author: HOLLY M. KIRBY, J.,

text:
    JACKSON ENERGY AUTHORITY v. William T. DIAMOND, Jr.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Assigned on Briefs Oct. 28, 2004.
    Jan. 20, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 22, 2005.

      J.B. “Buddy” Glassman, Jackson, Tennessee, for the appellant, William T. Diamond, Jr.
    Timothy N. Thompson, Knoxville, Tennessee, for the appellee, Jackson Energy Authority.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This case involves the timeliness of an appeal from General Sessions Court to Circuit Court. The plaintiff utility company sued the defendant building owner in General Sessions Court for past due utility payments. On July 28, 2003, the General Sessions Court entered a judgment in favor of the plaintiff. On August 1, 2003, the defendant filed a petition to rehear, seeking to have the judgment set aside. On August 6, 2003, the General Sessions Court denied the petition to rehear. On August 18, 2003, the defendant filed a notice of appeal for a de novo review in Circuit Court. The Circuit Court dismissed the appeal on the basis that it was not filed within ten days of the final General Sessions judgment entered on July 28, 2003. The defendant now appeals that decision, arguing that the ten-day time limitation was tolled by his General Sessions petition to rehear. We affirm, concluding that the time limitation for filing an appeal to Circuit Court is not tolled by a petition to rehear filed in General Sessions, because no statute grants the General Sessions Court authority to hear such a petition to rehear.

Defendant/Appellant William T. Diamond, Jr. (“Diamond”) is the owner of a commercial building in Tennessee rented by several tenants. Plaintiff/Appellee Jackson Energy Authority (“Jackson Energy”) provides utility services for Diamond’s building.

On October 1, 2002, Jackson Energy filed a complaint against Diamond in the General Sessions Court of Madison County, alleging that Diamond was liable on the tenants’ accounts and seeking damages for unpaid utility bills in the amount of $8,587.37. On October 28, 2002, Diamond filed a response denying the charges in the complaint.

The matter was scheduled for a hearing on December 16, 2002. On that day, Diamond requested a continuance, which request was granted. The matter was set again for April 28, 2003. However, on April 22, 2003, Diamond filed a second request for a continuance. This second request was likewise granted by the General Sessions Court.

On July 25, 2003, Diamond filed a “Petition, Affidavit, and Motion to Dismiss,” claiming that Jackson Energy’s complaint should be dismissed for failure to state a claim and denying liability on the accounts alleged by Jackson Energy. Diamond also argued that Jackson Energy’s attempt to collect the utility bills of some of his tenants but not others violated his constitutional right to equal protection.

On July 28, 2003, the General Sessions Court conducted a hearing on the matter. Jackson Energy was present, represented by counsel, and Diamond’s attorney appeared as well. Diamond, however, did not appear for trial, and Diamond’s attorney told the General Sessions Court that Diamond felt obligated to attend the funeral of a close friend. There is no transcript of the hearing in the record on appeal. Apparently, however, Jackson Energy presented evidence that Diamond incurred the utility bills alleged in the complaint, that it had attempted to obtain payment on those bills, and that Diamond still owed the amount claimed by Jackson Energy. As a result, the General Sessions Court entered a judgment in favor of Jackson Energy and ordered Diamond to pay Jackson the sum of $9,587.37.

On August 1, 2003, Diamond filed a petition to rehear in the General Sessions Court. The petition alleged that he was “unavoidably absent” from the July 28, 2003 hearing, and that he had meritorious defenses to present upon a rehearing. This petition to rehear was filed with the General Sessions Court by Diamond pro se, but “with the knowledge of his attorney [who is] absent from his law office.” On August 6, 2003, the General Sessions Court entered an order denying Diamond’s petition, stating that it found “no basis to rehear this matter.” The General Sessions Court noted that “[t]he Defendant should appeal within the time period allowed by law if he disagrees with the July 28, 2003. Judgment entered by this Court.”

On August 18, 2003, Diamond’s counsel filed a notice of appeal to the Circuit Court of Madison County (“trial court”). On March 2, 2004, Diamond filed with the Circuit Court a motion to dismiss Jackson Energy’s lawsuit, alleging that it failed to state a claim upon which relief could be granted. In addition, Diamond asserted that his failure to appear at the scheduled General Sessions Court trial was excusable.

On March 4, 2004, Jackson Energy filed a motion with the Circuit Court to dismiss Diamond’s appeal. Jackson Energy maintained that the judgment entered by the General Sessions Court on July 28, 2003, was proper, and that Diamond had failed to appeal to Circuit Court within the ten-day time limitation prescribed in Tennessee Code Annotated § 27-5-108. Under Section 27-5-108, any person dissatisfied with a judgment of the General Sessions Court has ten days to file an appeal to the Circuit Court. Because the final judgment of the General Sessions Court was entered on July 28, 2003, Jackson Energy asserted, the August 18, 2003 appeal to Circuit Court was untimely.

On March 29, 2004, the Circuit Court entered an order dismissing Diamond’s appeal for “failure to file appeal bond within the time permitted by law.” The Circuit Court then ordered that the judgment of the General Sessions Court against Diamond be reinstated in the amount of $9,587.37, plus court costs. From that order, Diamond now appeals.

On appeal, Diamond argues that the Circuit Court erred in dismissing his appeal from General Sessions Court as untimely, because the ten-day time limitation for filing an appeal should have been tolled until the General Sessions Court decided his petition to rehear. Diamond asserts that “due to the general sessions court’s delay in deciding his Petition to Rehear, Diamond was precluded from pursing his appeal.” Under the statute, Diamond argues, he was required to file his appeal bond with the Circuit Court no later than August 9, 2003. However, because the General Sessions Court’s denial of his petition to rehear was not issued until August 6, 2003, meeting the August 7 ten-day deadline under the statute “was a functional impossibility.” Additionally, Diamond argues that Section 27-5-108 is unconstitutional in that it contains no tolling provision to stay the running of the ten-day period within which to file an appeal from General Sessions Court in cases in which the aggrieved party files a petition to rehear with the General Sessions Court prior to filing the appeal to Circuit Court.

We review the trial court’s findings of fact de novo on the record, presuming those findings to be correct unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d). In this appeal, however, the facts are undisputed and the issues presented are questions of law, which we review de novo, with no presumption of correctness. Id.; see Caldwell v. Wood, W2003-00303-COA-R3-CV, 2004 WL 370299, at *2 (Tenn.Ct.App. Feb.27, 2004).

Diamond first argues that the ten day period under Section 27-5-108 for filing an appeal from General Sessions Court began to run the day after the General Sessions Court entered its August 6, 2003 denial of his petition to rehear. Thus, if the ten-day time period began to run on August 7, 2003, his August 18, 2003 appeal to Circuit Court would be timely. In response, Jackson Energy argues that the ten-day time period for appeal in Section 27-5-108 should not be tolled by Diamond’s petition to rehear, because the General Sessions Court does not have the authority to set aside its own judgment. Because the General Sessions Court does not have the authority to set aside its own judgments, Jackson Energy argues, the ten-day period for appeal must begin to run when the General Sessions Court judgment is entered, and the filing of a petition to rehear would have no effect on the running of the appeal period.

In support of its argument, Jackson Energy cites Caldwell v. Wood, supra. In that case, the plaintiffs filed a complaint in General Sessions Court for breach of contract and other claims. At trial, the defendants failed to appear, and the General Sessions Court entered a default judgment in favor of the plaintiffs on July 12, 2002. On July 31, 2002, the defendants filed a motion to set aside the General Sessions default judgment, citing excusable neglect in failing to appear for trial. The General Sessions Court granted that motion. Caldwell, 2004 WL 370299, at *1. The plaintiffs filed a notice of appeal to the Circuit Court, appealing the General Sessions Court’s order setting aside its judgment. The Circuit Court held that the General Sessions Court did not have the authority to set aside its own judgment, and reversed its decision to do so. The Circuit Court further held that, because ten days had elapsed after the General Sessions Court’s judgment was entered on July 12, 2002, the jurisdiction of the General Sessions Court had ended, and the appeal to the Circuit Court was untimely. Id. The defendants appealed the decision of the Circuit Court. On appeal, the decision of the Circuit Court was upheld. The appellate court reasoned that Tennessee Code Annotated § 16-15-727, which authorizes the General Sessions Courts to “correct” its own judgments, does not authorize the General Sessions Court to set aside its judgments. Id. at *2. Thus, because the General Sessions Court did not have the authority to set aside its own judgment, the Circuit Court’s conclusion was affirmed. Id. at *3.

The holding in Caldwell is instructive in the instant case. The facts in Caldwell are distinguishable from those in the instant case because, in Caldwell, the motion to set aside was filed outside the ten-day time limitation for appeal to Circuit Court, and the General Sessions Court had long since lost jurisdiction over the case. In contrast, in the case at bar, the petition to rehear was filed within the ten-day time period for appeal to Circuit Court, and the denial of the petition to rehear was likewise filed within that time period. Thus, the question is whether a petition to rehear filed and decided by the General Sessions Court within the ten-day period for appeal tolled the period for appeal to the Circuit Court.

In the absence of specific statutory authority, the authority of the General Sessions Court ends when it enters a judgment in the case. “When a ... General Sessions Court renders a judgment in a case and adjourns, the court is at an end, and the court has no further power over it except what the statutes give.” Travelers Indem. Co. v. Callis, 481 S.W.2d 384, 385 (Tenn.1972). In Caldwell, we held:

Section 16-15-727 of the Tennessee Code Annotated clearly authorizes the General Sessions Courts to correct their judgments. The plain language of the statute, however, simply does not address the setting aside of judgments. Wood’s Floors cites no case in which this statute, or any other, has been deemed to authorize the General Sessions Courts to set aside them own judgments. See Gibson, 1999 WL 552879, at *1-2. In the absence of express statutory authorization, we must conclude that the General Sessions Court in this case was without authority to set aside its judgment.

Caldwell, 2004 WL 370299 at *3. In this case, Diamond’s petition to rehear sought to set aside the General Sessions Court judgment entered on July 28, 2003, in favor of Jackson Energy. Regardless of whether Diamond’s petition was filed within the ten-day period for appeal, the General Sessions Court had no statutory authority to grant the relief requested and the petition did not toll the appeal period. Thus, the ten-day period for seeking a de novo review in the Circuit Court began to run when the General Sessions final judgment was entered, and was not tolled by the petition to rehear. Because Diamond’s appeal was filed on August 18, 2003, outside the ten-day time period, the appeal was untimely and the appeal was properly dismissed by the Circuit Court. See id. at *2-*3.

Diamond also argues that he was denied due process of law because the General Sessions Court delayed ruling on his petition to rehear until the ten-day deadline for the filing of any appeal had nearly expired. The decision was rendered on August 6, 2003, and the deadline for filing an appeal was on August 7, 2003. Therefore, Diamond argues, he was unable to prepare and file his notice of appeal and post the required bond within the statutory period, and due process requires the tolling of the statute of limitations in this case.

We are unpersuaded that a tolling of the ten-day period for appeal is constitutionally required under these circumstances. In some cases, courts have determined that due process requires a tolling of the applicable limitations period, such as a case where a litigant was misled into believing that his counsel was continuing the appeals process on his behalf, or where mental incompetence prevented a litigant from having a reasonable opportunity to assert his claim in a meaningful way. See Williams v. State, 44 S.W.3d 464, 471 (Tenn.2001) (regarding the misled litigant); Seals v. State, 23 S.W.3d 272, 279 (Tenn.2000) (regarding mental incompetence). No such circumstances are present in this case. In the instant case, Diamond simply mistakenly presumed that the ten-day period for appeal to Circuit Court would be tolled by the filing of his petition to rehear in General Sessions Court. Due process does not require a tolling of the ten-day period for appeal in these circumstances.

We must also reject Diamond’s argument that Section 27-5-108 is unconstitutional on its face. He claims that the statute is constitutionally infirm because it does not include a provision to allow the period for appeal to Circuit Court to be tolled when a petition to rehear has been filed in the General Sessions Court. Diamond cites no applicable law in support of this argument, and we find it to be without merit.

All other issues raised herein are preter-mitted.

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant William T. Diamond, Jr., and his surety, for which execution may issue, if necessary.

      . The record indicates that Diamond sought another continuance prior to trial, but that the General Sessions Court refused to grant another continuance.

      . That statute provides:
      (a)(1) Any party may appeal from an adverse decision of the general sessions court to the circuit court of the county within a period of ten (10) days on complying with the provisions of this chapter.
      Tenn.Code Ann. § 27-5-108(a)(1) (2000 & Supp.2004).


source: Caselaw Access Project

author: Justice HECHT,

license: Public Domain

text:
    Wayne DOLCEFINO; KTRK Television, Inc.; Harry Florsheim; ABC, Inc.; CC Texas Holding Co.; and Steve Bivens, Petitioners, v. William STEPHENS and Ray Jordan, Respondents.
    No. 03-1013.
    Supreme Court of Texas.
    July 1, 2005.
    Rehearing Denied Feb. 3, 2006.
    David T. Moran, Charles L. Babcock, Robert P. Latham, Jackson Walker, L.L.P., Dallas, Andrew D. Graham, Jackson Walker, L.L.P., Houston, for petitioners.
    Lloyd E. Kelley, Lloyd E. Kelley & Associates, Houston, for respondent.
    R. David Broiles, Law Offices of Kirkley Broiles & Berryman, Fort Worth, for Merle Bull.
   Justice HECHT,

joined by Justice WAINWRIGHT, dissenting from the denial of the petition for review.

During a break in a continuing legal education seminar at a San Antonio hotel on July 10, 1997, four Houston city officials attending the seminar — Controller Lloyd Kelley, Deputy Controller William Stephens, Chief of Police C.O. Bradford, and police sergeant Ray Jordan — lounged beside a buffet table near a corner of a noisy courtyard, standing a foot or two apart, conversing quietly, but making no obvious effort to ensure that they could not be overheard. Two arm-lengths away, secretly recording them with a camera that looked like a pager, was a researcher for Houston ABC-TV affiliate KTRK, Steve Bivens.

KTRK reporter Wayne Dolcefino had been investigating Kelley for several weeks. At first, Dolcefino had been interested in a city contract to resolve “Y2K” matters that he believed the newly elected Kelley had helped steer to his campaign manager, Steven Plumb, who had been paid $26,000 for which he had produced a three-page report. But Dolcefino had also questioned Kelley’s work habits, surreptitiously recording him on personal errands during business horn's, including spending the afternoon at a water park with a female member of his executive staff and his two children.

Kelley learned of the courtyard recording on July 11, the day after it was made. Dolcefino’s reports on the Plumb contract aired a few days later, on July 16, 21, and 22. Dolcefino’s report on Kelley’s work schedule was broadcast on August 12 and again on August 15, this time including a portion of the courtyard recording showing Kelley, Stephens, and Bradford, but not Jordan. The recording, as broadcast, was copied from the “pager” camera and did not include any sound the camera may have recorded. The original “pager” recording was recycled or reused, and whether it, or any lost copy of it, contained any portion of the subjects’ conversations cannot be determined with certainty.

Kelley sued KTRK, Dolcefino, Bivens, and others, alleging defamation and invasion of privacy under several theories. On August 30, 1999, Kelley added a claim for violation of the Texas Anti-Wiretapping Act. The Act provides that “[a] party to a communication may sue a person who ... intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication”. “Communication” is defined as “speech”, and “interception” as “the aural acquisition of the contents of a communication ... without the consent of a party to the communication”, with certain exceptions. The trial court denied the defendants’ motions for summary judgment, but on interlocutory appeal, the court of appeals reversed and rendered judgment for the defendants. The court held in part that Kelley’s wiretapping claim was barred by the two-year statute of limitations.

Stephens filed this action against KTRK, Dolcefino, Bivens, and others (collectively “KTRK”) on August 26, 1999, four days before Kelley asserted his own time-barred wiretapping claims, and Jordan joined the action a month later. The trial court granted summary judgment for the defendants, and the court of appeals affirmed except for the plaintiffs’ wiretapping claim.

KTRK argues that Stephens’ and Jordan’s claims are barred by limitations. Stephens and Jordan do not dispute that the applicable limitations period is two years, that the courtyard recording made July 10, 1997 was broadcast on August 15, and that they did not sue until more than two years after the broadcast. They .argue that KTRK’s motion for summary judgment did not defeat the application of the discovery rule to delay accrual of their claims. If the discovery rule applies, limitations does not begin to run until a claimant knows or should know of his injury. But, for the discovery rule to apply, an injury must be inherently undiscovera-ble — that is, “by nature unlikely to be discovered within the prescribed limitations period despite due diligence.” If the injury is not of this nature, it is immaterial when the claimant knew or should have known of his injury. It may well be, as the court of appeals concluded, that although Stephens saw the broadcast of the courtyard tape, neither he nor Jordan, despite due diligence, discovered for weeks or months that their communications had been recorded. But the applicability of the discovery rule depends on the nature of the injury itself, not on the particular claimant’s circumstances. When a video recording has been broadcast on network television in the area in which the claimants reside, I doubt whether the existence of an audio component of the recording, though not broadcast, is inherently undis-coverable. We have emphasized that the discovery rule applies only in “rare cases”. I question whether this is one of those cases. The issue is certainly worthy of this Court’s consideration.

KTRK also argues that Stephens and Jordan impliedly consented to being recorded because they had no objectively reasonable expectation of privacy in a crowded, public, hotel courtyard. If consent is to be determined by such an objective standard, then there is no need in this case to resolve factual issues, contrary to the court of appeals’ conclusion. The predicate facts — the setting, the subjects’ movements, the location of the buffet table, the presence of others, the manner in which the subjects conversed — are all clearly reflected in the recording, as the court of appeals explained in more detail, and cannot be disputed. If, however, consent is to be determined by a subjective standard, then it would be important to say so. KTRK argues that the standard and its application must take into account the circumstances of this case: that public figures in a public place are complaining of media defendants’ recording of them for news broadcasts. If the Court believes that this is an unjustified intrusion by the press on public figures’ legitimate expectations of privacy, or that the matter is one for a jury to decide, these things, too, would be important to say. The standard for determining consent under the Anti-Wiretapping Act and its proper application are issues deserving of the Court’s attention.

I would grant the petition for review and set the case for argument.

      . 126 S.W.3d 120, 124, 135-136 (Tex.App.Houston [1st Dist.] 2003).

      . Id.

      . Dolcefino v. Randolph, No. 14-00-00602-CV, 2001 WL 931112, at *1 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (not designated for publication).

        . Id.

      . Id. at *11.

      . Dolcefino v. Randolph, 19 S.W.3d 906, 914— 915 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

      . Id. at 923; 126 S.W.3d at 127.

      . 126 S.W.3d at 128.

      . Tex. Civ. Prac. & Rem.Code §§ 123.001-.004.

      . Id. § 123.002(a)(1).

      . Id. § 123.001(1) ("'Communication' means speech uttered by a person or information including speech that is transmitted in whole or in part with the aid of a wire or cable.").

      . Id. at § 123.001(2) (" ‘Interception’ means the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of a party to the communication, but does not include the ordinary use of: (A) a telephone or telegraph instrument or facility or telephone and telegraph equipment; (B) a hearing aid designed to correct subnormal hearing to not better than normal; (C) a radio, television, or other wireless receiver; or (D) a cable system that relays a public wireless broadcast from a common antenna to a receiver.”).

      . Dolcefino v. Randolph, No. 14-00-00602-CV, 2001 WL 931112, at *1 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (not designated for publication).

      . Id. at *8-11.

      . 126 S.W.3d at 126; Dolcefino v. Randolph, No. 14-00-00602-CV, 2001 WL 931112, at *9 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (not designated for publication).

      . 126 S.W.3d at 138.

      . S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996) (emphasis added).

      . See id.; see also Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 735-737 (Tex.2001).

      . 126 S.W.3d at 128.

      . Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998).

      . 126 S.W.3d at 136.

      . Id.


author: SAM GRIFFITH, Justice.

text:
    Lionel SIMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 12-03-00379-CR.
    Court of Appeals of Texas, Tyler.
    Oct. 31, 2005.
    Rehearing Overruled Dec. 9, 2005.
    Discretionary Review Refused March 29, 2006.

      William M. House, Palestine, for appellant.
    Mark A. Calhoon, Palestine, Sue Ko-rioth, Dallas, for appellee.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

Lionel Simpson appeals his conviction for capital murder. In three issues, Appellant contends that the trial court erred in admitting certain evidence and that the evidence was insufficient to corroborate the testimony of the accomplice witnesses. We affirm.

BACKGROUND

After Geraldine Davidson, an eighty-three year old retired schoolteacher, was reported missing on January 26, 2000, her body was discovered in the Neches River. Appellant’s brother, Danielle Simpson, immediately became a suspect in Davidson’s disappearance and murder. On January 28, as the police searched a known drug house’ in an attempt to locate Danielle, they discovered Appellant. He was taken into custody because the officers had probable cause to believe that delinquent conduct was occurring in their presence or view. Because Appellant was a juvenile, he was taken to the juvenile detention center. The same day, Jennifer Simpson, an accomplice, made a voluntary statement to authorities implicating Appellant in Davidson’s murder. At a detention hearing in juvenile court on January 31, the court ordered that Appellant remain detained because he was accused of committing a felony offense and/or might be dangerous to himself or others if released. After the State petitioned the juvenile court for a discretionary transfer to adult criminal court, the court ordered a com-píete diagnostic study of Appellant. As a result, Mary Cox, Ph.D., conducted a psychological examination of Appellant. Cox testified at the transfer hearing, and the examination was admitted into evidence. The juvenile court waived its exclusive original jurisdiction as to the felony offense alleged and ordered that the case be immediately transferred to the appropriate criminal district court. Thereafter, Appellant was charged by indictment with the capital murder of Geraldine Davidson. Appellant pleaded “not guilty.”

The State presented approximately twenty-seven witnesses at trial. Two were accomplice witnesses. The first, Jennifer Simpson, testified that she pleaded guilty to Davidson’s murder and was sentenced to life imprisonment. At the time of Davidson’s murder, she was married to Appellant’s brother, Danielle. Jennifer testified that, on the morning of January 26, 2000, she, Danielle, and Edward “Pete” McCoy broke into Davidson’s house, while Davidson was out, in an attempt to steal money. When Davidson returned home, Danielle asked her for money, but Davidson stated that she had none. On Danielle’s instructions, Jennifer put tape across Davidson’s mouth, and Pete helped Danielle put Davidson in the trunk of Davidson’s car. The three stole forty dollars from Davidson’s purse and threw the purse and the contents of her car behind an old Wal-Mart, which was located between some apartments by a field. They also obtained and smoked some marijuana. Jennifer testified that the three spent the next few hours traveling to various towns and places in Davidson’s car. When they returned to Palestine, they parked the vehicle and walked to their house. At approximately 3:00 to 3:30 p.m., they walked back to the car with Christina Walker, Pete’s sister. As Christina got in the car, she heard Davidson kick the trunk. According to Jennifer, as they were driving back by their house, Christina asked to be dropped off. Jennifer, Danielle, and Pete then went to the Swantz Inn to pick up Appellant. Jennifer testified that Appellant asked Danielle if he “[did] it,” and Danielle responded “yeah.” Then, Appellant got in the vehicle and they traveled to a Jack-in-the-Box. Jennifer was sent inside to get food, and Appellant followed her in later, telling her to hurry. Jennifer testified that Appellant was wearing an orange toboggan and a Green Bay Packers jacket at the time.

After getting the food, they drove to Wal-Mart where Appellant bought heavy gray tape. Jennifer testified that Appellant and Danielle also talked about a river. They drove the vehicle to a dead-end spot because Appellant wanted to see Davidson. All of them got out of the vehicle, and Danielle opened the trunk. According to Jennifer, Appellant took Davidson from the trunk and threw her “sort of roughly” on the ground. Appellant “flipped” Davidson over, taped her hands and mouth, and then wound the tape around her head. Once back in Davidson’s car, they went to an old house where Appellant found a cinder block and put it in the trunk. She believed Appellant began tying the cinder block to Davidson’s leg. Jennifer stated that she heard “something like [Appellant] hitting her.” Once back in the vehicle, Appellant told them that he had hit Davidson and that “he never liked white folks anyway.” Jennifer testified that, to her knowledge, neither she, Pete, nor Danielle had hit Davidson.

At that point, they went to the river. Danielle backed the vehicle up to the river, and he and Appellant got out. Jennifer pushed the brake and heard them “messing” with Davidson. Someone told Pete to get out of the car to get a stick, and Pete got out of the car. Jennifer believed she saw both Appellant’s and Danielle’s arms move as if they were throwing something. After they left the river, they took Appellant to McDonald’s and to the house of his girlfriend, Occtayvia Clewis. Jennifer said that throughout the next two days, Danielle attempted to avoid the police and she had sporadic contact with Appellant. She was taken to the juvenile detention center after she voluntarily agreed to make a statement.

Pete, the other accomplice witness, testified that he pleaded guilty to capital murder and was sentenced to thirteen years in the Texas Youth Commission. Pete was Appellant’s and Danielle’s cousin. Pete testified that he accompanied Danielle and Jennifer to Davidson’s house to steal money. Pete’s version of Davidson’s kidnapping and murder was similar to Jennifer’s, although he denied helping Danielle put Davidson in the trunk of her car. Pete testified that when they picked up Appellant near the Swantz Inn, Danielle opened the trunk and showed Davidson to other persons, including Appellant. According to Pete, Appellant was wearing a Green Bay Packers jacket and orange toboggan. After Appellant saw Davidson in the trunk and before he got in the car, Pete heard Appellant tell Danielle “[ljet’s go kill her.” He testified, as Jennifer had, that Appellant took Davidson out of the trunk and “slammed” her on the ground and back into the trunk after “yank[ing]” the tape around her mouth and legs. Further, Pete testified that Appellant hit Davidson again. Pete also heard Appellant hitting Davidson after he put the cinder block in the trunk.

Once they were at the river, Appellant told Pete to get out of the car and he did. Pete testified that he did not comply when Appellant instructed him to get a stick. He also testified that, once Davidson was out of the trunk, Danielle kicked her in the face and threw the cinder block into the water. Then, Danielle and Appellant together swung Davidson and threw her in the river. According to Pete, Davidson was moaning and kicking when she hit the water. Danielle went to look for more money in the area where he had thrown Davidson’s purse. There he threw out the trash in the car, including the Jack-in-the-Box bag. Danielle then took Pete home. According to Pete, he later made a voluntary statement that Danielle picked him up in a car. In his statement, Pete said that, after traveling to another town, he asked to be taken home when he discovered that Davidson was in the trunk. He was eventually arrested after further investigation revealed that he had not been truthful. Pete identified a Green Bay Packers jacket in evidence as Appellant’s and identified himself, Jennifer, and Appellant in the January 26 Jack-in-the-Box surveillance tape.

At the conclusion of the trial, the jury found Appellant guilty of capital murder and was sentenced by the trial court to life imprisonment. This appeal followed.

Admissibility of Appellant’s LetteR

In his first issue, Appellant argues that the trial court erred in admitting a portion of a letter from Appellant to his girlfriend because the letter was not relevant.

Standard of Review and Applicable Law

We review a trial court’s ruling on admissibility under an abuse of discretion standard. West v. State, 121 S.W.3d 95, 100 (Tex.App.-Fort Worth 2003, pet. ref'd) (citing Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998)). We mil not reverse a trial court as long as its ruling was within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g); Reed v. State, 59 S.W.3d 278, 280 (Tex.App.-Fort Worth 2001, pet. ref'd). Evidence is “relevant” if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R. Evid. 401. In other words, evidence must satisfy two requirements to be relevant-materiality and probativeness. Cooper v. State, 95 S.W.3d 488, 490-91 (Tex.App.Houston [1st Dist.] 2002, pet. ref'd) (citing Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App.2001)). Evidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant. Montgomery, 810 S.W.2d at 376. To be relevant, the evidence need not by itself prove or disprove a particular fact. Id. It is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Id.

Analysis

The trial court admitted into evidence the following excerpt from a letter Appellant wrote his girlfriend while in jail:

[Anyway] my court day was pretty good they just ask me stuff like was I guilty are [sic] not I said not guilty witch [sic] I am I got another court day coming up but I don’t know what day but when I find out I’ll let you know[.]

The excerpt was material because it was a declaration made by Appellant regarding his guilt. His guilt or innocence is, in itself, a “fact of consequence” in determining whether he committed capital murder. See Miller, 36 S.W.3d at 507. The excerpt could have been read to mean that Appellant pleaded not guilty and was not guilty, or that he pleaded not guilty, but was guilty of the charged offense. Either reading could provide the jury with a “small nudge” towards determining whether Appellant committed the charged offense, a fact of consequence. See Montgomery, 810 S.W.2d at 376. Therefore, the excerpt was probative. Because the excerpt from Appellant’s letter was both material and probative, it was relevant. See Tex.R. Evid. 401. The trial court did not abuse its discretion by admitting the letter into evidence. Accordingly, Appellant’s first issue is overruled.

Admissibility of Appellant’s Statement

In his second issue, Appellant contends that the trial court erred in admitting a statement he made during a juvenile certification and competency examination. The State argues that Appellant waived any global statutory and state constitutional objections when he failed to clearly state these objections to the trial court and obtain rulings. Further, the State contends that Appellant’s statement was not the result of a custodial interrogation because it was a volunteered, spontaneous, and unexpected answer to an innocuous question.

Applicable Law

A juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court. Tex. Fam.Code Ann. § 54.02(a) (Vernon 2002). Prior to the hearing to consider transfer of the child, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. Tex. Fam.Code Ann. § 54.02(c), (d) (Vernon 2002). The sole purpose of the examination is to provide evidence for the certification hearing. Cantu v. State, 994 S.W.2d 721, 734 (Tex.App.-Austin 1999, pet. ref'd). When used only for its intended purpose, the examination is not a custodial interrogation. See id.

Notwithstanding the neutral nature of the psychological examination, the statements a juvenile utters during the examination are not automatically removed from the reach of the Fifth Amendment. Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981). If the examination exceeds its intended purpose and becomes a source of incriminating evidence against a defendant, the examination constitutes a custodial interrogation to which Fifth Amendment protections apply. Cantu, 994 S.W.2d at 734. If a juvenile is not adequately informed of his Fifth Amendment rights with respect to the diagnostic examination or that his testimony during that examination would be used against him in an adjudicatory proceeding, a waiver of his rights is ineffective. Cantu, 994 S.W.2d at 735; see also Estelle, 451 U.S. at 469, 101 S.Ct. at 1876.

The psychological examination, in itself, does not constitute a critical stage triggering Sixth Amendment protection. Hidalgo v. State, 983 S.W.2d 746, 755 (Tex.Crim.App.1999). Nor does a juvenile have a right to have counsel present during the examination. Cantu, 994 S.W.2d at 736. However, when the psychological examination is used both as the basis of the psychologist’s determination that the juvenile should be transferred and as a source of incriminating evidence introduced at trial, it serves a “dual purpose.” See Cantu, 994 S.W.2d at 736. In that instance, the diagnostic examination is a “critical stage” of the adversarial proceedings against a juvenile defendant warranting Sixth Amendment protection. Cantu, 994 S.W.2d at 736-37.

Appellant’s Objection and Cox’s Testimony

Here, the State requested that Mary Cox, Ph.D., a psychologist, be allowed to testify at trial regarding a statement Appellant made during the court-ordered psychological examination. The State argued that the purpose of the examination was not to elicit incriminating evidence for trial and that Appellant made a spontaneous statement. According to the State, Cox’s question was neutral and Appellant had been warned by a magistrate. Appellant argued that he was in custody and being interrogated by Cox. He could not waive his right to counsel because he did not have counsel when Cox began the examination. Further, Appellant contended he was not told that the diagnostic examination could be used against him at trial. The trial court found that Cox was not the police and that the examination was a neutral hearing for the purpose of evaluating Appellant in order to determine if he should be tried as an adult. Thus, the trial court overruled Appellant’s objection. The trial court stated that if the purpose of the examination were anything else, it would have sustained the objection.

Cox testified that she performed a psychological examination ' of Appellant on January 29, 2000. Although Cox informed Appellant of the purpose of the examination, she did not advise him that she could testify against him. At the first interview, Cox observed that Appellant was lucid, oriented, and of such intelligence that he understood what was happening. Cox then began questioning Appellant regarding his competency. Appellant stated that he did not know the charges against him. Cox asked Appellant, “Well, what do they tell you you’re charged with[?]” According to Cox, Appellant said, “They say that they’re going to charge me with capital murder, but they can’t do that. I know I’m going to have to do some time because I was there. I went to the river with them, but I didn’t get out of the car. I stayed in the back seat with Pete so they can’t get me for capital murder.” After Appellant’s statement, Cox resumed her questions, asking him if he knew who his attorney was and what the attorney’s job would be.

Analysis

At the outset, we note that Appellant does not separately argue his state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from the Fifth and Sixth Amendments to the United States Constitution. To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting his contentions under the state constitution. Moore v. State, 935 S.W.2d 124, 128 (Tex.Crim.App.1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995). Because Appellant failed to do so, we consider the admission of Cox’s testimony solely under the federal constitution. See Jackson v. State, 992 S.W.2d 469, 475 n. 8 (Tex.Crim.App.1999); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992).

Did the trial court err?

We first examine Cox’s testimony in fight of Appellant’s Fifth Amendment protections. As we noted in a previous opinion in this ease, on January 28, Appellant was given two comprehensive magistrate’s juvenile warnings, outside the presence of law enforcement officers, pursuant to section 51.095 of the Texas Family Code. See State v. Simpson, 105 S.W.3d 238, 239-40 (Tex.App.-Tyler 2003, no pet.); Tex. Fam.Cobe Ann. § 51.095(a)(1) (Vernon 2002 & Supp.2005). The next day, Cox conducted the diagnostic examination of Appellant during which he made the incriminating statement. There is no indication in the record that he was warned that statements he made during the diagnostic examination could be used against him at trial. See Simpson, 105 S.W.3d at 239—40; Cantu, 994 S.W.2d at 734. Additionally, Cox never informed Appellant that she could testify against him at trial using statements he made during the diagnostic examination.

The purpose of the examination was to provide evidence for the certification hearing. However, once the examination exceeded its intended purpose and became a source of incriminating evidence against Appellant, the diagnostic examination constituted a custodial interrogation to which Fifth Amendment protections applied. See Cantu, 994 S.W.2d at 734. Because there was no evidence that Appellant knew or reasonably should have known that his statements made during the diagnostic examination would be used against him at trial, he did not waive his Fifth Amendment rights by making the statement in question to Cox. See id. at 735. Therefore, the admission of Cox’s testimony at trial violated Appellant’s Fifth Amendment privilege against self-incrimination. See id. at 736.

We next consider Appellant’s Sixth Amendment rights. At the time of the diagnostic examination, Appellant was not represented by counsel. Moreover, Appellant had no right to have counsel present during the diagnostic examination. See id. However, this rule is restricted to cases in which the only purpose of the examination was to provide a determination of whether a juvenile should be certified as an adult. Id. Here, the use of Cox’s examination was not so limited. Instead, her examination was also used as the basis of her testimony in the guilt/innocence phase of Appellant’s trial. As such, the examination served a “dual purpose.” See id. Thus, the examination was a “critical stage” of the adversarial proceedings against Appellant and warranted Sixth Amendment protections. See id. at 736-37. Therefore, the admission of Cox’s testimony at trial also violated Appellant’s Sixth Amendment right to counsel.

Was Appellant harmed by the trial court’s error?

Because the trial court’s error was not “structural” and does not “def[y] analysis by harmless error standards,” it is subject to a harmless error analysis. Mendez v. State, 138 S.W.3d 334, 339-40 (Tex.Crim.App.2004) (quoting Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) and Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)). Thus, having found that the admission of Cox’s testimony constituted constitutional error, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a).

In conducting our analysis, we first observe that Appellant’s statement as recounted by Cox during the guilt/innocence phase simply placed Appellant in Davidson’s vehicle at the river. His mere presence at the river was not an element of the charged offense, nor a criminal act. See Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon 2003) (defining “capital murder” as an offense if a person commits murder by intentionally or knowingly causing the death of an individual and intentionally commits the murder in the course of committing or attempting to commit one or more specified offenses); Wooden v. State, 101 S.W.3d 542, 546 (Tex.App.-Fort Worth 2003, pet. ref'd) (concluding that, standing alone, proof that an accused was present at the scene of the crime is insufficient for conviction as a party). However, the evidence presented at trial showed that Appellant’s involvement went well beyond what he admitted to Cox. In fact, the following evidence showed that Appellant was an active participant in Davidson’s murder.

Pete testified that he heard Appellant tell Danielle “[l]et’s go kill her.” Jennifer testified that Appellant wrapped Davidson’s head and hands with duct tape, and Pete testified that Appellant wrapped her head and legs. They both testified that Appellant beat Davidson when he put the cinder block in the trunk. Jennifer stated that, once at the river, she and Pete stayed in the car while Appellant and Danielle left the vehicle and “messed” with Davidson. According to Jennifer, she believed she saw Appellant’s and Danielle’s arms move as if they were throwing something. Pete testified that he left the vehicle and observed Appellant and Danielle swing Davidson into the river. According to Pete, Davidson was moaning and kicking when she was thrown in the river.

Officer Charles Floyd Lanier, Jr., an administrative captain with the Palestine Police Department, testified that Davidson was found in the Neches River with duct tape wrapped around her mouth and head, her hands behind her back with duct tape on them, and a large cinder block tied to her ankles. Charles Parker, a latent fingerprint examiner with the Texas Department of Public Safety at the time of Davidson’s death, testified that he lifted fingerprints from the exterior, center, and left side of the trunk of Davidson’s vehicle. He identified four fingerprints as Appellant’s right ring finger, left middle finger, left little finger, and right thumb. These fingerprints were found in close proximity to Danielle’s fingerprints.

Dr. Jeffrey Barnard, chief medical examiner for Dallas County, Texas and director of the Southwestern Institute of Forensic Sciences, testified that Davidson’s hands were duet taped behind her back, her mouth was taped with duct tape, and each ankle was wrapped with a nylon-type rope cord and wrapped together, binding her legs. According to Barnard, Davidson suffered extensive blunt force injuries to her face, head, and body that included bruises, abrasions, and lacerations. Barnard testified that Davidson may have drowned, smothered, or been rendered unconscious from her injuries and, thus, was unable to lift her head out of the water. Further, Barnard stated that the environmental effects of hypothermia may have played a role in her death. Barnard believed that Davidson was alive when she was thrown into the river and died either from hypothermia or from finally submerging into the shallow water.

Christina Walker, Pete’s sister, testified that on January 26, 2000, Jennifer returned to their house and stated that they (Pete, Danielle, and Jennifer) took Davidson to the river and tied her up. Kenosha Walker testified that she was Pete’s sister and Appellant’s cousin. On January 26, Jennifer returned to their house • before 9:45 p.m. Kenosha asked Jennifer what they did with the lady in the trunk. According to Kenosha, Jennifer said that they, meaning Appellant and Danielle, “killed the bitch.”

Based upon this record, we cannot conclude that Appellant was harmed by the trial court’s error. Appellant, in his interview with Cox, admitted his presence at the scene of Davidson’s murder, but denied any involvement in the offense. Other evidence confirms his presence at the scene, but also portrays him as an active participant in the murder. Cox’s testimony was unnecessary to establish Appellant’s presence at the scene. The remaining evidence overwhelmingly supports a finding that Appellant participated in Davidson’s murder. Therefore, we conclude beyond a reasonable doubt that the trial court’s error in admitting Cox’s testimony did not contribute to Appellant’s conviction. See Tex.R.App. P. 44.2(a). Accordingly, Appellant’s second issue is overruled.

Sufficiency of the Non-accomplice Evidence

In his third issue, Appellant argues that the evidence was insufficient to corroborate the testimony of the accomplice witnesses.

Applicable Law

Article 38.14 of the Texas Code of Criminal Procedure states that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed.” Tex,Code CRiM. PROC. Ann. art. 38.14 (Vernon 1979). However, the corroboration is not sufficient if it merely shows the commission of the offense. Id. It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999). The corroborating evidence need only tend to connect the defendant to the offense. Id. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Id. All facts, both direct and circumstantial, may be examined in ascertaining whether sufficient corroboration exists. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997). Moreover, the accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Cathey, 992 S.W.2d at 462-63.

Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App.1999). The non-accomplice testimony need not directly link the accused to the commission of the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996). Evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence. McDuff, 939 S.W.2d at 613. However, while the accused’s mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Dowthitt, 931 S.W.2d at 249. Evidence of flight can be a corroborating circumstance because it demonstrates consciousness of guilt. Bradley v. State, 48 S.W.3d 437, 442 (Tex.App.-Waco 2001, pet. ref'd).

Analysis

In conducting our review, we eliminate from our consideration the testimony of the two accomplice witnesses, Jennifer Simpson and Edward “Pete” McCoy, and determine whether the remaining evidence and testimony tend to connect Appellant with the charged offense. See McDuff, 939 S.W.2d at 612. In addition to the evidence already described, Davidson’s son testified that she always parked her ear in the garage underneath the house, in the carport up a hill behind the house, or up the driveway. Thus, it is unlikely that Appellant would encounter and touch the trunk of Davidson’s vehicle under neutral circumstances.

In the January 26 surveillance videotape from Jack-in-the-Box, Appellant was shown entering the store in close proximity to Pete and Jennifer. Moreover, it appeared that Appellant was wearing a Green Bay Packers jacket and orange toboggan as described by Jennifer and identified by Pete. A Jack-in-the-Box sack containing a receipt dated January 26 at 5:14 p.m., an empty straw cover, napkins, and salt containers were recovered from a wooded area off a roadway. In this area, officers also discovered Davidson’s purse and other contents of her vehicle. Appellant’s apparent presence with the other accomplices and the proximity of the Jack-in-the-Box receipt to Davidson’s purse tend to link Appellant with her disappearance and murder. Dowthitt, 931 S.W.2d at 249. During a search for Danielle after he became a suspect in Davidson’s disappearance, Appellant was found hiding under a bed in the middle bedroom of a known cocaine house. Danielle was also discovered hiding in the house. Evidence of Appellant’s flight demonstrates a consciousness of guilt. See Bradley, 48 S.W.3d at 442.

Occtayvia Clewis testified that, on January 26, Appellant came to her apartment around “nighttime.” She admitted seeing Appellant in a Green Bay Packers jacket and identified the jacket in evidence as his. She could not recall if he was wearing an orange toboggan that night. Christina Walker testified that Jennifer told her that she, Pete, and Danielle took Davidson to the river and tied her up. Kenosha Walker testified that Jennifer told her that Appellant and Danielle killed the woman in the trunk. All this evidence tends to connect Appellant to the charged offense.

In summary, the non-accomplice evidence (1) places Appellant’s fingerprints on Davidson’s vehicle in close proximity to Danielle’s fingerprints, (2) places Appellant at Jack-in-the-Box on the date of the offense at the same time as Jennifer and Pete were there, (3) suggests that he showed a consciousness of guilt when he was found hiding in a known drug house with Danielle, (4) indicates that he wore a Green Bay Packers jacket and orange toboggan, identified as his, on the day of the offense as shown in the surveillance videotape, (5) places him at the river, and (6) suggests that he tied up Davidson and helped throw her in the river, where she died. This evidence sufficiently tends to connect Appellant to the charged offense pursuant to Article 38.14. See Tex.Code CRiM. PROC. Ann. art. 38.14; Cathey, 992 S.W.2d at 462. Accordingly, Appellant’s third issue is overruled.

Disposition

The judgment of the trial court is affirmed.

      . Tex. Fam.Code Ann. § 54.02(a) (Vernon 2002). The petition also alleged that Appellant committed a felony offense, i.e., the capital murder of Davidson.

      . Tex Fam.Code Ann. § 54.02(d) (Vernon 2002).

      . Tex. Fam.Code Ann. § 54.02(a), (c) (Vernon 2002).

      . Danielle, Jennifer, and Pete lived in the same house with Pete’s mother and family.


author: Justice MORRIS.

text:
    Juan DeLaGARZA, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 05-04-00829-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 3, 2005.
    Charles L. Hoedebeck, Charles L. Hoe-debeck, P.C., Irving, Thad D. Spalding, Durham & Pittard LLP, Dallas, for appellant.
    J. Mark Hansen, Vial Hamilton Koch & Knox, Dallas, for appellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   SUPPLEMENTAL OPINION ON REHEARING

Opinion by

Justice MORRIS.

In his motion for rehearing, Juan DeLa-Garza argues, among other things, that our original opinion in this case conflicts with the recent Texas Supreme Court opinion in Republic Underwriters Ins. Co. v. Mex-Tex, Inc. 150 S.W.3d 423 (Tex.2004). To clarify why the two opinions are not in conflict, we issue this supplemental opinion on rehearing.

In our original opinion, we concluded that State Farm Mutual Automobile Insurance Company did not violate the prompt payment deadlines set by article 21.55 of the Texas Insurance Code because the deadline to send payment was never triggered. See DeLaGarza v. State Farm Mut. Auto. Ins. Co., 175 S.W.3d 29, 32-33 (Tex.App.-Dallas 2005, no pet.h.) The record showed that State Farm accepted part of DeLaGarza’s insurance claim based on the information DeLaGarza provided the company. Id. The record also showed that State Farm offered to pay DeLaGarza the portion of the claim it had accepted within five days of receiving notice that DeLaGarza was willing to settle for the undisputed amount. Id. Because DeLa-Garza never notified State Farm that he was willing to accept the amount offered by the company, State Farm’s obligation to send the money never arose. Id.

The Texas Supreme Court opined in Republic Underwriters Ins. Co. v. Mex-Tex, Inc., that an insurance company could not delay making a payment under article 21.55 by insisting on a release “to tuhich it is not ultimately entitled.... See Republic Underwriters, 150 S.W.3d at 426 (emphasis added). Central to the Supreme Court’s analysis was the idea that an insurance company could not force an insured to settle for less than he was legally entitled to receive by conditioning prompt payment on a release of the insurer’s liability for further payment.

Contrary to the facts presented in Republic Underwriters, there was no showing in this case that DeLaGarza was-legally entitled to more money than the partial payment State Farm offered in exchange for the release. Although State Farm ultimately paid DeLaGarza the full amount of his claim to settle the dispute, DeLaGarza never established that State Farm was legally obligated under the terms of his policy to pay him the full amount he claimed. Absent a showing State Farm was not entitled to the release it sought, the rationale in Republic Underwriters is inapplicable.

We DENY Juan DeLaGarza’s MOTION FOR REHEARING.


author: BILL VANCE, Justice.

text:
    Gretchen Williams RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-05-00348-CR.
    Court of Appeals of Texas, Waco.
    Nov. 9, 2005.

      Kirk J. Oncken, Houston, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Introduction

Gretchen Williams Richardson appeals the trial court’s denial of her request to reduce her bail to $50,000. This appeal is brought proeedurally under Rule 31 of the Texas Rules of Appellate Procedure.

After her arrest for the murder of her husband, but before her indictment for that offense, Richardson filed an application for writ of habeas corpus, seeking a reduction of the original bail amount of $500,000. At a hearing, the trial court reduced her bail to $250,000. Richardson did not appeal that ruling.

After being indicted, Richardson filed “Defendant’s Second Application for Writ of Habeas Corpus Seeking Bail Reduction.” It was given an ancillary cause number. Richardson sought bail reduction to $50,000, which she alleged was the highest amount that she could meet. The trial court held a hearing and reduced bail to $200,000. This appeal followed.

Initially we address the State’s assertion that the Second Application was merely a motion to reduce bail and that we lack jurisdiction to review the trial court’s allegedly interlocutory ruling. See Benford, v. State, 994 S.W.2d 404, 408-09 (Tex.App.-Waco 1999, no pet.). But see Saliba v. State, 45 S.W.3d 329, 329 (Tex. App-Dallas 2001, no pet.) (holding that appeal of denial of motion to reduce bond is among “narrow exceptions” to general rule requiring conviction before a defendant may appeal); Bridle v. State, 16 S.W.3d 906, 907 n. 1 (Tex.App.-Fort Worth 2000, no pet.) (same). Richardson’s effort in the trial court was presented as a second application for writ of habeas corpus seeking bail reduction. It alleges an illegal confinement and restraint of liberty, constitutional violations, and statutory violations. See Tex.Code CRIM. PROC. Ann. art. 11.14 (Vernon 2005). In this appeal, the State argues that the application cannot be a second application for a writ of habeas corpus — and was only a motion to reduce bail — because it did not contain the allegations required by article 11.59 of the Code of Criminal Procedure. See TexCode CRIM. Proc. Ann. art. 11.59 (Vernon 2005). Because the State, which did not raise this complaint in the trial court, and the trial court both treated Richardson’s effort as an application for writ of habeas corpus, we will as well. We have jurisdiction of an appeal of a trial court’s denial of habeas corpus relief. E.g., Ex parte Davis, 147 S.W.3d 546 (Tex.App.-Waco 2004, no pet.).

Standard of Review

We review a trial court’s pretrial bail determination under an abuse-of-discretion standard. Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App. [Panel Op.] 1981); Davis, 147 S.W.3d at 548. A habeas applicant bears the burden of proving that her bail is excessive. Rubac, 611 S.W.2d at 849; Davis, 147 S.W.3d at 548.

Article 17.15 lists five factors to be considered in determining what bail is appropriate:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.

TexCode Crim. Proc. Ann. art. 17.15 (Vernon 2005).

Other pertinent factors include family and community ties, work history, length of residence in the county, prior criminal record, conformity with conditions of prior bonds, and any aggravating circumstances of the offense. Rubac, 611 S.W.2d at 849-50; Davis, 147 S.W.3d at 548.

We will review the trial court’s decision in light of the above factors.

Sufficiently High to Give Reasonable Assurance of Appearance

“[B]ail should be set high enough to give reasonable assurance that the defendant will appear at trial.” Ex parte McCullough, 993 S.W.2d 836, 837 (Tex.App.-Waco 1999, no pet.) (quoting Ex parte Brown, 959 S.W.2d 369, 371 (Tex.App.-Fort Worth 1998, no pet.)). A defendant’s ties to the community and work history bear on the adequacy of bail to give reasonable assurance he will appear. See id. at 837-38. A defendant’s compliance with the conditions of any prior bonds likewise bears on this issue.

Richardson did not testify. Her brother Jeff and her father George testified that they believed she would appear in court, based in part on her voluntarily turning herself in to the Robinson police. Richardson had lived in McLennan County (in Lorena, where she owned a home) for six years and has friends in the Waco area. She had been working as a real estate agent, but her license had been suspended because of her arrest. She and her deceased husband had a business on the side raising goats. Richardson has four children currently the subject of a custody suit pending in McLennan County, and she desired to be near them while her criminal case is pending. Richardson’s parents are retired and live near Houston.

Jeff testified that Woody, another brother, is a professional baseball player who earns $3 million per year. Woody has been paying Richardson’s legal fees, but he is not willing to help pay for a bond. And yet another brother, George, Jr., testified by affidavit that he and other members of his family were concerned that “she would very likely be a flight risk.” Andrea Bell, who was a friend of Richardson, testified that she believes that if Richardson were released on bond, she would harm herself.

The evidence on this factor is conflicting, and thus the trial court was within its discretion to weigh it in favor of a fairly high bail to ensure Richardson’s appearance.

Not So High as to Constitute an Instrument of Oppression

Bail set in a particular amount becomes “oppressive” when it is “based on the ‘assumption that [the accused cannot] afford bail in that amount and for the express purpose of forcing [the accused] to remain incarcerated pending [trial].’ ” Id, at 837 (quoting Ex parte Harris, 733 S.W.2d 712, 714 (Tex.App.-Austin 1987, no pet.)). The record contains nothing to indicate that the trial court rendered its decision on this basis, especially with the trial court having reduced bail from $500,000 to $250,000 and then to $200,000.

Nature and Circumstances of the Offense

Richardson is charged with murdering her husband John by shooting him. No other details of the crime are in the record before us. Bell testified that Richardson often joked about killing her husband before his murder, and eventually it became uncomfortable for Bell.

Murder carries a potential maximum sentence of life imprisonment and a fine of up to $10,000. See Tex. Pen.Code Ann. §§ 12.32, 19.02(c) (Vernon 2003). The potential life sentence and the evidence of premeditation suggest that a high bail amount is appropriate.

Ability to Make Bail

Although a defendant’s ability to make bail is a factor for consideration, inability to make bail, even to the point of indigence, does not control over the other factors. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Crim.App. [Panel Op.] 1980); Davis, 147 S.W.3d at 548.

Richardson’s father said that he and Jeff had raised $5,000 for a bond, and they had learned from commercial bondsmen that the bond fee would be ten percent of the bail amount. Jeff had been handling Richardson’s financial affairs since her arrest, and her bank account was overdrawn by $290. Her home is valued between $135,000 and $145,000, and the mortgage amount on that home is around $112,000. She has no property to sell that would have significant value, and she has exhausted all of her available resources.

The evidence on this factor tends to support a further reduction of bail.

Future Safety of the Community

In his affidavit, George, Jr. additionally stated that he and other members of his extended family are concerned for their safety if Richardson is released on bond. He and other family members are extremely concerned about the influence that Richardson would have on her minor children if she were released on bond, as he believes that Richardson has been attempting to pressure them to testify favorably and untruthfully in her behalf. George, Jr. does not believe that there are sufficient safeguards to insure the children’s safety. He concluded his affidavit with a request that the trial court not lower Richardson’s bail.

We agree with the State that the evidence pertinent to this factor tends to support the trial court’s setting bail in a higher amount.

Prior Criminal History

There is no evidence that Richardson has a prior criminal history, which indicates the lack of necessity for a particularly high bail. But on the other hand, evidence suggests that a relatively high bail is necessary because there is evidence that Richardson poses a flight risk.

Conclusion

After considering the factors of article 17.15 and the record before us, we cannot say the trial court abused its discretion in refusing to reduce Richardson’s bail to $50,000. See McCullough, 993 S.W.2d at 839. Accordingly, we overrule her sole issue and affirm the trial court’s ruling.

Chief Justice GRAY concurs in the result without a separate opinion.


author: FELIPE REYNA, Justice.

text:
    A'drana Gooden JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00307-CR.
    Court of Appeals of Texas, Waco.
    Nov. 9, 2005.

      Walter M. Reaves, West, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted A’drana Gooden Johnson of aggravated assault for shooting her husband Wayne and assessed her punishment at eleven years’ imprisonment and a $10,000 fíne. Johnson contends in four points that the court erred by: (1) excluding evidence that Wayne had committed violent acts against a former spouse; (2) permitting the State to impeach her on a collateral matter first raised by the State; (3) admitting evidence at punishment regarding her admission to a hospital after the guilty verdict and regarding her conduct in jail once discharged from the hospital; and (4) failing to submit a reasonable doubt instruction with regard to evidence of extraneous conduct offered at punishment. We will affirm.

Prior Violent Acts

Johnson contends in her first point that the court abused its discretion by excluding evidence that Wayne had committed acts of violence against a former spouse. The State responds that Johnson failed to preserve this issue for appellate review. We agree with the State.

Rule of Evidence 103(a)(2) provides that, if the trial court excludes evidence, a party may not complain of that ruling on appeal unless “the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.” Rule of Appellate Procedure 33.1(a)(1)(A) further requires the complaining party to “state[ ] the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” “Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial.” Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004).

Thus, preservation of error with regard to the exclusion of evidence involves a two-step process: (1) informing the trial court of the substance of the evidence sought to be admitted; and (2) informing the trial court of the legal grounds for the admission of the evidence. See Willover v. State, 70 S.W.3d 841, 845 n. 4 (Tex.Crim.App.2002) (“Whichever party complains on appeal about the trial judge’s action must, at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule in question and its precise and proper application to the evidence in question.”) (quoting 1 Steven Goode et al., Texas PRáctice: Guide to the Texas Rules op Evidence § 103.2 (3d ed.2002)).

Here, Johnson sufficiently advised the trial court of the substance of the evidence she sought to admit when her attorney explained that he wanted to question Wayne about an allegation from a prior divorce proceeding that Wayne “had struck [his former wife] and had hit her in the stomach.”

With regard to advising the trial court of the legal basis for admitting this evidence however, Johnson’s appellate argument does not comport with her trial theory. At trial, Johnson argued that this evidence was admissible under article 38.36 of the Code of Criminal Procedure. On appeal, Johnson argues that the evidence is admissible to show that the complainant was the first aggressor. See Torres v. State, 117 S.W.3d 891, 894 (Tex.Crim.App.2003).

Because Johnson’s theory of admissibility on appeal is different than the theory of admissibility she pursued in the trial court, she has failed to preserve this issue for appellate review. See Heidelberg, 144 S.W.3d at 537. Accordingly, we overrule Johnson’s first point.

Impeachment on Collateral Matter

Johnson contends in her second point that the court abused its discretion by permitting the State to present evidence of the reason Johnson was terminated from a former job because this is a collateral matter first raised by the State.

‘When a witness is cross-examined on a collateral matter, the cross-examining party may not then contradict the witness’ answer. A matter is collateral if the cross-examining party would not be entitled to prove that matter as part of his case tending to establish his plea.” Shipman v. State, 604 S.W.2d 182, 183-84 (Tex.Crim.App. [Panel Op.] 1980) (citations omitted). Conversely,

when a defendant voluntarily testifies as to his prior criminal record without any prompting or maneuvering on the part of the State’s attorney and in so doing he leaves a false impression with the jury, the State is allowed to correct that false impression by introducing evidence of the defendant’s prior criminal record.

Martinez v. State, 728 S.W.2d 360, 362 (Tex.Crim.App.1987); cf. Lopez v. State, 928 S.W.2d 528, 531-32 (Tex.Crim.App.1996) (evidence of prior misconduct inadmissible because State had prompted or maneuvered defendant into leaving false impression about his prior criminal history).

Thus, it has been held that “when a defendant voluntarily or nonresponsively testifies concerning extraneous matters on cross-examination, the State may correct any false impression presented by such answer.” Roberts v. State, 29 S.W.3d 596, 601 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); accord Mills v. State, 847 S.W.2d 453, 456-57 (Tex.App.-Eastland 1993, pet. ref'd); Burrow v. State, 668 S.W.2d 441, 443 (Tex.App.-El Paso 1984, no pet.).

Here, the State presented testimony that the handgun with which Johnson shot Wayne had been stolen in November 2001. Wayne testified that Johnson acquired the handgun “while she was working at the pawnshop” but that she did not purchase it “through the pawnshop.”

During the State’s cross-examination ■ of Johnson, the prosecutor asked her when she worked at the pawnshop. She replied that she worked there “when [she] first got married” to Wayne. When asked how long she worked there, she replied, “Maybe two months, three months until my husband — they got kind of upset because my husband would be on my job every day.” The prosecutor asked Johnson four additional questions about her statement that Wayne was the reason she lost her job. The prosecutor then asked her whether she bought the handgun in the pawnshop parking lot so it wouldn’t be traced to the pawnshop. Johnson denied this. After this, the prosecutor moved on to another line of questioning.

In rebuttal, the State called the pawnshop owner to testify about the reason Johnson’s employment was terminated. The owner testified over objection that Wayne came to the store only twice, that he never caused any problems at the pawnshop, that he had nothing to do with the termination of Johnson’s employment, and that Johnson’s employment was terminated because she declined to do all the . “chores” assigned to her.

Johnson contends that the State’s cross-examination of her focused on a collateral matter (the termination of her employment at the pawnshop) and was intended to prompt or maneuver her into leaving a false impression with the jury about the reason her employment was terminated. The State responds that the cross-examination was a proper attempt to connect Johnson to the handgun and that the pawnshop owner’s testimony was properly admitted because Johnson voluntarily and nonresponsively testified about the reason her employment was terminated without prompting or. maneuvering.

We agree with Johnson that the State’s cross-examination could be construed as an effort to maneuver her into leaving a false impression about the reason her employment with the pawnshop was terminated. The fact that the prosecutor asked Johnson four additional questions in an apparent attempt to solidify her testimony on this admittedly collateral matter lends further support to this interpretation.

However, the record also supports the State’s assertion that this fine of questioning was an attempt to connect Johnson to the handgun used in the crime. This line of questioning began with the testimony of the person from whom the handgun had been stolen. It continued with Wayne’s testimony that the handgun did not belong to him and that Johnson had obtained it while working at the pawnshop, though not “through the pawnshop.” Finally, the State established through cross-examination of Johnson that she worked at the pawnshop at about the same time the handgun was stolen, though she denied purchasing it.

We will affirm a trial court’s evi-dentiary ruling if it lies within “the zone of reasonable disagreement.” See State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App.2005). We have identified two reasonable interpretations of the State’s purposes for cross-examining Johnson about her employment at the pawnshop. The latter interpretation represents a wholly appropriate line of inquiry, relevant to the issue of whether the handgun belonged to Johnson, which is ultimately relevant to the issue of whether Wayne first threatened Johnson with the handgun or whether she was the first to employ deadly force.

Under this interpretation of the evidence, the State was not attempting to prompt or maneuver Johnson into testifying about the termination of her employment at the pawnshop, and Johnson’s response was voluntary and nonresponsive to the prosecutor’s question. Thus, we cannot say that the trial court’s decision to permit the State to impeach Johnson regarding this matter lay outside “the zone of reasonable disagreement.” See Roberts, 29 S.W.3d at 601; Mills, 847 S.W.2d at 456-57; Burrow, 668 S.W.2d at 443. Accordingly, we overrule Johnson’s second point.

Punishment Evidence

Johnson contends in her third point that the court abused its discretion by admitting evidence at punishment regarding her admission to a hospital after the guilty verdict and regarding her conduct in jail once discharged from the hospital.

Article 37.07, section 3(a)(1) of the Code of Criminal Procedures provides for the admission during the punishment phase of

any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible....

Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2005).

Here, the court admitted evidence that Johnson was found in a park and taken to a local hospital on the same morning that the punishment phase of her trial was scheduled to begin. She was treated at the emergency department and returned to the jail. The treating physician testified that she appeared nonresponsive when she was brought in by ambulance. He ran a series of tests and concluded that there was nothing wrong with her and that she was malingering.

Johnson was placed under observation in the jail. A jailer testified that, on the morning her punishment phase was to recommence, he came to her cell to notify her that she needed to get ready. A few moments later when he was observing her on a video monitor to be sure she did not fall, he saw her get up from her bed, walk across the cell to a sink, brush her teeth, then return to the bed without assistance.

Another jailer testified that, when he brought a wheelchair to transport Johnson to the courtroom, she nearly fell as she tried to get into the wheelchair. A female jailer and he had to dress Johnson because “[s]he couldn’t do anything.” This jailer concluded by testifying that, after Johnson was taken by wheelchair to a room near the courtroom, she was able to walk into the courtroom without any assistance.

Johnson filed an application for community supervision. Evidence of her willingness to comply with court orders (ie., to appear in court as scheduled) is relevant to the issue of whether she would comply with community supervision orders. See Najar v. State, 74 S.W.3d 82, 87-88 (Tex.App.-Waco 2002, pet. dism’d) (evidence of suitability for community supervision is relevant when the defendant has filed an application for community supervision); Peters v. State, 31 S.W.3d 704, 719 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (same).

Accordingly, we hold that the court did not abuse its discretion by admitting evidence regarding Johnson’s hospitalization and her subsequent conduct at the jail. Thus, we overrule Johnson’s third point.

Reasonable Doubt Instruction

Johnson contends in her fourth point that she suffered egregious harm because the court failed to instruct the jury that it could not consider evidence of extraneous crimes or bad acts unless such crimes or bad acts were shown beyond a reasonable doubt.

Article 37.07, section 3(a) requires such an instruction in the punishment charge regardless of whether the defendant requests it or objects to its omission. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). Because Johnson did not request such an instruction or object to its omission, she must show egregious harm. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004).

Texas courts have concluded that egregious harm has not been shown because of the omission of a reasonable doubt instruction when: (1) the defendant did not challenge the sufficiency of the evidence connecting him to the extraneous conduct at trial and/or on appeal; see McClenton v. State, 167 S.W.3d 86, 98 (Tex.App.-Waco 2005, no pet.); Bolden v. State, 73 S.W.3d 428, 432 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); Arnold v. State, 7 S.W.3d 832, 835 (Tex.App.-Eastland 1999, pet. ref'd); (2) the evidence connecting the defendant to the extraneous conduct is “clear-cut”; see Allen v. State, 47 S.W.3d 47, 52-53 (Tex.App.-Fort Worth 2001, pet. ref'd); and (3) the punishment assessed is at .the low end or in the middle of the available punishment range and/or significantly less than sought by the prosecution; see Tabor v. State, 88 S.W.3d 783, 789 (Tex.App.-Tyler 2002, no pet.); Bolden, 73 S.W.3d at 432; Allen, 47 S.W.3d at 53; Arnold, 7 S.W.3d at 835.

The evidence of extraneous conduct at issue here consists of: (1) Johnson’s “manipulation of her medical condition” (as stated in her brief); (2) a hospital lab test result showing that Johnson had marihuana in her system when she was hospitalized; and (3) a test result showing that her blood alcohol concentration was 0.03 grams when she was hospitalized.

With one exception, Johnson did not cross-examine the State’s witnesses who presented testimony about her hospitalization and subsequent conduct at the jail. Each of the witnesses positively identified Johnson as the person about whose conduct they were testifying. Johnson did not and does not challenge the accuracy of the test results. Her trial counsel briefly cross-examined the emergency department physician about his failure to seek a psychiatric • evaluation. Although the State placed great emphasis on the extraneous conduct in its closing argument, Johnson’s counsel did not mention it. The prosecutors both asked the jury to assess the maximum punishment of twenty years. As indicated however, the jury assessed punishment at eleven years.

Therefore, because Johnson did not challenge the sufficiency of the evidence connecting her to the extraneous conduct at trial and does not on appeal, because the evidence connecting her to the extraneous conduct is “clear-cut,” and because her sentence is in the middle of the available punishment range and almost half that sought by the prosecution, we conclude that she did not suffer “egregious harm” from the court’s failure to include a reasonable doubt instruction in the punishment charge. See McClenton, 167 S.W.3d at 98; Tabor, 88 S.W.3d at 789; Bolden, 73 S.W.3d at 432; Allen, 47 S.W.3d at 52-53; Arnold, 7 S.W.3d at 835. Accordingly, we overrule Johnson’s fourth point.

We affirm the judgment.

Chief Justice GRAY concurring in the result without a separate opinion.

      . Article 38.36 applies to "prosecutions for murder” and allows for the admission of "testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” TexCode Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).

      . Wayne testified that they married in September 2001.

      . This listing is not intended to be exhaustive.


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

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. Sherrill A. McDONALD, Appellee.
    No. 10-04-00267-CV.
    Court of Appeals of Texas, Waco.
    Nov. 9, 2005.
    Elliott Klein, Hoffman Kelley, Dallas, for appellant.
    Gary L. Rodriguez, Austin, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

American Home Assurance Company (“American Home”) sought judicial review of a workers compensation decision involving Sherrill McDonald (“McDonald”). McDonald filed a counterclaim for attorney’s fees under the Texas Labor Code. Section 408.221(c) provides for “reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier.” Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-05).

After six months of discovery, American Home non-suited its claim. McDonald then filed a Motion for Summary Judgment on the counterclaim for attorney’s fees, which the trial court granted. American Home now appeals from that judgment, arguing that McDonald does not meet the definition of “prevailing party” under the statute. To be entitled to attorney’s fees, it says, McDonald must have won a judg-menton the merits of the case'and not rely on American Home’s voluntary change in conduct' with the filing of its non-suit.

We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

While this appeal has been pending, the El Paso and Amarillo Courts of Appeals have decided this issue, both holding that a claimant in McDonald’s position is a “prevailing party” entitled to attorney’s fees under section 408.221(c). Pacific Employers Ins. Co. v. Torres, 174 S.W.3d 344 (Tex.App.-El Paso, 2005, no pet. h.); American Home Assurance Co. v. Vaughn, 2005 WL 2396833, 2005 Tex.App. LEXIS 7988 (Tex.App.-Amarillo Sept. 29, 2005, no. pet.h.). We agree with those decisions.

The trial judge properly awarded attorney’s fees to McDonald for trial and appellate expenses. We overrule the issue and affirm the judgment.

Chief Justice GRAY, concurring.

TOM GRAY, Chief Justice,

concurring.

Based on the analysis by Chief Justice Quinn of the meaning of “prevailing party” in Dean Foods Co. v. Anderson, 178 S.W.3d 449, 456 (Tex.App.-Amarillo no pet. h.), and Am. Home Assur. Co. v. Vaughn, No. 07-04-0349-CV, 2005 WL 2396833, at *3, 2005 Tex.App. LEXIS 7988, *7-9 (Tex.App.-Amarillo Sept. 29, 2005, no pet. h.), I concur in the judgment.

      . Specifically, American Home sought reimbursement on a claim of overpayment of benefits to McDonald.

      . But see Cigna Ins. Co. v. Middleton, 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied). The Cigna case was distinguished by both the El Paso and Amarillo Courts.

      . The same issue was first decided by the El Paso Court of Appeals in Pac. Emplrs. Ins. Co. v. Torres, 174 S.W.3d 344 (Tex.App.-El Paso, 2005, no pet. h.), and the same issue in a different fact pattern was reviewed by the Eastland Court of Appeals in Cigna Ins. Co. v. Middleton, 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied).


text:
    Kevin Jerome GILLIE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-05-00032-CR.
    Court of Appeals of Texas, Waco.
    Nov. 16, 2005.
    Discretionary Review Refused March 29, 2006.

      Wm. Reagan Wynn, Kearney Law Firm, Ft. Worth, for appellant.
    Bruce Isaaks, Denton County Dist. Atty., Denton, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Kevin Jerome Gillie of failure to stop and give information after being involved in an accident resulting in damage to another vehicle. The court sentenced Gillie to 180 days’ confinement and a $300 fine, suspended imposition of sentence, and placed Gillie on community supervision. Gillie contends in two points that: (1) the evidence is legally insufficient to prove that his car collided with any other vehicle on the occasion in question; and (2) the application paragraph of the jury charge is erroneous because it does not follow the statutory language for the offense charged. We will affirm.

The information alleges that, on or about the date in question, Gillie

did then and there intentionally or knowingly drive a vehicle that became involved in an accident resulting in damage to a vehicle, and the said defendant did thereafter, knowing said accident had occurred, intentionally or knowingly fail to give his name, address, registration number of the vehicle the defendant was driving, or the name of the defendant’s motor vehicle liability insurer to Lauren Evans, who was the driver of the vehicle collided with, and the damage to the vehicle collided with resulted in a pecuniary loss of $200 or more.

Legal Sufficiency

Gillie contends in his first point that the evidence is legally insufficient to prove that his car collided with any other vehicle on the occasion in question.

We measure legal sufficiency against “the hypothetically correct jury charge for the case.” Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (quoting Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997))). The hypothetically correct jury charge is authorized by the indictment or information and “encompasses [the] statutory elements of the offense.” See Gharbi v. State, 131 S.W.3d 481, 482-83 (Tex.Crim.App.2003) (quoting Fuller, 73 S.W.3d at 254); see also Gollihar, 46 S.W.3d at 254; Malik, 953 S.W.2d at 240. An allegation in an indictment or information which is “not a statutory element or ‘an integral part of an essential element of the offense’ ” may be disregarded. Gharbi, 131 S.W.3d at 483 (quoting Gollihar, 46 S.W.3d at 254).

The elements of the offense charged are: (1) an operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4) resulting in damage to a vehicle; (5) fails to stop or provide the required information. See Tex. TRAnsp. Code Ann. §§ 550.022(c), 550.023 (Vernon 1999); Steen v. State, 640 S.W.2d 912, 915 (Tex.Crim.App.1982); St. Clair v. State, 26 S.W.3d 89, 98-99 (Tex.App.-Waco 2000, pet. ref'd). Gillie’s challenge to the legal sufficiency of the evidence relates to the third element, whether he was involved in an accident.

With regard to this element, the defendant’s car need not collide with the victim’s car to be “involved” in an accident. See Steen, 640 S.W.2d at 914; Rivas v. State, 787 S.W.2d 113, 115-16 (Tex.App.Dallas 1990, no pet.). Rather, if the defendant causes an accident, then the defendant is “involved” in that accident, even if his car does not physically collide with others involved in the accident. Id.

It is undisputed that Gillie’s car did not “collide with” Evans’s pickup on the occasion in question. Rather, Gillie passed Evans, moved back into the lane right in front of her, then hit his brakes. This caused Evans to take evasive action, resulting in her pickup rolling over several times and coming to rest in a ditch.

It could be inferred from the “collided with” language used in the information that the State was alleging that Gillie’s and Evans’s vehicles collided. Nevertheless, the details of the accident are not “a statutory element of the offense,” just as the name of a victim is not. See Fuller, 73 S.W.3d at 254. Thus, we may disregard the “collided with” allegation in assessing the sufficiency of the evidence. See Gharbi, 131 S.W.3d at 483.

One of the passengers in Evans’s pickup identified Gillie as the driver of the car which stopped abruptly in front of them, leading to the accident. An employee of the dealership which owned the car Gillie was driving told the detective that Gillie was driving the car on the date in question. Gillie himself told the detective in a noncustodial interview that he had been driving in the vicinity of the accident at the pertinent time and he described a series of events similar to that which Evans and her passengers testified happened immediately before the accident. Gillie also told the officer that he exited the highway right after this incident to see if an accident had happened, just as an eyewitness to the accident testified that he had.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could find beyond a reasonable doubt that Gillie was involved in an accident. See Steen, 640 S.W.2d at 914; Rivas, 787 S.W.2d at 115-16. Accordingly, we overrule Gillie’s first point.

Jury Charge

Gillie contends in his second point that the application paragraph of the jury charge is erroneous because it does not follow the statutory language for the offense charged.

The abstract instructions in the charge properly instructed the jury regarding the pertinent statutory definitions for the offense charged. For example, the charge quoted section 550.022 which establishes the duties which must be followed by a driver involved in an accident involving damage to a vehicle. Namely, the driver must

(1) immediately stop the vehicle at the scene of the accident or as close as possible to the scene of the accident without obstructing traffic more than is necessary;
(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and
(3) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.

Tex. TRAnsp. Code Ann. § 550.022(a) (Vernon 1999).

As this Court explained in St. Clair, section 550.022(a) lists alternative statutorily-defined manners in which a defendant may commit the fifth element of the offense, namely, failing to “stop” or provide the required information. 26 S.W.3d at 99. Thus, the fifth element is satisfied by evidence that the defendant:

(1) failed to immediately stop his vehicle at the scene or as close to the scene as possible;
(2) failed to immediately return to the scene if he did not stop there; or
(3) failed to remain at the scene until he had given his name and address, the registration number of his vehicle, and the name of his liability insurer to any others involved in the collision.

See id.

However, the application paragraph does not use the language of section 550.022 to describe Gillie’s conduct after the accident. Rather, the application paragraph authorized a conviction if Gillie “did ... intentionally or knowingly leave the scene of said accident, without giving [the information required by section 550.023(1) ].” We construe the application paragraph to have required the jury to find that Gillie committed the offense by “fail[ing] to remain at the scene until he had given his name and address, the registration number of his vehicle, and the name of his liability insurer to any others involved in the collision.” See Tex. Transp. Code Ann. §§ 550.022(a)(3), 550.023(1); St. Clair, 26 S.W.3d at 99.

“When we review a charge for alleged error, we must examine the charge as a whole instead of a series of isolated and unrelated statements.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App.1995); accord Taylor v. State, 148 S.W.3d 592, 594 (Tex.App.-Fort Worth 2004, pet. ref'd); Hanks v. State, 104 S.W.3d 695, 700 (Tex.App.-El Paso 2003), aff'd, 137 S.W.3d 668 (Tex.Crim.App.2004).

The term “leave the scene” is synonymous with the term “fail to remain at the scene.” If a person leaves the scene of an accident, he has failed to remain there. The abstract portion of the charge gave the jury the precise statutory definitions applicable to this case. The application paragraph used synonymous language.

Viewed as a whole, we hold that the charge is not erroneous. See Taylor, 148 S.W.3d at 595; Fowler v. State, 126 S.W.3d 307, 309-10 (Tex.App.-Beaumont 2004, no pet.). Accordingly, we overrule Gillie’s second point.

We affirm the judgment.