from Fleager and Schwartz. Martinez-Fonts testified that he told Ju-rey he did not think the Chamber should send the letter, and the letter was never sent. Moreover, given Fleager’s testimony regarding the loan from CS to CMI, it does not appear that the letter contains any false information.

In short, Cl has raised nothing more than a suspicion that the Appellees spread false information about it. Therefore, the trial court did not err in granting summary judgment on Cl’s claim for tortious interference with prospective business relations.

Business Disparagement

The elements of business disparagement are: (1) the defendant published false and disparaging information about the plaintiff; (2) with malice; (3) without privilege; and (4) that resulted in special damages to the plaintiff. Forbes, 124 S.W.3d at 170. Regarding the first element, the false and disparaging information must amount to a statement of fact. See Prudential Ins. Co. v. Fin. Review Servs., 29 S.W.3d 74, 82 (Tex.2000).

Cl asserts that the Appellees published false and disparaging information about it by telling Jurey that “there was a problem with Cl, in that it could not maintain separate accounts between CMI and [CS].” This is essentially the same as Cl’s argument regarding the second element of tortious interference with prospective business relations and it fails for the same reason. As we have already discussed, there is no evidence that the Appellees told anyone that Cl could not maintain separate accounts between CMI and CS. Instead, Martinez-Fonts simply inquired as to whether there were separate accounts for the two programs.

Because there is no evidence that the Appellees published a false and disparaging fact about Cl, the trial court did not err in granting summary judgment on Cl’s claim for business disparagement.

Civil Conspiracy

Liability for civil conspiracy depends upon participation in an underlying tort for which the plaintiff seeks to hold at least one of the named defendants hable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996). Therefore, if the plaintiff fails to raise a fact question as to the liability of at least one of the defendants for an underlying tort, it is proper to render a summary judgment against the plaintiff on a civil conspiracy claim. See Gonzales v. Am. Title Co., 104 S.W.3d 588, 594 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 864 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Because the trial court properly rendered summary judgment on Cl’s underlying tort claims, it did not err in also granting summary judgment on Cl’s claim for civil conspiracy.

Exemplary Damages

Recovery of exemplary damages requires a finding of an independent tort with accompanying actual damages. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998); Eberle v. Adams, 73 S.W.3d 322, 339 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). As with the civil conspiracy claim, because the trial court properly rendered summary judgment on all of Cl’s tort claims, it did not err in also granting summary judgment on Cl’s claim for exemplary damages.

Cl’s first issue is overruled.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed.

      . It is undisputed that the bank now known as Wells Fargo was known as Norwest in 1999. For simplicity, we refer to that bank as Wells Fargo throughout this opinion.

      . Cl neither filed an affidavit explaining the need for further discovery, nor a verified motion for continuance on that ground; it simply asserted in its summary judgment response that it had not had adequate discovery time.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    IN the Matter of M.D.T., a Juvenile.
    No. 08-03-00409-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 23, 2004.

      James Darrell Lucas, El Paso, for Appellant.
    Jose R. Rodriguez, County Atty., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a juvenile proceeding tried to the court. The court issued an order of adjudication finding that the juvenile, M.D.T., engaged in delinquent conduct. The disposition hearing resulted in the assessment of a two-year community supervision sentence. We reform and affirm.

I. SUMMARY OF THE EVIDENCE

At about 12:30 p.m. on April 17, 2003, the complainant, a seven-year-old child, went with two other children after school to M.D.T.’s house. M.D.T. was a thirteen-year-old juvenile. The complainant then went to play at a neighborhood park. He purportedly threw some dirt on two children and he was taken back to M.D.T.’s house. He then entered M.D.T.’s room while M.D.T. was taking a shower. The complainant related that M.D.T. then pulled down his pants and “put his private parts” in the complainant’s bottom, at least twice.

At 3 p.m., the complainant’s grandmother, Ms. Bean, came to pick up the complainant at the house. Phillip, one of M.D.T.’s brothers, answered the door. When asked about the complainant’s whereabouts, he turned and tried to open M.D.T.’s bedroom door. He did not respond to Ms. Bean’s inquiry. The door was locked and Phillip knocked and M.D.T. called out that he was changing his clothes. She looked into the kitchen and saw David, one of M.D.T.’s siblings. M.D.T.’s mother then approached from the rear of the house and she and Ms. Bean conversed. Bean got the impression that the complainant was not in the house but he soon emerged from M.D.T.’s bedroom and was soon followed out by M.D.T. who was only wearing black sweat pants.

When they were alone in the car, Ms. Bean asked the complainant what went on in the bedroom. After initially denying that anything had occurred, the complainant stated that sexual contact had occurred notwithstanding the fact that the complainant had asked M.D.T. to stop. The complainant was taken to a hospital for a rape examination which proved negative; although there was some evidence that no physical damage was shown as M.D.T. was not fully developed.

M.D.T. presented a number of witnesses including the complainant’s school principal who stated that the complainant had a bad reputation for truth and veracity and he had received a large number of -disciplinary referrals.

Various of M.D.T.’s brothers and sisters testified indicating that they had all been in M.D.T.’s room at varying times and that no sexual assault had occurred. His sister testified that she was in the house when Ms. Bean came to pick up the complainant and the sister stated that another brother, David, was in the room with M.D.T. and the complainant. The brother she referenced testified that he was in M.D.T.’s room the whole time the complainant was in the room and he never witnessed a sexual assault. The brother, Phillip, who answered the door when Ms. Bean arrived stated that Ms. Bean never asked about the complainant’s whereabouts and denied that anyone attempted to open the door of M.D.T.’s room. A Mend of the children, Larry Arellano, stated that David was in the room with the complainant and M.D.T. at all times when the assault could have occurred. M.D.T.’s mother testified that the complainant was out of her sight for, at most, fifteen minutes during the operative period when the assault could have occurred.

II. DISCUSSION

In Issue Nos. One and Four, Appellant asserts that the evidence in legally and factually insufficient to demonstrate that M.D.T. committed the offense of aggravated sexual assault. In the State’s petition it was alleged that M.D.T. committed the offense of aggravated sexual assault by causing the anus of the complainant of a child younger that fourteen years of age to contact the sexual organ of M.D.T. In a second count, it was alleged that M.D.T. committed the offense of indecency with a child by engaging in sexual contact with a child younger than seventeen years of age with intent to arouse and gratify the sexual desire of M.D.T. When reviewing challenges to the legal sufficiency of the evidence to establish the elements of the penal offense that forms the basis of the finding that the juvenile engaged in delinquent conduct, we apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979). In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no pet.). Under this standard, an appellate court must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995).

In reviewing this factual sufficiency challenge, we view all of the evidence but do not view it in the light most favorable to the verdict in determining whether the State met its burden of proof beyond a reasonable doubt. A.S., 954 S.W.2d at 860; see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis, 922 S.W.2d at 133. Only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we conclude that the State failed to carry its burden. A.S., 954 S.W.2d at 860.

Regarding the legal sufficiency of the evidence, we find that the evidence is sufficient to support the court’s finding that M.D.T. engaged in delinquent conduct. M.D.T. asserts that there is insufficient evidence to show that there was illicit sexual contact. The evidence adduced at trial clearly indicated that, “He put—he put where they use number one inside my bottom.” The complainant indicated that, “number one” was when you go to the bathroom. He further indicated that this happened on at least two occasions and had happened several times in the past. We find that the evidence is legally sufficient to support the court’s finding.

Regarding the factual sufficiency of the court’s finding, we note the State’s evidence indicated that M.D.T. was alone in the locked bedroom and he pulled down the complainant’s pants and penetrated his bottom with his penis. Ms. Bean testified that she was suspicious of what had occurred in the house and she testified to the actions of those in the household as being suspicious. After some inquiry, the complainant told her of the various illicit incidents. Countering this evidence, is the testimony of various of M.D.T.’s siblings and friends to the effect that someone else was in the room at all times and the incident could not have happened.

However, this evidence has various inconsistencies. The evidence is conflicting as to which siblings were in the bedroom at any given time. While there was evidence David was in the room the whole time, the sister testified that she only saw David in the bedroom after Ms. Bean had picked up the complainant and that she did not know who was in the bedroom when the door was shut. Ms. Bean testified that she saw David in the kitchen when she first came to the house. While David claimed the bedroom door was never locked during the operative time, Phillip stated that the bedroom door was locked. Giving due deference to the judgment of the fact finder, we do not view M.D.T.’s evidence as being so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence is factually sufficient. Issue Nos. One and Four are overruled.

In Issue No. Five, M.D.T. asserts that the failure of the trial court to administer the warnings mandated in the Family Code prior to commencing the adjudication hearing resulted in reversible error. At the commencement of the adjudication hearing, the court inquired about the vol-untariness of M.D.T.’s written waiver of a right to a jury. The court did not make any inquiries about the admonishments contained in Family Code Section 54.03(b). However, the record does not reflect that M.D.T.’s attorney made any objection in the trial court regarding any complaint about these admonishments. Consequently, he has failed to preserve error. In the Matter of C.C., 13 S.W.3d 854, 859-60 (Tex.App.-Austin 2000, no pet.); In re R.J.C., No. 04-01-00686-CV, 2002 WL 31015532 (Tex.App.-San Antonio Sept.11, 2002, no pet.) (not designated for publication); In re R.R., No. 08-01-00245-CV, 2002 WL 1859101 (Tex.App.-El Paso Aug.14, 2002, no pet.) (not designated for publication). Issue No. Five is overruled.

Having overruled Appellant’s Issue Nos. One, Four, and Five, and having found that we need not address any remaining issues, we affirm the judgment of the trial court as reformed.

      . In Issue Nos. Two and Three, M.D.T. asserts that he has been improperly adjudged delinquent of two offenses and has received a multiple punishment for the same offense in violation of the holding in Ochoa v. State, 982 S.W.2d 904 (Tex.Crim.App.1998). During the State’s closing argument, counsel for the State conceded error with regard to these two contentions. Accordingly, we will not address Issue Nos. Two and Three and we will order that the trial court’s Order of Adjudication be reformed to delete any reference to count II as referenced in the State’s Petition to Adjudicate Delinquent Conduct. See id. at 908.

      . Tex. Fam.Code Ann. 54.03(b) (Vernon Supp. 2004-05) provides:
      (b) At the beginning of the adjudication hearing, the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem:
      (1) the allegations made against the child;
      (2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding;
      (3) the child’s privilege against self-incrimination;
      (4) the child’s right to trial and to confrontation of witnesses;
      (5) the child’s right to representation by an attorney if he is not already represented; and
      (6) the child’s right to trial by jury.


author:
DON BURGESS, Justice.
      DAVID GAULTNEY, Justice,

text:
    Paul DURHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-175 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Dec. 1, 2004.
    Decided Dec. 29, 2004.

      Bill Burnett, Coldspring, for appellant.
    Clyde M. Herrington, Dist. Atty., J. Dawn Armstrong, Lufkin, for state.
    Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
   OPINION

DON BURGESS, Justice.

A jury found Paul Durham guilty of aggravated sexual assault of a child and assessed punishment at sixty years’ confinement in the Texas Department of Criminal Justice, Institutional Division, and assessed a fine of $5000. See Tex. Pen.Code AnN. § 22.021(a) (Vernon Supp. 2005). Durham appeals.

In a sole appellate issue, Durham maintains the trial court committed reversible error by denying his requested “no adverse inference” jury instruction regarding Durham’s failure to testify at the punishment phase of trial. During the guilt/innocence phase, the “no adverse inference” instruction was not given because Durham testified.

The State maintains Durham failed to preserve error on this issue because: (1) defense counsel stated he had no objection to the charge; (2) defense’s counsel’s statements were ambiguous about his request; he neither used the term “no adverse inference,” nor explained the request clearly; (3) defense counsel failed to submit his request in writing as required by article 36.14 of the Code of Criminal Procedure; and (4) defense counsel failed to explain to the judge that appellant had a separate right to not testify during the punishment phase, even if he had testified during the guilt/innocence phase.

It is axiomatic that a criminal defendant cannot be compelled to be a witness against himself. U.S. Const. amend. V, cl. 3. A defendant’s right not to testify continues beyond conviction until after a defendant has been sentenced. Beathard v. State, 767 S.W.2d 423, 432 (Tex.Crim.App.1989); Brown v. State, 617 S.W.2d 234, 237 (Tex.Crim.App.1981). Further, a defendant has a right to a no-adverse-inference instruction, which concerns the fact a defendant elects not to testify, at the punishment stage of a trial. White v. State, 779 S.W.2d 809, 828 (Tex.Crim.App.1989); Beathard, 767 S.W.2d at 432; Brown, 617 S.W.2d at 238. The failure of the trial court to include the instruction upon proper request is error. White v. State, 779 S.W.2d at 828.

Next, we determine whether appellant objected to the failure to include a “no-adverse-influence” instruction or made a proper request to add such instruction. Prior to the submission of the charge to the jury, the following exchange between the trial judge and counsel occurred:

THE COURT: Counsel, I have presented to you what I propose to be the charge of the Court. Are there any objections, requested instructions, on behalf of the State?
[STATE]: None, Your Honor.
THE COURT: What says the Defendant?
[DEFENSE COUNSEL]: Your Honor, I haven’t had a chance to go through the whole thing, but I know one aspect is, is my client did not testify in the punishment phase. And there’s a paragraph similar to the one in the guilt/innocence in which under applicable law, or I should say—
THE COURT: Where are you talking about?
[DEFENSE COUNSEL]: That a defendant may testify on his behalf if he elects to do so, but that’s a privilege. If he elects not to testify that fact or circumstance can’t be used' against him here, and it should not be considered in deliberations or taken into consideration.
THE COURT: Where are you reading that?
[DEFENSE COUNSEL]: That is from a previous — another charge that I have.
THE COURT: Okay. Read my charge.
[DEFENSE COUNSEL]: Oh.
THE COURT: We’re not doing somebody else’s charge.
[DEFENSE COUNSEL]: I understand.
THE COURT: This is one. And I have not found that instruction in here.
[DEFENSE COUNSEL]: And I’m requesting that instruction. I guess, is what I—
THE COURT: He testified in the previous part, and so you’re entitled to that instruction in this charge.
[DEFENSE COUNSEL]: Adi right.
THE COURT: So if that’s a requested—
[DEFENSE COUNSEL]: That’s a requested instruction.
THE COURT: Okay. That will be denied. All right.
[DEFENSE COUNSEL]: That’s all I have, Your Honor, to submit. I don’t have any objections.

Considering the above exchange, we conclude the trial court understood defense counsel was requesting an instruction that the jury could draw no adverse inference from appellant’s failure to testify in the punishment phase. See Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000). The Court of Criminal Appeals held that the only requirement for preserving error is for the requested instruction be in writing or dictated to the court reporter. Vasquez v. State, 919 S.W.2d 433, 435 (Tex.Crim.App.1996). Here, defense counsel read the following language from a previous charge into the record: “That a defendant may testify on his behalf if he elects to do so, but that’s a privilege. If he elects not to testify that fact or circumstance can’t be used against him here, and it should not be considered in deliberations or taken into consideration.” We find that appellant sufficiently requested a “no adverse inference” instruction, that the trial court erred in failing to grant the instruction, and that the error has been preserved for our review.

In cases of constitutional error subject to harmless error review, a reviewing court applies Texas Rule of Appellate Procedure 44.2(a), which requires us to reverse a judgment of conviction or punishment unless we determine, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. See Tex.R.App. P. 44.2(a); see Fulbright v. State, 41 S.W.3d 228, 235 (Tex.App.-Fort Worth 2001, pet. ref'd). A constitutional error within the meaning of Rule 44.2(a) is an error that directly offends the United States or Texas constitution, without regard to any applicable statute or rule. Tate v. State, 988 S.W.2d 887, 890 (Tex.App.-Austin 1999, pet. refd). The failure to give a properly requested “no adverse inference” instruction is an error directly offending the constitutional Fifth Amendment right against self-incrimination. See White, 779 S.W.2d at 828; Beathard, 767 S.W.2d at 432; Brown, 617 S.W.2d at 238.

The Fifth Amendment attempts to secure the right of a criminal defendant to elect not to testify and to prohibit the State from exacting a price for exercising that right. Ghiffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965). The omission of a no-adverse-inference punishment instruction attaches such a price to the exercise of the privilege because “the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant’s silence.” Carter v. Kentucky, 450 U.S. 288, 301, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981). The Carter Court made clear the importance of a defendant’s constitutional right to remain silent:

We have repeatedly recognized that “instructing a jury in the basic constitutional principles that govern the administration of criminal justice,” is often necessary. Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law. Such instructions are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination, since “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are ... guilty of crime.... ” And, as the Court has stated, “we have not yet attained that certitüde about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court....”
A trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.

Id., 450 U.S. at 802-03, 101 S.Ct. at 1120 (citations and footnotes omitted).

While the State argues that no harm resulted from the trial court’s omission of the requested charge, we cannot agree. At the punishment phase, the State introduced evidence about flaws in the probation system, including the case loads of probation officers, the limited amount of time a probation officer spends monitoring an offender, the unavailability of electric monitoring, and the possibilities that parole violators will not be incarcerated. James Webb testified on appellant’s behalf at the punishment phase. Webb stated appellant had complied with the Court’s restriction while awaiting trial and that appellant’s family supported him and would provide assistance if appellant received a probated sentence. When asked whether appellant would follow the rules and be responsible if the jury gave him probation, Webb answered affirmatively. As appellant testified in the guilt/innocence phase, the jury reasonably could have expected to hear similar promises of compliance directly from appellant.' Further, appellant was sentenced to a term of sixty years’ imprisonment, while the available punishment ranged from terms of five years to ninety-nine years.

With such a punishment range available, coupled with the punishment phase evidence and in the absence of prior offense evidence, we cannot conclude beyond a reasonable doubt that appellant’s failure to receive a “no adverse inference” instruction did not contribute to the sentence he received. Accordingly, we sustain appellant’s issue. We reverse the trial court’s judgment as to appellant’s punishment and remand this cause to the trial court for a new punishment healing only.

REVERSED AND REMANDED.

GAULTNEY, Justice, dissenting.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. In this case, the trial court’s failure to give the “no adverse inference” instruction to the jury was harmless. See Beathard v. State, 767 S.W.2d 423, 432-33 (Tex.Crim.App.1989). There is a natural tendency to assume that the defendant’s decision not to testify stems from his having something to hide. Id. at 432. But that is not a concern here. Durham had already testified during the guilt/innocence phase and related his version of the facts.

The State’s evidence during punishment consisted of a probation department employee’s testimony concerning the possibility of counseling for sex offenders in prison. This was not a factual assertion that Durham needed to deny or counter. The jury had found him guilty. The range of punishment for the offense was five to ninety-nine years; the jury did not assess the maximum. See Tex. Pen.Code Ann. § 22.021(e) (Vernon Supp.2005); Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The jury heard evidence Durham had never before been convicted of a felony. His friend made a plea for probation and testified he would help Durham follow probation rules. And during voir dire, the State explained a defendant’s Fifth Amendment right not to testify and remain silent. Here, there were no factual assertions in the punishment phase that the jury would have expected Durham to counter. As in Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App.1989), the error in failing to give a “no adverse inference” instruction to the jury was harmless under these circumstances.

      . Article 36.14, "Charge of court,” provides, in part:
      Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection_ The requirement that the objections to the court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court's charge to the jury. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in overruling defendant's exceptions or objections to the charge.
      TexCrim. Proc.Code Ann. § 36.14 (Vernon Supp.2005).

      . The pertinent part of the court's punishment charge states:
      You are further charged that in fixing the defendant's punishment, you may take into consideration all of the evidence submitted to you in the full trial of this case, that is, all of the evidence submitted to you- in the trial of the first part of this case wherein you were called upon to determine the guilt or innocence of the defendant, and all of the evidence, if any, admitted before you in the second part of the trial wherein you were called upon to fix the defendant's punishment; and you will be bound by the charges of the Court covering both the first and second parts of this trial in determining what punishment shall be given to the defendant. References


author: STEVE McKEITHEN, Chief Justice.

text:
    Robert Dewayne GANT, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-527 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 21, 2004.
    Decided Dec. 29, 2004.
    Discretionary Review Refused April 6, 2005.

      Karla J.M. Rogers, Vidor, for appellant.
    John D. Kimbrough, County Atty., Gary R. Bonneaux, Asst. County Atty., Orange, for state.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellant was indicted for intentionally fleeing from a person he knew was a peace officer attempting to arrest him on or about February 16, 2002. An additional allegation indicated appellant had been previously convicted for evading detention in 1997, raising his punishment exposure to that of a third degree felony. See Tex. Pen.Code Ann. § 38.04(a), (b)(2)(A) (Vernon 2003). Following the jury’s “guilty” verdict, appellant pleaded “true” to the 1997 enhancement allegations, and was assessed punishment at seven years’ incarceration in the Texas Department of Criminal Justice, Correctional Institutions Division, and assessed a fíne of $2,000. Three issues are presented to us in this appeal, viz:

1.Whether the trial court erred in denying the defense’s challenge of nine prospective jurors for cause.
2. Whether the trial court erred in admitting prejudicial hearsay over the defense counsel’s objection.
3. Whether the trial counsel rendered ineffective assistance to defendant in failing to object and or suppress his incriminating statements made in violation of federal and state law.

Finding no error, we affirm the judgment of the trial court.

Under issue one, the record reflects that at the conclusion of voir dire, trial counsel requested discharge of the following numbered venire-persons because “they have stated that they must hear both sides of the story before rendering the decision in the case in violation of the defendant’s right to remain silent ... 7, 8, 16, 32, 25, 26, 35, 22, and 36.” The trial court denied this request.

To preserve error on erroneously denied challenges for cause, an appellant must demonstrate that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of venireperson, that all of his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.

Mathis v. State, 67 S.W.3d 918, 922 (Tex.Crim.App.2002). The record before us indicates that appellant did not use peremptory challenges on jurors seven, eight, and twenty-six, and they subsequently served on the jury. The record does not indicate that appellant requested any additional strikes. Appellant has failed to preserve error on this issue. Issue one is overruled.

Appellant’s second issue contends the trial court permitted prejudicial hearsay to be admitted over timely objection. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial, offered in evi-denee to prove the truth of the matter asserted. See Tex.R. Evid. 801(d). The trial court is the institutional arbiter of whether an out-of-court statement is admissible in the face of a hearsay objection. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Whether evidence is admissible under some provision of Article VIII of the Texas Rules of Evidence is a question for the trial court to resolve, and is reviewable on appeal only under an abuse of discretion standard. See Id. at 149.

The record reflects that on February 16, 2002, Detective Sarah Ann Jefferson-Simon of the City of Orange Police Department was working as an off-duty escort for a funeral when she observed appellant driving a red vehicle. Detective Jefferson-Simon recognized appellant from prior encounters with him over her fourteen years with the Orange Police Department, as well as from knowing several members of appellant’s family. On this particular occasion, she also was aware that appellant had an outstanding federal warrant for his arrest. As appellant slowly passed Detective Jefferson-Simon’s police unit, he made eye contact with her, and she pulled her vehicle onto the roadway in pursuit, activating her emergency lights in the process. Appellant increased the speed of his vehicle, and Detective Jefferson-Simon continued to pursue. After running through several stop signs, appellant abandoned his vehicle at the end of a dead-end street and fled on foot. Detective Jefferson-Simon didn’t engage in foot pursuit of appellant, but radioed for back-up units to assist. Appellant was not located on that occasion.

Two days later, Detective Jefferson-Simon received a call from a confidential informant who stated that appellant was at his girlfriend’s apartment at a certain address in the city of Orange. Along with three other detectives, Detective Jefferson-Simon went to the stated address and found appellant asleep on the couch. On direct examination, Detective Jefferson-Simon testified as follows:

Q.[State] What did you say to the defendant?
A.[Jefferson-Simon] We — one of the officers handcuffed him. I’m not sure which one of us handcuffed him; and then I told him, I said, ‘Yeah, you got away from me on Saturday; but you won’t get away today.”
Q. What did the defendant say?
A. He told me at the time, he said something to the effect that, yes, if I would have waited a little later he was going to be gone and that he should have left prior to that like he started to at first and I wouldn’t have gotten him.
Q. Did the defendant at any time deny that it was him that ran from you that Saturday, the 16th?
A. No, he did not.

On cross-examination, appellant’s trial counsel took issue with several aspects of the police investigation of the charged offense, with the following questions being related to the detective’s prior testimony surrounding the arrest of appellant:

Q.[Trial Counsel] All right. Now, you testified that you went over and personally arrested Mr. Gant a couple of days later and he said something to the effect — and I’m not necessarily using this for a direct quote — but something necessarily to the effect, according to you, that if he would have left earlier he wouldn’t have been there and he should have left earlier?
A. That’s what he said, something to that effect, to me.
Q. Okay. I’m going to tender to you the offense report dated 2-18-02 and consists of two pages. (Tendering) Is that your entire offense report regarding that incident?
A. Yes, it is.
Q. Is there anywhere in that offense report where you have indicated that Mr. Gant said anything to you about should have left earlier or that he would have left earlier had he known you were coming?
A. No, it’s not. (Returning same)
Q. Did you write a complete offense report in this case?
A. That is a complete offense report.
Q. Is that a “yes,” ma’am?
A. Yes, it is.

It was within this testimonial context that the statement in question under issue two was admitted. Detective Danny Hodges of the City of Orange Police Department was also called as a witness for the State. Detective Hodges was one of the other detectives present when appellant was arrested at his girlfriend’s apartment. Appellant directs our attention to the following direct examination testimony of Detective Hodges:

Q. [State] Okay. Where was the defendant?
A. [Hodges] He was in an apartment at Chivas Square Apartments off of Meeks Drive lying on a couch I believe in the living room area.
Q. Okay. And do you recall him being handcuffed?
A. I handcuffed him.
Q. Okay. And did Sarah Jefferson say anything to him?
[Trial Counsel]: Your Honor, I object as hearsay.
THE COURT: Did she say anything is not hearsay.
Q. [State] Did — did she say anything to him?
A. Yes, sir, she did.
Q. Okay. And did she make a reference to the defendant evading her on Saturday—
[Trial Counsel]: Your Honor—
Q. [State] —the Saturday before?
[Trial Counsel]: —this is hearsay.
[State]: Your Honor, she’s already testified; and we’re just going to go into what he said in response to Sarah Jefferson. So, at this point in time we’re not offering what Sarah Jefferson said for the truth of the matter but we’re just going into what the defendant said.
THE COURT: Overruled.
A. Answer your question?
Q. [State] Yes.
A. She made the statement to the defendant that something to the effect that, ‘You got away from me Saturday but you didn’t get away today.”
Q. And what did the defendant say?
A. He acknowledged her by saying, ‘Yes.” And then made the statement, something to the effect of “If you had not — if you had been here a few hours later, I would not have been here.”

In his brief, appellant contends that his objection to Detective Hodges’ recollection of what Detective Jefferson-Simon stated to appellant “was made not to the substance of [Detective Hodges’] testimony but to the form, i.e. That [sic] it was hearsay.” Appellant further explains:

Sarah Jefferson’s live testimony was not hearsay; what she stated in the presence of her fellow police officers was. [Hodges’] testimony indirectly attempted to bolster Jefferson’s previous testimony by admitting her hearsay statements. Bolstering by its very nature is objectionable and harmful.

In its brief, the State initially argues appellant failed to preserve the issue, and then argues that the State was not offering Detective Jefferson-Simon’s remark through Detective Hodges’ testimony for the truth of what Detective Jefferson-Simon stated, but only “to show what was said.” Although this latter argument by the State appears to be the reason provided to the trial court for the testimony’s admissibility, there are other possibilities. Generally, the State, as the proponent of the evidence, has the burden of proving to the trial court, by a preponderance of the evidence, that such testimony is admissible under the hearsay rules. See Meador v. State, 812 S.W.2d 330, 333 (Tex.Crim.App.1991) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (stating that a proponent of evidence had the burden of showing, by a preponderance of the evidence, that the testimony was admissible under a hearsay exception)).

As Detective Jefferson-Simon was impeached by appellant’s trial counsel with the fact she failed to include the verbal exchange between herself and appellant at the time of appellant’s arrest in her offense report, it was reasonable for the State to attempt to rehabilitate her through Detective Hodges’ recounting of the event. If, under these circumstances, rehabilitation is an exception to the general rule of inadmissibility of hearsay, the State does not provide us with authority. Moreover, we disagree with the State’s contention that Detective Hodges’ testimony at issue here was not offered for the truth of what Detective Jefferson-Simon said, but merely for “going into what the defendant said.” Taken out of context, “what the defendant said” was merely a reply to Detective Jefferson-Simon’s remark that he got away from her on Saturday, but not this day. Standing alone, appellant’s reply appears to lose its incriminatory value. Tex.R. Evid. 801(e)(2)(A) provides that a party’s own statement offered into evidence against him is not hearsay. Strietly speaking, that is not the problem with which we are faced, although this appears to be what the State was urging to the trial court for the admissibility of the out-of-court remark of Detective Jefferson-Simon.

Though not mentioned by either party at trial or on appeal, Tex.R. Evid. 801(e)(2)(B) may provide an answer. Rule 801(e)(2)(B) provides that a statement of which a party has manifested an adoption or belief in its truth is also not hearsay if offered into evidence against that party. See Tex.R. Evid. 801(e)(2)(B). Known as an “adoptive admission,” it occurs when a statement is made in the defendant’s presence, the defendant understands the statement, the statement calls for a reply, and the defendant remains silent or acquiesces to the statement, although not under arrest. See Crestfield v. State, 471 S.W.2d 50, 53 (Tex.Crim.App.1971); see also Tucker v. State, 771 S.W.2d 523, 535 n. 5 (Tex.Crim.App.1988) (Rule 801(e)(2)(B) is the codification of the “Crestfield Doctrine.”). The Court in Crestfield further held, however, that since the defendant was under arrest at the time the declaration was made in his presence, in the face of a timely and proper objection, the testimony should be excluded. Crestfield, 471 S.W.2d at 54. The Court further noted that the proper objection to such a declaration or statement is that the defendant was under arrest at the time, making the admission of such evidence an infringement against the defendant’s rights against self-incrimination and a violation of the confession statute under both Tex. Code CRiM. PROC. Ann. arts. 38.21 & 38.22 (Vernon 1979 & Supp.2005). Id.

In .the instant case, appellant was under arrest at the time Detective Jefferson-Simon’s statement was made. At trial, the appellant’s objection to the admissibility of the statement through Detective Hodges was that it was hearsay. Assuming without deciding that appellant’s apparent affirmation of Detective Jefferson-Simon’s remark equated to a confession while he was under arrest, the lack of a proper objection when the statement was proffered failed to preserve the issue for appellate review. See Gibson v. State, 516 S.W.2d 406, 409 (Tex.Crim.App.1974).

Finally, the testimony of Detective Hodges was cumulative of Detective Jefferson-Simon’s testimony on the same matter. The admission of evidence is not reversible error if the same facts are proven by other properly admitted evidence. See Matz v. State, 21 S.W.3d 911, 912 (Tex.App.-Fort Worth 2000, pet. ref'd); Tex.R.App. P. 44.2(b). Rule 103(a) of the Texas Rules of Evidence would also compel us to disregard the error. See Jackson v. State, 17 S.W.3d 664, 672 (Tex.Crim.App.2000); see also Tex.R. Evid. 103(a). We overrule issue two.

Appellant’s last issue contends his trial counsel’s performance was deficient for the single omission of failing to object to Detective Jefferson-Simon’s testimony relating what appellant said in response to her comment to him during his arrest. Appellant contends he was in custody when he made the incriminating statements and the statements were not res gestae of the offense. Appellant argues trial counsel was ineffective in failing to recognize the incriminating statement made by appellant, without benefit of his Miranda warnings, violated appellant’s rights under both the United States and Texas Constitutions, as well as Tex.Code CRiM. PROC. Ann. arts. 38.22 & 38.23 (Vernon 1979 & Supp.2004).

In Miranda, the Court held that an individual’s privilege against self-incrimination is jeopardized when he is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Therefore, the privilege against self-incrimination in the context of Miranda' comes into play only when an individual is subjected to custodial interrogation by the authorities. Id. “That a person makes a statement at a police station in response to questioning does not automatically make the resulting statement the product of ‘custodial interrogation.’ ” See Holland v. State, 770 S.W.2d 56, 58 (Tex.App.-Austin 1989), aff'd, 802 S.W.2d 696 (Tex.Crim.App.1991). Furthermore, an offhand remark by police personnel, not designed to licit any kind of response from an individual in custody, does not constitute custodial interrogation. See Rhode Island v. Innis, 446 U.S. 291, 302-03, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S.Ct. 1682. It is important to recognize the Court in Miranda provided a reasoned approach to admissibility of incriminating statements made by non-suspects as well as by individuals in custody:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Miranda, 384 U.S. at 478, 86 S.Ct. 1602 (footnote omitted).

Like Miranda, art. 38.22 of the Texas Code of Criminal Procedure applies only to statements made as the result of custodial interrogation. See Tex.Code Crim. PROC. Ann. art. 38.22, § 5 (Vernon 1979) (“Nothing in this article precludes the admission of a statement made by the accused ... that does not stem from custodial interrogation....”). In the instant case, when appellant made the statements in question, he was not being subjected to questioning by the arresting police personnel. Although incriminating, the statements appear to have been made spontaneously and voluntarily. Since appellant’s remarks were otherwise admissible as an admission by a party-opponent under Tex.R. Evid. 801(e)(2), and were not the product of custodial interrogation, trial counsel had no duty to object or to attempt to suppress them. We find no deficient performance on the part of trial counsel under the record before us. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App.1999). Issue three is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: DAVID GAULTNEY, Justice.

text:
    In re ESTATE OF Eli DAVIDSON.
    No. 09-04-212 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 11, 2004.
    Decided Dec. 30, 2004.

      James J. Hartnett, Jim J. Hartnett, Jr., R. Kevin Spencer, Melinda J. Hartnett, The Hartnett Law Firm, Dallas, for appellants.
    Zack M. Zbranek, Richard G. Baker, Baker & Zbranek, PC, Liberty, for appel-lee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Appellants appeal from the trial court’s denial of a bill of review under the Texas Probate Code. See Tex. PROb.Code Ann. § 31 (Vernon 2003). Eh Davidson died March 2, 2003. Donna Zeller, a niece, sought to probate a January 2001 will that named her as Davidson’s sole beneficiary and a February 2001 codicil that named her as executor. The trial court admitted the will to probate and appointed Zeller executor. After Zeller signed the executor’s oath, some of Davidson’s other nieces and nephews filed a will contest and a statutory bill of review. (1) See Tex. PROB. Code Ann. §§ 31, 93 (Vernon 2003). The trial court denied the bill of review, but did not sever it from the will contest. Contestants appeal the order denying the bill of review.

The Probate Code provides procedures for a direct attack on a probate order. See Tex. Prob.Code Ann. §§ 31, 93 (Vernon 2003); see also Ladehoff v. Ladehoff, 436 S.W.2d 334, 336-37 (Tex.1968).(2) Sections 31 and 93 are at issue here. The bill of review statute, section 31, allows for correction of error at any stage of the probate proceedings so long as it is filed within two years of the date of the challenged order, decision, or judgment. Section 93 provides for a will contest after the will has been admitted to probate. In a proceeding attacking an order admitting a will to probate, the burden is on the contestant to prove grounds for the contest. See In re Estate of Graham, 69 S.W.3d 598, 605 (Tex.App.-Corpus Christi 2001, no pet.) (testamentary capacity); Evans v. May, 923 S.W.2d 712, 714-15 (Tex.App.Houston [1st Dist.] 1996, writ denied) (undue influence).

Section 31 provides as follows:
Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment.

Tex. PROb.Code ÁNN. § 31 (Vernon 2003).

Section 93 provides as follows:

After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest.

Tex. PROB.Code Ann. § 93 (Vernon 2003). While both sections authorize a direct attack on an order admitting a will to probate, there is no apparent distinction between the provisions in the context of a post-probate will contest other than Section 93’s provisions dealing with forgery or fraud and incapacitated persons.

In their Section 31 pleading, contestants asserted Zeller had not complied with the statutory requirements for probating the will. Specifically, contestants maintained that proper citation was not served and returned as required by the Probate Code, no proof was offered to probate the codicil that appointed Zeller as executor, the order probating the will had to be aside, and the appointment of Zeller was void. In the Section 93 will contest pleading, filed the same day and subject to the bill of review, contestants asserted the order admitting the will to probate should be set aside because of Davidson’s alleged lack of testamentary capacity, Zeller’s undue influence on Davidson, and Zeller’s breach of fiduciary duty. The ultimate issue raised in both the bill of review and the will contest is whether the county court’s order admitting the will of Eli Davidson to probate should be set aside. Zeller contends this court has no jurisdiction, because the order denying the bill of review is interlocutory. Specifically she argues the bill of review is but one part of the contest of the will, and there are other pleadings of the same parties raising issues yet undecided. In response, appellants maintain the bill of review is a separate and distinct phase of the probate proceedings.

The Probate Code provides that “[a]ll final orders of any court exercising original probate jurisdiction shall be ap-pealable to the courts of appeals.” Tex. Prob.Code AnN. § 5(g) (Vernon Supp.2005). A probate proceeding consists of a continuing series of events in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based. Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.-Austin 2000, pet. denied). In probate proceedings, the need to review controlling, intermediate decisions, before an error can harm later phases of the proceedings, justifies modifying the one final judgment rule. Id. In Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex.1995), the Texas Supreme Court set out the following test for determining whether a probate order is final and appealable:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory. For appellate purposes, it may be made final by a severance order, if it meets the severance criteria[.] ... In setting this standard, we are mindful of our policy to avoid constructions that defeat bona fide attempts to appeal, [citations omitted] A severance order avoids ambiguities regarding whether the matter is appeal-able. Litigants can and should seek a severance order either with the judgment disposing of one party or group or parties, or seek severance as quickly as practicable after the judgment.

We apply the standard in Crowson to determine whether the order here is final.

A will contest is a direct attack on the order admitting the will to probate and is considered part of the probate proceeding. See In re Devitt, 758 S.W.2d 601, 607 (Tex.App.-Amarillo 1988, writ denied) (op. on reh’g). Contestants’ two pleadings concern the same phase of the case — both seek vacation of the order admitting the will to probate and appointing Zeller executor. In denying the bill of review, the trial court has refused to set aside the probate only on the grounds asserted in the Section 31 pleadings. Those are some of the issues in the determination of whether to set aside the order admitting the will to probate and remove Zeller as executor. But as appellants said in their motion requesting the probate court to consolidate the proceedings, the “same or similar” issues are involved in both proceedings. The issues overlap. There remain issues asserted in the Section 93 pleadings affecting the probate court’s determination. The probate court has not ruled on all issues in this consolidated proceeding and did not enter a severance order. The court may decide to revisit its Section 31 ruling or may decide to set aside the order on a separate ground asserted in the Section 93 pleading. Because there are ongoing proceedings and unresolved issues relevant to the order, we conclude under these circumstances the order does not terminate a discrete phase of the probate proceeding. The trial court’s Section 31 ruling here is not final and appealable. The appeal is dismissed for lack of jurisdiction.

DISMISSED FOR WANT OF JURISDICTION.

      . At the trial court’s urging, contestants filed the section 31 bill of review in a separate cause number. Contestants later filed a motion asserting that the same or similar issues were involved in both proceedings, and requesting that the bill of review be consolidated with the section 93 will contest. The trial court consolidated the two proceedings.

      . Under section 10 of the Probate Code, a person interested in an estate may file a written opposition before a will is admitted to probate. See Tex. Prob.Code Ann. § 10 (Vernon 2003); see also Schindler v. Schindler, 119 S.W.3d 923, 928 (Tex.App.-Dallas 2003, pet. denied). The proponent of the will has the burden of proof on the requirements to be proved to establish the will. See Tex. Prob. Code Ann. § 88 (Vernon 2003); see also In re Estate of Flores, 76 S.W.3d 624, 629 (Tex.App.-Corpus Christi 2002, no pet.). Here contestants could not use section 10 because the will had already been probated before any challenge was raised. This is not an appeal directly from the county court's order admitting the will to probate. See Cooley v. Williams, 31 S.W.3d 810 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (Contestant chai-lenged application to probate will and appealed from trial court's order admitting will to probate); In re Estate of Crenshaw, 982 S.W.2d 568 (Tex.App.-Amarillo, 1998, no pet.) (appeal from appointment of executor). See Tex. Prob.Code Ann. § 5(g) (Vernon 2003) (all final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals). Rather, this is an appeal from an order in a bill of review.


author: MICHAEL A. WOLFF, Judge.

text:
    Jerry and Kimberly NORMAN, Individually and as Husband and Wife, and Jerry Norman, as plaintiff ad litem for Kenneth Norman, a deceased minor, Appellants, v. Andy J. WRIGHT, M.D., Respondent.
    No. SC 86089.
    Supreme Court of Missouri, En Banc.
    Jan. 25, 2005.
    David W. Ransin, Springfield, for Appellants.
    Joel A. Block, Bruce E. Hunt, Glenn A. Burkart, Springfield, for Respondent.
   MICHAEL A. WOLFF, Judge.

This Court again considers the judgment upon the verdict in favor of Kimberly and Jerry Norman against Dr. Andy J. Wright for the wrongful death of the Normans’ son. In the first appeal, Norman I, 100 S.W.3d 783 (Mo. banc 2003), this Court reversed the circuit court’s judgment reducing the verdict by the amount of a pretrial settlement with two other defendants.

This appeal presents essentially the same question. After remand, the circuit court allowed an amendment to Dr. Wright’s answer to assert an affirmative defense and again reduced the verdict by the amount of the pretrial settlement. After opinion in the Court of Appeals, Southern District, this Court granted transfer and has jurisdiction. Mo. Const, art. V, section 10.

The facts, as set forth in Norman /, show that the Normans’ son died from brain damage suffered during birth. The Norman’s sued Dr. Wright, another doctor, and a hospital. A year before trial, the Normans reached a settlement in the amount of $100,000 with the hospital and the other doctor. After the settlement, only the claims against Dr. Wright remained and were the subject of the trial.

In his answer, filed after the settlement, Dr. Wright requested that the jury apportion the fault of all parties, citing section 538.230.

The circuit court granted the Normans’ motion to strike the request, citing a lack of specific allegations. Dr. Wright did not amend his answer to make his affirmative defense more specific. Later, during a pretrial conference, Dr. Wright waived jury apportionment under section 538.280.

After the jury awarded the Normans’ $308,855.35, Dr. Wright moved to reduce the verdict by $100,000, citing section 537.060.

This Court held in Norman I that a reduction under section 537.060 must be pleaded and proved as an affirmative defense. 100 S.W.3d at 785. This Court held: “The trial court should not have reduced the judgment, because Dr. Wright failed to plead and prove the affirmative defense of reduction under section 537.060.” 100 S.W.3d at 786.

In a footnote to this holding, this Court said that it need not “decide how late a trial court may permit amendment of the pleadings in order to request a reduction under section 537.060.” This part of the footnote should not have been read to undercut this Court’s holding by allowing an amendment to the answer in this case to assert an affirmative defense years after trial.

A settlement with some, but not all, defendants may trigger a remaining defendant’s motion to amend the answer to raise the affirmative defense of reduction under section 537.060 or the affirmative defense of an apportionment under section 538.230, which applies to health care providers. 100 S.W.3d at 785.

Amendment of pleadings is addressed to the sound discretion of the trial court. Rule 55.33. Prompt assertion of these affirmative defenses after a partial settlement will negate or substantially undercut arguments of prejudice — arguments that might otherwise cause a trial court judge to exercise discretion to deny an amendment.. ■

The partial settlement in this case occurred a year before trial. Prior to trial, Dr. Wright attempted to amend his answer to assert the affirmative defense of apportionment under section 538.230. He later abandoned this effort before trial. Dr. Wright waited until after trial to move that the verdict be reduced by the $100,000 amount of the settlement with the two defendants, under section 537.060. This Court in Norman I specifically disapproved a court of appeals decision that held that - a motion for reduction of the verdict under section 537.060 may be filed, considered and ruled at any time after entry of judgment. Here, as this Court noted in Norman I, the issue of reduction under section 537.060 was not raised by the pleadings, and the case was tried without any reference to that statute.

In this appeal, Dr. Wright does not seek a new trial. He seeks only to apply an affirmative defense after the case has been tried. In the context of this case, that is too late. The settlement that was reached with the other two defendants was, as noted, a year before the trial of this case. The trial court could have considered an amendment as timely during that period. In the circumstances of this case, it was an abuse of discretion for the trial court to allow an amendment to the pleadings to assert an affirmative defense after trial.

The judgment of the circuit court is reversed, and the case is remanded for the entry of a judgment on the jury’s verdict that does not include a reduction for the settlement amount.

All concur.

      . All references are to RSMo 2000 unless otherwise indicated.

      . Section. 537.060 provides in part:
      Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or riot to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater.

      . Jilien v. St. Louis University, 10 S.W.3d 150, 152 (Mo.App.1999)