author: BOB McCOY, Justice.

text:
    John Ross EWING, Appellant v. The STATE of Texas, State.
    No. 2-03-424-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 3, 2005.

      Don Davidson, Bedford, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of Appellate Division, Anne Swenson, David
    M. Curl, Mitch Poe, Alana K. Minton, Fort Worth, for Appellee.
    PANEL F: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

Appellant John Ross Ewing, a former Haltom City police officer, was convicted by a jury of three counts of sexually assaulting a sixteen-year-old boy whom he had met through the Haltom City Police Department’s Explorers program, in which Haltom City police officers serve as advis-ors to high school students interested in learning about law enforcement. On appeal, Appellant contends that the trial court erred by foreclosing voir dire questioning regarding Appellant’s homosexuality, by admitting evidence of extraneous acts without proper notice, by overruling objections to the State’s sentencing argument, and by imposing consecutive, rather than concurrent, suspended sentences on the second and third counts. We will reverse and remand only the portion of the judgment imposing consecutive suspended sentences; in all other respects, we will affirm.

I. TRIAL Court’s Limitation of Voir Dire

During voir dire, Appellant’s attorney attempted to question a prospective juror on his views regarding Appellant’s homosexuality in the following exchange:

[Appellant’s Attorney]: Would you be more apt, even if the State put evidence up here that was almost there, but not quite, would you be less inclined to give
[Appellant] the benefit of the doubt because [of] his lifestyle?
[The State]: Your Honor, I’m going to object. He is attempting to bind the jury and — ■
THE COURT: Sustained.
[Appellant’s Attorney]: Would you be, in any case involving an alleged homosexual or homosexual, would you be more inclined or less inclined to believe they were guilty of an offense?
[The State]: Objection, binding, Your Honor.
THE COURT: Sustained.

The trial court has broad discretion over the process of selecting a jury, and it abuses its discretion only when it prohibits a question about a proper area of inquiry. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002); Harris v. State, 122 S.W.3d 871, 878 (Tex.App.-Fort Worth 2003, pet. ref'd). Generally, a question is improper if it attempts to commit a prospective juror to a particular verdict based on particular facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App.2001). Such “commitment questions” ask prospective jurors to resolve, or to refrain from resolving, an issue in the case a certain way after learning a particular fact. Id. at 179-80. .

Not all commitment questions are improper, however. A commitment question is permissible when it is designed to elicit an answer that could give rise to a challenge for cause. Id. at 182. For example, when the law requires a certain type of commitment from jurors, the attorney may pose a commitment question that asks the prospective jurors whether they can follow the law in that regard. Id. at 181. Appellant contends that his questions were proper because they asked the prospective juror whether he could follow the law regarding the burden of proof in the case of a homosexual defendant.

As the trial judge explained to the venire panel, the law requires the State to prove beyond a reasonable doubt that a defendant is guilty of an offense. See Jones v. U.S., 526 U.S. 227, 232, 119 S.Ct. 1215, 1219, 143 L.Ed.2d 311 (1999); Weaver v. State, 87 S.W.3d 557, 560 (Tex.Crim.App.2002), cert. denied, 538 U.S. 911, 123 S.Ct. 1491, 155 L.Ed.2d 234 (2003); Tex. Code Ceim. Peoc. Ann. art. 38.03 (Vernon Supp.2004-05). However, Appellant’s questions were not calculated to elicit a commitment from the juror regarding following the law on the burden of proof. A question that gets a juror to admit that he or she may be “less inclined” to lean the defendant’s way is not the same as a question that gets the juror to admit that he or she would not require the State to prove its ease beyond a reasonable doubt. Instead, it seeks imprecise, vague information that reveals nothing about the juror’s views on the burden-of-proof issue in the case. Accordingly, because “[t]he trial court is within its discretion to prevent fishing expeditions during voir dire that may extend jury selection ad infinitum,” Barajas, 93 S.W.3d at 42, the trial court did not abuse its discretion in refusing Appellant’s commitment questions that would not have revealed any useful information in formulating a challenge for cause. See id; Standefer, 59 S.W.3d at 183. We overrule Appellant’s first issue.

II. Trial Court’s Admission of Extraneous Bad Acts

Appellant next complains that the trial court erred in allowing a State’s witness to testify about extraneous bad acts committed by Appellant because the State provided insufficient notice of its intent to offer this testimony as required by article 87.07 of the Code of Criminal Procedure. This notice requirement is triggered upon a request to the State by the defendant:

On timely request of the defendant, notice of intent to introduce evidence under this article [of extraneous crimes or bad acts] shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. ... The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Tex.Code Ceim. PROC. Ann. art. 37.07, § 3(g) (Vernon Supp.2004-05).

Appellant concedes that the record does not contain the request to the State required by article 37.07. Despite the absence of a request, the State filed a notice of intent to introduce extraneous-offense evidence and supplemented this notice on the day of trial. Appellant argues that the State’s notice and supplement show either that he did properly request notice from the State, even though the notice is not in the record, or that the State interpreted his discovery motion as including such a request.

First, Appellant’s speculation about a possible notice outside the record cannot support his issue on appeal. See Burks v. State, 904 S.W.2d 208, 209-10 (Tex.App.Fort Worth 1995, no pet.) (“It is well-settled that the appellant bears the burden of providing the appellate court with a record sufficient to show error requiring reversal.”). Second, Appellant’s discovery motion was insufficient to trigger the State’s duty to provide notice. When the State called the witness to testify, Appellant objected and directed the trial court to a request in his motion for discovery asking the court to order the State to produce “[a]ll evidence in possession of, or within the knowledge of, the state or any of its agencies, including impeachment evidence, which is favorable to Defendant and material either to guilt or to punishment.”

Initially, we note that this request does not ask for extraneous-offense evidence because such evidence is not “favorable to” Appellant. Furthermore, this motion was addressed to the trial court, not to the State, and Appellant did not secure a ruling from the court on this motion. Therefore, regardless of any interpretation the State may have assigned to Appellant’s discovery motion, the motion did not comply with the requirements of article 37.07. As a result, the State had no duty to provide notice of its intent to present evidence of extraneous crimes or bad acts. See Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App.1998) (holding defendant’s motion requesting the court to order the State to provide notice of intent insufficient to trigger notice requirement of article 37.07); Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(g) (specifying that the defendant’s request must be made to “the attorney representing the state”); see also Simpson v. State, 991 S.W.2d 798, 801 (Tex.Crim.App.1998) (holding defendant’s motion requesting the court to order the State to provide notice of intent to offer evidence of other crimes, wrongs, or acts insufficient to trigger notice requirement of Rule 404(b)). We overrule Appellant’s second issue.

III. Trial Court’s OVERRULING Objections to State’s Jury Argument

In his third and fourth issues, Appellant challenges remarks made by the State during its arguments to the jury in the sentencing phase of trial. Appellant claims that these statements were unsupported by the evidence and were an attempt to present new, harmful facts to the jury. Upon reviewing the record, we conclude that even if the trial court erred in overruling Appellant’s objection to these statements, any error was harmless.

Appellant first complains of the State’s comment that “Paul Bents [the victim] was not a single incident. It was not something that he just ended up as a victim of circumstance. This man is a predator. He sought out a profession that enabled him to gain the trust of children and abuse them.” Proper jury argument includes reasonable deductions drawn from the evidence presented at trial. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000). While there was evidence that police officers hold a position of authority and trust in the community and with teenagers, that the tickets Appellant issued went predominantly to males between the ages of sixteen and twenty-five, and that Appellant made sexual advances toward other teenagers besides the victim in this case, there was no evidence that Appellant had inappropriate interest in or contact with children before he became a police officer or that Appellant’s motivation at the time he became a police officer was to prey on children. Accordingly, the State’s argument was not a reasonable deduction from the evidence and was not proper.

However, the trial court’s erroneous overruling of Appellant’s objection to this argument is not reversible error unless it affected Appellant’s substantial rights. Tex.R.App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). In determining whether Appellant’s substantial rights were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct. Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.

While there were no measures taken to cure this remark, the degree of the State’s misconduct was mild in this instance. Appellant contends that this remark gave the jury the impression that the State was in possession of additional facts that convinced the State’s attorney that Appellant was a “conniving sexual predator and a devious liar.” However, the jury was instructed to consider only the evidence before it; the jury heard all the evidence presented at trial and was therefore in the position to recognize that no testimony was presented that supported the State’s argument. Moreover, there was evidence presented in the punishment phase of trial that Appellant sexually assaulted another teenage boy in addition to the victim and that he sought to have sex with two other teenagers. Given the strength of the evidence supporting Appellant’s sentence, we hold that any error associated with the State’s comment on Appellant’s motivation for becoming a police officer was harmless.

Next, Appellant complains of the State’s comment that he was “a collector of boys’ IDs” and kept “a box of boys’ driver’s licenses in his apartment, or in his bag, wherever he liked to keep it.” Appellant contends that this statement directly contradicts his unrebutted testimony that he “did have a box full of driver’s licenses, but had a variety of people in there. It also had alien cards, fake IDs, female driver’s licenses.” However, counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. See Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App.1996).

Appellant admitted that he had a “bad habit” of forgetting to return driver’s licenses to their owners after ticketing them, and he also admitted that Haltom High School was his “fishing hole” for writing tickets to high school students and that the recipients of his citations were predominantly males aged sixteen to twenty-five years old. Accordingly, it was a reasonable deduction from the evidence that because Appellant issued the majority of his citations to young males, then the majority of the IDs he kept after issuing the citations would be those of young males. Therefore, the trial court did not err in overruling Appellant’s objection to this portion of the State’s closing argument. Furthermore, for the reasons mentioned above, any possible error is outweighed by the strength of the evidence in favor of the punishment assessed. We overrule Appellant’s third and fourth issues.

V. Trial Court’s Cumulation op Suspended Sentences

Finally, Appellant argues in his fifth issue that the trial court erred in imposing cumulative sentences. The jury returned a guilty verdict on all three charged counts of sexual assault of a child, assessed punishment at 20 years’ confinement on the first count and 10 years’ confinement for each of the second and third counts, and recommended suspension of the sentences for the second and third counts. The trial court’s judgment ordered the suspended sentences for the second and third counts to run consecutively, effectively imposing suspended sentences totaling twenty years.

Appellant asserts that the trial court’s judgment violates article 42.08 of the Code of Criminal Procedure, which provides that when the court imposes consecutive sentences, “the cumulative total of suspended sentences in felony cases shall not exceed 10 years.” Tex.Code Crim. PROC. Ann. art. 42.08(a). The State concedes that the cumulative sentence violates article 42.08, but it argues that the judgment is nevertheless allowed by section 3.03 of the Penal Code, which authorizes the imposition of consecutive sentences for sexual assaults against juveniles but imposes no limitation on the cumulative years of suspended sentences. Tex. Penal Code Ann. § 3.03(b)(2)(A) (Vernon 2003).

However, these two statutes cannot be read independently of each other. Instead, article 42.08 of the Code of Criminal Procedure establishes the trial court’s general authority to order consecutive sentences, and the overlay of section 3.03 of the Penal Code limits this authority when multiple offenses arising out of the same criminal episode are tried in a single criminal action (unless an exception in section 3.03(b) applies). See Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App.1993), overruled on other grounds by Ex Parte McJunkins, 954 S.W.2d 39, 41 (Tex.Crim.App.1997); LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App.1992); Tex.Code CRIM. PROC. Ann. art. 42.08; Tex. Penal Code Ann. § 3.03. Accordingly, the trial court had no authority to order consecutive suspended sentences totaling twenty years because article 42.08 of the Code of Criminal Procedure prohibits imposing consecutive suspended sentences when the cumulative term of the suspended sentences exceeds ten years. See Tex.Code CRim. Proc. Ann. art. 42.08(a). We sustain Appellant’s fifth issue.

VI. Conclusion

Having sustained Appellant’s fifth issue only, we are urged by the State to reform the judgment and order the suspended sentences to run concurrently following Appellant’s completion of the twenty-year sentence from the first count. However, the trial court has discretion either to order the sentences on the second and third counts to begin when the twenty-year sentence has ceased to operate or to order the sentences all to run concurrently. See Tex.Code Crim. Proc. Ann. art. 42.08(a). Accordingly, we reverse only that portion of the trial court’s judgment ordering the ten-year suspended sentences on counts two and three to be served consecutively and remand for rendition of judgment in compliance with article 42.08 of the Code of Criminal Procedure. In all other respects, we affirm the trial court’s judgment.

      . Because the State does not appear to dispute Appellant’s claim that these voir dire questions were commitment questions, we assume, without deciding, that the questions requested the juror to decide an issue in the case a certain way and therefore qualified as ‘'commitment questions.” Cf. id. (stating that a question asking the jurors if they could be "fair and impartial” if the victim were a nun was not a commitment question because it did not ask the prospective jurors to resolve or refrain from resolving any issue).

      . Rule 404(b) provides that evidence of other crimes, wrongs, or acts may be admissible for purposes other than proving a person’s character "provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.” Tex.R. Evid. 404(b).

      . The State also argues that the statement, "He sought out a profession that enabled him to gain the trust of children and abuse them,” is proper because it is literally true-Appellant did seek to be a police officer, and being a police officer placed him in a position of trust from which he had the opportunity to abuse children. Read in context, however, this statement was clearly part of the State's overall argument that Appellant was a "predator” whose actions were planned and calculated to abuse children.

      . The general rule imposed by section 3.03(a) is that sentences for offenses arising out of the same criminal episode prosecuted in a single criminal action must run concurrently. Section 3.03(b) lists offenses that are exceptions to this general rule, including sexual assaults committed against a victim younger than seventeen years of age. If one of these exceptions applies, the court may impose sentences to run concurrently or consecutively. Tex. Penal Code Ann. § 3.03.

      . As a rule of statutory interpretation, when two statutes cover the same general subject matter or share a similar purpose or object, we construe the statutes so as to harmonize any perceived conflict and give effect to all the provisions of each statute, if possible. See Cheney v. State, 755 S.W.2d 123, 126-27 (Tex.Crim.App.1988).


source: Caselaw Access Project

author: JOHN CAYCE, Chief Justice.

license: Public Domain

text:
    Cliff Neal MULLICAN, Appellant v. The STATE of Texas, State.
    No. 2-04-142-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 3, 2005.

      Andrew Ottaway, Granbury, for Appellant.
    Robert T. Christian, Dist. Atty. for Hood County, Granbury, Angela S. Goodwin, Asst. Dist. Atty. for Hood County, Asst. Atty. Gen., Austin, for Appellee.
    PANELA: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Appellant Cliff Neal Mullican appeals his conviction for possession and promotion of child pornography. In a single point, appellant contends that the trial court erred in denying his motion to suppress. Appellant argues that the trial court should have suppressed the pornographic images of children taken from his computer because they were personal writings not subject to seizure with an eviden-tiary search warrant. We will affirm.

In October 2003, a detective from the New York Police Department’s Computer Investigation and Technology Unit notified the Texas Attorney General’s Cybercrime Unit that child pornography was being disseminated from an Internet Protocol («IP”) addregg ⅛ Granbury, Texas. The IP address was traced to appellant’s roommate. A search warrant authorizing the seizure of computer hardware, software, peripherals, files, and three specific images of child pornography from the residence appellant shared with his roommate was obtained and executed. During the search, law enforcement seized appellant’s hard drives and diskettes, which contained approximately one thousand images of child pornography.

Appellant was charged with three counts of promotion of child pornography and seven counts of possession of child pornography. The trial court denied appellant’s motion to suppress the pornographic images of children seized under the search warrant. A jury found him guilty of the offenses charged and assessed punishment at twenty years’ incarceration for promotion of child pornography and ten years’ incarceration for possession of child pornography.

Appellant argues that the trial court should have suppressed the pornographic images of children taken from his computer because they were personal writings not subject to seizure with an evidentiary search warrant issued under article 18.02 of the Texas Code of Criminal Procedure. The state argues that pornographic images of children do not constitute personal writings and that, even if they did, the personal writing exception would not apply because the search warrant was not “evi-dentiary.”

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); Harrison v. State, 144 S.W.3d 82, 85-86 (Tex.App.-Fort Worth 2004). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Best, 118 S.W.3d at 861-62. However, we review de novo a trial court’s rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53; Harrison, 144 S.W.3d at 86. Because appellant’s point does not turn on the credibility and demeanor of witnesses, we will review the trial court’s denial of appellant’s motion to suppress de novo.

Article 18.02 of the code of criminal procedure sets forth the rules governing the issuance of search warrants in Texas. See Tex.Code Chim. PROC. Ann. art. 18.02. Search warrants may issue for any of the nine items listed in sections one through nine of article 18.02. Id. Among the items listed is “any property the possession of which is prohibited by law.” Id. art. 18.02(8).

A search warrant may also be issued under article 18.02(10) to search for and seize “property or items, except the personal writings of the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” Id. art. 18.02(10). A search warrant issued under this article is referred to as an “evidentia-ry warrant.” See Lindley v. State, 736 S.W.2d 267, 274 (Tex.App.-Fort Worth 1987, pet. ref'd); Scott v. State, 868 S.W.2d 430, 432 (Tex.App.-Waco 1994, pet. ref'd).

The pornographic photographs seized in this case constituted “property the possession of which is prohibited by law,” which may be the subject of a warrant issued under article 18.02(8). The photographs may also be characterized as “property or items ... constituting evidence of an offense.” Tex.Code CRIM. PROC. Ann. art. 18.02(10). They do not, however, constitute “personal writings of the accused.” Id. Personal writings refers to writings like diaries, memos, and journals that were not intended by the writer to be published to third parties, Reeves v. State, 969 S.W.2d 471, 486 (Tex.App.-Waco 1998, pet. ref'd), and personal, nonbusiness letters, Nikrasch v. State, 698 S.W.2d 443, 448 (Tex.App.-Dallas 1985, no pet.). These forms of personal written expression do not include pornographic photographs of children.

We hold that the pornographic photographs of children found in appellant’s computer were properly seized under article 18.02 of the code of criminal procedure and were not appellant’s personal writings. Accordingly, we overrule appellant’s sole point and affirm the trial court’s judgment.

      . See Tex.Code Crim. Proc. Ann. art. 18.02(10) (Vernon Supp.2004-05). Evidence obtained in violation of article 18.02 is not admissible as evidence against the accused in the trial of any criminal case. Id. art. 38.23.

      . Tex.Code Crim. Proc. Ann. art. 18.02(8). Possession of child pornography is a third-degree felony, and the promotion of child pornography or possession of child pornography with the intent to promote it is a second-degree felony. Tex Penal Code Ann. § 43.26(a), (b)(3), (e), (g) (Vernon Supp.2004-05).


author: ADELE HEDGES, Chief Justice.

text:
    Leslie KING, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01387-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 8, 2005.

      Joseph Salhab, Houston, for appellant.
    Kelly Ann Smith, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

ADELE HEDGES, Chief Justice.

A jury found appellant Leslie King guilty of aggravated robbery and sentenced him to thirty years’ imprisonment. Appellant brings this appeal, claiming that the evidence was legally and factually insufficient to convict him. We affirm.

The evidence shows that on April 23, 2003, two men entered the Handi Grocer on South Dairy Ashford in Houston. The store’s owner, Sajid Murtaza, testified that a man later identified as appellant bought water and candy while the other man, later identified as Lando McCain, stood at the door. A short while later, the men returned. Murtaza testified that while McCain was obtaining change for a dollar from him, appellant entered the store with a backpack and stood near the door. Appellant then took a gun from his backpack, pointed it at Murtaza while walking toward him, and said, “I’m going to shoot you,” or “I’m going to kill you.” Appellant fired one shot at Murtaza, who ducked, removed his own weapon from under the counter, and fired four shots at the fleeing appellant. Appellant and McCain were later apprehended when McCain stopped to call for aid for the wounded appellant. The incident was recorded on the store’s security videotape.

We utilize the normal standards of review in evaluating legal and factual sufficiency claims. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004) (factual sufficiency); King v. State, 29 S.W.3d 556, 562-63 (Tex.Crim.App.2000) (legal sufficiency). In order to obtain a conviction for aggravated robbery in this case, the State was required to prove beyond a reasonable doubt that appellant, while in the course of committing theft of property, with intent to obtain and maintain control of the property, intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. Tex. Pen.Code Ann. §§ 29.03 (Vernon 2003). The State was also required to prove that appellant used or exhibited a deadly weapon in the course of committing the offense. Id. Appellant claims that the evidence lacks legal and factual sufficiency due to the State’s failure to prove he committed or attempted to commit theft. We disagree.

Under Texas law, actual commission of theft is not a prerequisite to the commission of robbery. Autry v. State, 626 S.W.2d 758, 762 (Tex.Crim.App.1982). Intent to steal may be inferred from an appellant’s actions or conduct. Chastain v. State, 667 S.W.2d 791, 795 (Tex.App.Houston [14th Dist.] 1983, pet. ref'd). In Autry, 626 S.W.2d at 762, Johnson v. State, 541 S.W.2d 185, 186-87 (Tex.Crim.App.1976), and Chastain, 667 S.W.2d at 795, the courts considered sufficiency challenges in cases with fact patterns similar to this case: robbery or attempted robbery without evidence of specific demand for or removal of money or property. In all three cases, the appellate courts held that the evidence was sufficient to convict the appellants of aggravated robbery based on overall circumstances, despite the fact that there was no evidence of a demand being made.

By contrast, in Thomas v. State, the Court of Criminal Appeals held that sufficient evidence of theft or attempted theft did not exist to convict appellant of aggravated robbery. 807 S.W.2d 803, 806 (Tex.App.-Houston [1 Dist.] 1991). Thomas, however, dealt with evidence necessary to corroborate an extrajudicial admission, something not at issue in this case. Id. at 805. Thomas is further distinguishable based on the facts that the murder victim was found in her home, with money, jewelry, and drugs still present on her person and in her apartment and her assailant was someone known to her. Id. at 806-07. The court therefore held that motives for her murder other than robbery could have existed. Id.

Here, appellant and McCain entered and left the store, returning ten to fifteen minutes later. Appellant entered, carrying a backpack. He approached Murtaza with a gun drawn and shot at him, then fled the store with McCain once Murtaza fired his own weapon. There is no evidence that appellant and Murtaza were anything other than complete strangers. Taking into account this evidence and the fact that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King, 29 S.W.3d at 562-63. That is, viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have inferred from appellant’s conduct that he intended to rob Murtaza.

Appellant also argues that in a legal sufficiency review a vital fact cannot be established “by stacking inference upon inference.” Richardson v. State, 834 S.W.2d 535 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (op. on reh’g); see also Lee v. State, 152 Tex.Crim. 401, 214 S.W.2d 619, 622 (1948). He contends that his intent to steal is a vital fact that cannot be established by stacking inferences. We do not believe that the State’s proof was based on one inference drawn from another. The “evidentiary ‘facts’ ” that appellant claims the State relied on to stack inference upon inference are: appellant’s parking his car in an adjacent lot, the “casing” of the store by appellant and McCain prior to the offense, and appellant’s return with a backpack containing a firearm. These facts do not require us to draw one inference from another. Instead, each of these facts taken alone goes to show independently that appellant intended to commit theft. Taking into account the fact that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we find that a rational trier of fact could have found the essential elements of the offense, including appellant’s intent to commit theft, beyond a reasonable doubt. King, 29 S.W.3d at 562-63. The evidence is therefore legally sufficient to support appellant’s conviction.

We also find that a neutral review of the evidence does not show that the proof of guilt is so weak that it demonstrates that the verdict is clearly wrong and manifestly unjust; neither is the contrary proof so strong that the reasonable doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The evidence is therefore factually sufficient to support appellant’s conviction.

Appellant’s points of error are overruled; we affirm the judgment of the trial court.


author: LESLIE BROCK YATES, Justice.

text:
    Gerald A. BURKS, Appellant, v. James YARBROUGH, Eddie Bar, Eddie Janek, Stephen Holmes, Ken Clark, and Phil Lohec, Appellees.
    Nos. 14-03-00477-CV, 14-03-00536-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 8, 2005.

      Gerald A. Burks, Galveston, pro se.
    Ervin Apffel, Jr., Kenneth J. Bower, Robert V. Shattuck, Jr., Galveston, for ap-pellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant Gerald A. Burks appeals from the denial of his motions for summary judgment and the granting of the summary judgment motions of appellees James Yarbrough, Eddie Bar, Eddie Ja-nek, Stephen Holmes, Ken Clark, and Phil Lohec. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Burks is the former Galveston County Treasurer. While he was County Treasurer, Burks brought two mandamus proceedings, one in Galveston County District Court and the other in Galveston County Court at Law, against the Galveston County Auditor, appellee Lohec, and the Galveston County Commissioners Court, comprised of appellees Yarbrough, Bar, Janek, Holmes, and Clark. Burks primarily sought to compel the return of certain county funds, alleging the funds were expended in violation of the Local Government Code and the Texas Open Meetings Act. Burks also sought to compel the payment of fees to an attorney who represented him in his capacity as County Treasurer in a separate suit filed by the County Commissioners Court.

Burks lost his bid for re-election. As a result, while these actions were pending, the claims in his capacity as County Treasurer were dismissed and have not been appealed. Burks also alleged these same claims in his individual capacity. Both sides moved for summary judgment, and the trial courts, without specifying the basis, granted appellees’ motions and denied Burks’s. Burks appeals from both judgments, contending in five issues in each appeal that his motions for summary judgment, not appellees’, should have been granted. As the factual background and legal issues substantially overlap, we consider both appeals together.

ANALYSIS

When both sides have moved for summary judgment and one motion is granted and one denied, we should determine all questions presented and render the judgment the trial court should have rendered. Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex.2002).

Standing

In their motions for summary judgment, appellees argued that Burks does not have standing to seek return of allegedly improperly expended county funds, either as a taxpayer or as an “interested person” under the Open Meetings Act. In his fourth issue in the district court appeal and his second issue in the county court appeal, Burks contends that appellees were not entitled to summary judgment because they did not conclusively establish his lack of standing.

As a general rule, taxpayers do not have a right to bring suit to contest government decisionmaking. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Unless a statute directs otherwise, to have standing to sue, “taxpayers must show as a rule that they have suffered a particularized injury distinct from that suffered by the general public.” Id. at 555-56. However, even without showing a particularized injury, taxpayers have standing to seek to enjoin the illegal expenditure of public funds. Id. at 556. “A taxpayer may maintain an action solely to challenge proposed illegal expenditures; a taxpayer may not sue to recover funds previously expended .... ” Williams v. Lara, 52 S.W.3d 171, 180 (Tex.2001) (citing Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96 (1937)). Rather, such a cause of action belongs exclusively to the county commissioners court or the county treasurer if the suit involves allegations of dereliction of duty of the majority of the county commissioners. Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96 (1937); Op. Tex. Att’y Gen. No. WW-1227 (1961).

Burks does not claim to have any interest distinct from the general public, and at oral argument, Burks admitted that since he seeks the return of alleged illegally expended funds, he has no standing to sue unless it is conferred by another source. Burks contends that the Open Meetings Act provides this source of standing.

The Open Meetings Act provides that an “interested person ... may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body.” Tex. Gov’t Code Ann. § 551.142(a) (Vernon 2004). Appellees contend that an “interested person” under the Open Meetings Act must still demonstrate a particularized injury, relying on City of Abilene v. Shackelford, 572 S.W.2d 742, 745-46 (Tex.Civ.App.-Eastland 1978), rev’d on other grounds, 585 S.W.2d 665 (Tex.1979). The Shackelford court applied general standing principles and held that an “interested person” under the Open Meetings Act “must show particular injury or damage, and he must allege and show how he has been injured or damaged other than as a member of the general public.” Id. at 746. However, Shackelford appears to stand alone in its analysis. Other courts directly addressing the issue have adopted an extremely broad interpretation of who constitutes an “interested person” under the Open Meetings Act. See Matagorda County Hosp. Dist. v. City of Palacios, 47 S.W.3d 96, 102 (Tex.App.-Corpus Christi 2001, no pet.) (following the majority of courts that have broadly interpreted the phrase “interested person” under the Open Meetings Act); Rivera v. City of Laredo, 948 S.W.2d 787, 791-92 (Tex.App.-San Antonio 1997, writ denied) (adopting broad interpretation of “interested person”); Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161, 163 (Tex.App.-Austin 1996, no writ) (noting that the standing conferred by the Open Meetings Act is broader than taxpayer standing and rejecting a requirement that a citizen prove an interest different from the general public); City of Fort Worth v. Groves, 746 S.W.2d 907, 913 (Tex.App.-Fort Worth 1988, no writ) (finding that “affected taxpayer and citizen” had standing under the Open Meetings Act); Cameron County Good Gov’t League v. Ramon, 619 S.W.2d 224, 230 (Tex.Civ.App.-Beaumont 1981, writ ref'd n.r.e.) (“It is difficult to see how the Legislature could broaden the class of ‘any interested person.’ ”).

The Texas Supreme Court has held that the intended beneficiaries of the Open Meetings Act are “members of the interested public.” City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex.1991). Requiring an individual to show injury or damage other than as a member of the general public is inconsistent with this principle. We therefore join the majority of courts that have addressed this issue and interpret the Open Meetings Act broadly to confer standing on any member of the interested public. Accordingly, we find Burks has standing to pursue alleged violations of the Open Meetings Act.

Appellees argue that because a suit to recover money allegedly owed to a county belongs exclusively to the county commissioners court and county treasurer, even if Burks is an “interested person” under the Open Meetings Act, he still has no standing to sue. We disagree. Appel-lees cite no authority, and analogous authority is inconsistent with this position. The San Antonio court addressed a similar issue when discussing a claim that the Laredo City Council selected a police chief in violation of the Open Meetings Act. Rivera, 948 S.W.2d at 789. The court noted that a quo warranto proceeding is traditionally the exclusive remedy to challenge a person’s right to hold public office. Id. at 790. However, given the broad language of and important policy underlying the provision allowing any “interested person” to bring an action under the Open Meetings Act, the court concluded that “the only situation in which a public official’s office can be challenged in an action other than a quo warranto proceeding is where a violation of the Open Meetings Act is asserted.” Id. at 791; accord City of San Antonio v. Hardee, 70 S.W.3d 207, 212-13 (Tex.App.-San Antonio 2001, no pet.). We similarly conclude that the only situation in which someone other than the county commissioners court or county treasurer can seek to compel the return of public funds is where it is asserted that those funds were expended in a meeting in violation of the Open Meetings Act.

We sustain district court appeal issue four and county court appeal issue two to the extent Burks seeks standing under the Open Meetings Act and overrule these issues to the extent Burks seeks standing as a taxpayer. Because we conclude that Burks has standing to seek return of public funds only if those funds were expended pursuant to a meeting that violates the Open Meetings Act, the remainder of our analysis focuses only on the alleged Open Meetings Act violations and not any violation of the Local Government Code.

Insurance Funds

Instead of Social Security, Galveston County employees participate in the Galveston County Disability, Retirement and Survivorship Benefits Program. Under that program, two companies provided life insurance. When these companies changed from mutual companies to stock companies in 1999, Galveston County withdrew its funds because it could not lawfully own stock. In a series of open, duly noticed meetings in 1999 and 2000, the Commissioners Court decided how to handle this money. When the money was received, it was dealt with according to the decisions made in those meetings.

In his first issue in the district court appeal, Burks claims that appellees were not entitled to summary judgment because they did not conclusively establish that this handling of the funds was not a violation of the Open Meetings Act. Burks seeks return of the funds, claiming appellees violated the Open Meetings Act by not posting notice of receipt of the money.

The Open Meetings Act provides that “[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter.” Tex. Gov’t Code Ann. § 551.002 (Vernon 2004). The Act does not address the substance of government decisionmaking. Rather, the “core purposes” of the Act “are to enable public access to and to increase public knowledge of government decisionmaking.” City of San Antonio, 820 S.W.2d at 765.

Burks does not claim that the funds were handled in any way other than according to what was decided at the meetings in 1999 and 2000. He may disagree with the substance of what was decided at those meetings, but that does not give rise to an Open Meetings Act violation. See id. Further, nothing in the Act requires that mere receipt of money must be noticed before that money can be dispersed according to decisions made at open, properly noticed meetings. We overrule district court appeal issue one.

Payments to Pauls

In August 1999, Louis Pauls & Co. (“Pauls”) entered into a contract with Galveston County, and Pauls was paid for its services in April 2001. Both the signing of the contract and the payment for services were approved at open, duly noticed meetings, and Burks does not dispute this. However, he claims that when the County Commissioners and Pauls discussed business during a trip to New York in February 2001, those discussions amounted to a closed meeting. According to Burks in his second issue in the district court appeal and his fifth issue in the county court appeal, this closed meeting essentially taints the entire relationship, and therefore the subsequent payments to Pauls for services rendered and reimbursement for travel expenses, which were authorized at duly noticed meetings, were illegal.

The Open Meetings Act provides that “[a]n action taken by a governmental body in violation of this chapter is voidable.” Tex. Gov’t Code Ann. § 551.141 (Vernon 2004). Burks does not allege that any payments to Pauls were approved at this meeting in New York. The Act provides a basis for voiding “specific acts which violate the Open Meetings Act.” Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 182 (Tex.App.-Corpus Christi 1990, writ denied). It does not render any subsequent decision made based on deliberations at a closed meeting voidable. Hill v. Palestine Indep. Sch. Dist., 113 S.W.3d 14, 17 (Tex.App.-Tyler 2000, pet. denied). Because Burks does not complain of any action taken at the meeting in New York, he has no basis on which to seek to void the payments to Pauls. We overrule district court appeal issue two and county court appeal issue five to the extent Burks argues that reimbursement of the travel expenses was made in violation of the Open Meetings Act.

Settlement Payment

Ón July 31, 2000, at a properly noticed meeting, the Commissioners Court approved paying a former employee to settle potential claims arising from the termination of his employment. The Commissioners Court processed the settlement as a claim and approved the payment at a second properly noticed meeting three weeks later. The settlement check was mistakenly prepared as a payroll check, and when the mistake was caught, a new check was prepared and approved at a third meeting on August 28, 2000. Because Burks expressed concerns about how the checks were prepared, the Commissioners Court reconsidered the matter and approved the payment at a fourth properly noticed meeting on September 11, 2000.

Burks complains that the action taken on August 24, 2000 of signing the new settlement check that was to be presented for approval at the August 28 meeting was somehow illegal because August 24, 2000 was not a lawful meeting of the County Commissioners Court. Even assuming the Commissioners Court somehow held an unlawful meeting by signing the new check, any impropriety was corrected when the Commissioners Court, at Burks’s request, subsequently reconsidered the issue and again approved payment. See Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex.App.-Waco 1997, pet. denied) (“Action undertaken at an invalid meeting can be ratified at a later valid meeting as long as there is no retroactive effect.”); Fielding v. Anderson, 911 S.W.2d 858, 864-65 (Tex.App.-Eastland 1995, writ denied) (holding that a governmental body can reconsider an issue previously decided at a meeting not properly noticed because otherwise “once a governmental body has done a void act, the situation could never be corrected”). We overrule county court appeal issue five to the extent Burks argues that the settlement payment was made in violation of the Open Meetings Act.

Payment for Website

At an open meeting on October 8, 2001, the Commissioners Court approved payment to a-website development company for work performed on Commissioner Clark’s official website. Burks complains that in the two earlier meetings authorizing the work from the company, the funds were improperly budgeted. Thus, according to Burks, the Commissioners Court could not approve payment on October 8, 2001 without first posting notice that the prior budgeting was improper. At oral argument, Burks clarified his argument to be that the Commissioners Court must post a notice that it intends to conduct an illegal act to comply with the notice requirements of the Open Meetings Act.

The Open Meetings Act requires that “[a] governmental body shall give written notice of the date, hour, place, and subject of each meeting to be held by the governmental body.” Tex. Gov’t Code Ann. § 551.041 (Vernon 2004). If the facts of the content of a notice are undisputed, the adequacy of the notice is a question of law. Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 529 (Tex.App.-Austin 2002, pet. denied). A notice need not provide exacting detail of all issues to be decided. “As long as a reader is alerted to the topic for consideration, it is not necessary to state all of the consequences which may flow from consideration of the topic.” Cox Enters., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 958 (Tex.1986). Even if a notice is not as clear as it could be, it is adequate as long as it is sufficiently descriptive to alert a reader that a particular subject will be addressed. Friends of Canyon Lake, 96 S.W.3d at 531.

Nothing in the Open Meetings Act requires that a governmental body include in its notice that it intends to violate some provision of law. As a general matter, such detail is not required under the Act. Further, to require such a notice would bootstrap every allegedly illegal act into a violation of the Open Meetings Act, thereby circumventing the carefully crafted scheme limiting the manner in which taxpayers and other citizens can challenge the actions of governmental bodies. See Williams, 52 S.W.3d at 180; Bland Indep. Sch. Dist., 34 S.W.3d at 555-56. We overrule county court appeal issue five to the extent Burks argues that payment for the website development was made in violation of the Open Meetings Act.

CONCLUSION

Given our disposition of these issues, we need not address Burks’s remaining issues. We affirm the trial courts’ judgments.

      . For the first time in his reply briefs, Burks contends that appellees have waived their standing arguments because they amount to an attack on his capacity to sue and challenges to capacity must be specifically pleaded and verified by affidavit, which appellees did not do. See Tex.R. Civ. P. 93. Burks confuses capacity and standing. Standing implicates a court’s subject matter jurisdiction and cannot be waived. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996). Appellees’ challenge goes to whether Burks is personally aggrieved and therefore has standing, not to whether he has the legal authority to act and therefore has the capacity to sue. See id. at 661. Thus, appellees’ argument is one of standing and is properly before this court. Even if Burks is correct that appellees’ argument really is one of capacity and not standing, Burks has waived this pleading deficiency argument by failing to raise it in the trial courts below or in this court until his reply brief. See Tex.R. Civ. P. 90 ("Every defect, omission or fault in a pleading ... which is not specifically pointed out by exception in writing and brought to the attention of the judge ... shall be deemed to have been waived ....”); Tex.R.App. P. 38.3 (reply briefs are to address any matter in appellee’s brief); Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (complaint waived because not raised in initial brief).

      . When Burks was still County Treasurer, the Commissioners Court sued Burks to compel him to pay County bills. With the Commissioners Court's consent, Burks hired an attorney to represent him in his official capacity. The County paid some but not all of the attorney’s bills. Burks seeks to compel payment of these fees. In the third issue of the district court appeal, Burks characterizes the failure to pay the attorney's fees as a violation of the Open Meetings Act and the Local Government Code. Assuming failure to pay a bill violates the Local Government Code, Burks has no standing to bring such a claim. It is the attorney, not Burks, who is aggrieved by the failure to pay. Because Burks contracted with the attorney in his official capacity, he is not individually liable for the fees. Burks has no interest in this matter distinct from the general public, and therefore he has no standing. See Bland Indep. Sch. Dist., 34 S.W.3d at 555-56. Furthermore, the Open Meetings Act does not provide a basis for standing on this claim. Although Burks characterizes this as an Open Meetings Act claim in the wording of his issue, he provides no explanation, analysis, or authority as to why a refusal to pay a bill implicates the Open Meetings Act. Therefore, because of inadequate briefing, he has waived this argument. See Tex.R.App. P. 38.1(h); Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We overrule district court appeal issue three.

      . In issue five in the county court appeal, Burks generally asserts that his motion for summary judgment should have been granted, which we read to fairly include the arguments he briefs elsewhere on separate issues regard-mg whether appellees violated the Open Meetings Act with respect to reimbursement of travel expenses, making a settlement payment, or paying for website development services.

      . In district court appeal issue five and county court appeal issues three and four, Burks addresses separate defenses appellee Lohec raised. In county court appeal issue one, Burks addresses appellees' official immunity defense.


author: PER CURIAM.

text:
    Ivo NABELEK, Appellant, v. Billy M. ALDRICH, et al., Appellees.
    No. 14-04-00886-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 10, 2005.
    Ivo Nabelek, Midway, pro se.
    Rosemary Sylvia Ward, Houston, for ap-pellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   ORDER

PER CURIAM.

This is an appeal from a judgment signed August 19, 2004. Appellant filed his notice of appeal on September 7, 2004. Appellant also filed a pro se application to proceed in forma pauperis on September 7, 2004. On September 17, 2004, the Harris County District Clerk filed a contest to appellant’s affidavit of inability to pay costs. The contest was set for submission before the trial court on September 27, 2004. On September 27, 2004, the trial court signed an order sustaining the district clerk’s contest.

On October 12, 2004, appellant filed a motion with this court requesting that we review the trial court’s order sustaining the contest to his affidavit of indigence. The Texas Supreme Court has determined that, under the amended rules of appellate procedure, an indigent party may obtain the record pertaining to the trial court’s ruling sustaining the contest to his affidavit of indigence and challenge that ruling as part of his appeal, instead of by mandamus review as was done previously. See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex.1998). Accordingly, on November 12, 2004, we ordered those portions of the record necessary to review the order sustaining the contest to appellant’s affidavit of indigence be filed with the clerk of this court.

On November 17, 2004, the district clerk filed a clerk’s record, which contained the documents relevant to appellant’s indigen-cy claim. No reporter’s record from the indigency hearing exists.

In its contest, the District Clerk asserted only that Nabelek’s appeal was frivolous under Tex. Crv. PRAC. & Rem.Code Ann. § 13.003(a)(2)(A) (Vernon 2002). This section provides:

Subject to Subsection (c), a court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if:
(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and
(2) the trial judge finds:
(A) the appeal is not frivolous....

Id. In making the determination whether the appeal is frivolous, the judge may consider “whether the appellant has presented a substantial question for appellate review.” Id. at § 13.003(b).

Nabelek claims Chapter 13 does not apply to his claims so that section 13.003(a)(2) cannot provide a basis for sustaining the district clerk’s contest. We agree. Section 13.003 is part of Chapter 13 of the Texas Civil Practice and Remedies Code, which under its own unambiguous language, “does not apply to a claim governed by Chapter 14.” Tex. Civ. PRAC. & Rem.Code Ann. § 13.004 (Vernon 2002); see also Tex. Crv. Prac. & Rem.Code Ann. § 13.003. Chapter 14 governs claims brought by inmates in a district, county, justice of the peace, or small claims court in which the inmate files an affidavit or unsworn declaration of inability to pay costs. See Tex. Civ. Prac. & Rem.Code Ann. § 14.002 (Vernon 2002). Because Nabelek brought his claims in a district court and filed an affidavit or unsworn declaration of inability to pay trial-court costs, we conclude that Chapter 14 governs Nabelek’s claims and that therefore section 13.003 does not apply to the district clerk’s contest. See Tex. Civ. Prac. & Rem.Code Ann. § 13.004,14.002.

In the course of holding that section 14.004 does not apply to an inmate’s filing of an affidavit of inability to pay appellate costs, this court has previously stated that Chapter 14 does not govern procedure in appellate courts. See Nabelek v. Garrett, 94 S.W.3d 648, 649 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.) (published order). That statement and holding are consistent with our resolution in this case. See id. In this case, we are not stating that the procedural requirements of Chapter 14 apply on appeal. Rather, we are holding that, when an inmate appeals the dismissal of his claims in a case in which he has previously filed an affidavit of inability to pay district-court cost, the district clerk’s contest in the district court of the inmate’s affidavit that he is unable to pay appellate costs involves a claim governed by Chapter 14, and therefore, section 13.003 does not apply. The determination that such contests involve claims governed by Chapter 14 does not mean that the affidavit requirement of section 14.004 applies to an inmate’s filing of an affidavit of inability to pay appellate costs. Because the Texas Legislature has determined that Chapter 13 does not apply to claims governed by Chapter 14, and because Chapter 14 governs Nabelek’s claims in the district court, Chapter 13 does not apply to the district court’s contest in the district court of Nabelek’s affidavit of inability to pay appellate costs.

Because the trial court based its determination on Chapter 13, which we have held inapplicable to this case, we hold that the trial court’s order of September 27, 2004, cannot stand. Accordingly, we find appellant’s affidavit of indigency is sufficient to enable him to proceed on appeal without advance payment of costs.


author: RICHARD BARAJAS, Chief Justice.

text:
    SEARS, ROEBUCK & CO. d/b/a Sears Heating and Air Conditioning, and D/FW Home Improvement Specialists, Inc. d/b/a Home Improvement Specialists, Inc., and Randy Sprinkle d/b/a Texas Air Conditioning & Plumbing, Appellants, v. Steven ABELL and Peggy Abell, Appellees.
    No. 08-03-000031-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 10, 2005.
    Rehearings Overruled March 30, 2005.

      A. Scott Campbell, Law Offices of A. Scott Campbell, McKinney, for Appellants.
    Rebecca E. Bell, Fee, Smith, Sharp & Vitullo, L.L.P., J. Robert Miller Jr., Miller & Brown L.L.P., Lisa A. Stegall, Dallas, for Appellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the entry of a judgment against all Appellants after a jury trial. The original proceeding was tried upon allegations of negligence, negligence per se, and violations of the Texas Deceptive Trade Practices Act. Cross-claims filed by the various defendants were also tried. The trial court’s judgment entered a finding in favor of Appel-lees against Appellant Sears, in favor of Sears against Appellant D/FW, and in favor of D/FW against Appellant Randy Sprinkle. Each Appellant appeals asserting separate issues of error. For the reasons stated, we affirm the judgment of the trial court.

I. PROCEDURAL AND FACTUAL HISTORY

Appellees purchased a heating unit from Appellant Sears in September of 1997. Included in the purchase of the unit was the installation costs. Appellant Sears had an existing contract with Appellant D/FW which provided that D/FW was to install the unit in the Abell home as an authorized Sears contractor. Appellant D/FW, without permission from Sears, had contracted with Randy Sprinkle d/b/a Texas Air Conditioning and Plumbing, to install the heating unit. The heating unit was installed in the Abell home on September 10, 1997. On the morning of November 17, 1997, the heating unit caught fire causing significant damage to the Abells’ home and personal property.

A subsequent investigation by the City of Arlington and the fire arson investigator revealed that the heating unit had not been installed correctly and that none of the Appellants had obtained the necessary permits from the City of Arlington. The determination of the fire arson investigator and the electrical inspector was that the cause of the fire was the use of faulty connections to install the heating unit.

Appellees filed their Original Petition against Appellants Sears and D/FW on October 27, 1998. Appellees filed numerous amended petitions and ultimately sued all Appellants under theories of negligence and for violation of the Texas Deceptive Trade Practices Act. Each Appellant filed cross-claims against all the other Appellants for contribution and indemnity as well as for breach of contract claims. After a trial to a jury, the trial court entered a judgment awarding damages in favor of the Appellees. Appellees elected to recover damages from Sears. The judgment reflected that decision and also entered a judgment in favor of Sears against D/FW and in favor of D/FW against Randy Sprinkle.

Appellant Sears appeals complaining of error in the charge submitted to the jury in one issue with two sub-arguments. Appellant D/FW asserts error was committed by the trial court in three issues. Appellant Randy Sprinkle asserts error was committed by the trial court in four issues.

II. DISCUSSION

A. Appellant Sears’ Issue No. One

Appellant Sears, in its sole issue, asserts that the trial court committed error by failing to submit a question on the proportionate responsibility of its co-defendants under Texas Business and Commerce Code Section 17.555. Sears argues that the trial court was obligated to submit a specific question to the jury regarding the liability of Appellants D/FW and Sprinkle under the Texas Deceptive Trade Practices Act inquiring about the proportionate responsibility of each. The threshold determination to be made before reaching this issue, however, is whether the matter was properly preserved for review.

To preserve error in the charge in a civil matter, the objecting party must distinctly designate the error and the grounds for the objection. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 272; Keetch v. Kroger Co., 845 S.W.2d 262, 267 (Tex.1992).

In order to preserve charge error, appellant must comply with Texas Rules of Civil Procedure Rules 271-79. If the error is the omission of an instruction relied on by the requesting party, three steps are required by the Rules to preserve error: a proper instruction must be tendered in writing and requested prior to submission; a specific objection must be made to the omission of the instruction; and the court must make a ruling. Wright Way Const. Co., Inc. v. Harlingen Mall Co., 799 S.W.2d 415, 418 (Tex.App.-Corpus Christi 1990, writ denied). Texas Courts have repeatedly held that an objection and a proper request are required to preserve charge error if the trial court omits a question, definition, or instruction relied on by the requesting party. See, e.g., National Fire Ins. v. Valero Energy Corp., 777 S.W.2d 501, 508 (Tex.App.-Corpus Christi 1989, writ denied); Texas Cookie Co. v. Hendricks & Peralta, Inc., 747 S.W.2d 873, 878 (Tex.App.-Corpus Christi 1988, writ denied); Donnelley Marketing v. Lionel Sosa, Inc., 716 S.W.2d 598, 602 (Tex.App.-Corpus Christi 1986, no writ). See also Texas Power & Light Co. v. Barnhill, 639 S.W.2d 331, 334 (Tex.App.-Texarkana 1982, writ ref'd n.r.e.). The Texas Supreme Court has interpreted the rules in this manner for at least thirty-five years. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955). One reason why both are required is found in the language of Rule 274 which states in part: “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a[n] ... instruction, on account of any ... omission ... is waived unless specifically included in the objections.” Rule 272 also states a specific objection is required to preserve error. Rule 278 creates a limited exception if the question is relied on by the opposing party. See Wright Way Const. Co., 799 S.W.2d at 418-19.

The second reason why both a specific objection and a request is required in this situation is to protect the trial court from committing reversible error during the charge hearing. Historically, charge error has been a serious problem in Texas. See, e.g., Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984) (discussing problems prior to broad submission). The purpose of a Rule 274 objection is to require the attorneys to bring to the court’s attention the error in the charge, and thereby eliminate the potential for reversal caused by charge error. Rule 278 requires that the requested instruction be tendered in writing prior to submission. This rule indicates that a specific objection is not required where a question is relied upon by the opposing party. In this case, the requested question was relied on by the requesting party, thus an objection and a request for submission was required to preserve error. Yellow Cab & Baggage Co., 277 S.W.2d at 93; Tex.R. Civ. P. 274. A ruling is also required to preserve error. See Acord v. General Motors Corp., 669 S.W.2d 111, 114 (Tex.1984); Tex.R. Civ. P. 272, 276; Tex. R.App. P. 52(a) (now Tex.R.App. P. 33.1). To summarize, if the trial court refuses to instruct or tender a question on an issue relied upon by the requesting party, to preserve error the party must object, tender and request, and obtain a ruling. Wright Way Const. Co., Inc., 799 S.W.2d at 419.

Rule 274 sets forth a rigorous standard for sufficiency of charge objections: party objecting to a charge must point out distinctly the objectionable matter and the grounds for the objection. Any complaint as to a question, definition, or instruction on account of any defect, omission, or fault in pleading is waived unless specifically included in the objections. When the complaining party’s objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only. Id.

This Rule creates a two pronged test: objections to the charge must specify the error and the legal basis of the objection. Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex.1986). Rule 274 is strictly construed. For example, in Castleberry, the objection that the instructions might “confuse the jury” or “prejudice the defendant” was held too general because it did not explain why the instruction was defective or how it would confuse the jury or prejudice the defendant. Wright Way Const. Co., Inc., 799 S.W.2d at 420. Our next step is to determine if a substantially correct instruction was properly tendered in writing and requested prior to submission and separate and apart from the objections, Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d 170, 182 (Tex.App.-Waco 1987, writ denied); see also Valero, 777 S.W.2d at 507; Tex.R. Civ. P. 272, 277, 278. Our first inquiry in this case is whether Appellant Sears tendered the appropriate question in substantially correct form. See Wright Way Const. Co., Inc., 799 S.W.2d at 421; Tex.R. Civ. P. 278.

Sears complains on appeal that a question regarding the proportionate responsibility of the co-defendants was not included in the final jury charge. Appellant Sears did not submit the question about which it is presently complaining in substantially correct form. The question was not included in the proposed charge prepared by Sears nor was it ever addressed by the trial court. Appellant Sears did not object to its lack of inclusion in the charge nor did it obtain a ruling. While Sears did submit a question in its proposed charge inquiring of the jury whether co-defendants D/FW and Sprinkle were liable under the Deceptive Trade Practices Act, the question which Sears now contends was critical, the question on proportionate responsibility, was not included.

The proper method of complaining of the omission of a party’s own questions — those on which he relies — is by requesting the submission of such questions in substantially correct wording. Accordingly, to avoid waiver as to an independent ground of recovery, the plaintiff must tender questions thereon in substantially correct form. 34 G. Hodges & R. Guy, The JURY CHARGE IN TEXAS ClVIL LITIGATION, § 152 (Texas Practice 1988). J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.App.-San Antonio 1993, no writ). Appellant Sears neither made a proper request for the submission of a jury question on proportionate responsibility of the co-defendants nor objected to the absence of a proportionate responsibility question. Any complaint regarding that question was, therefore, waived by Sears’ failure to submit a question and to object to the charge as given. See Tubb v. Bartlett, 862 S.W.2d 740, 746 (Tex.App.-El Paso 1993, writ denied); Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991); Pope v. Darcey, 667 S.W.2d 270, 274 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.); Tex.R. Civ. P. 273, 274, 279; Tex.R.App. P. 52(a) (now Tex.R.App. P. 33.1).

A trial court need not submit a requested question on a defensive issue unless it is supported by the pleadings, Burditt v. Sisk, 710 S.W.2d 114, 117 (Tex.App.-Corpus Christi 1986, no writ), and is in substantially correct form. Tubb, 862 S.W.2d at 747; State Farm Fire & Casualty Co. v. Miller, 713 S.W.2d 700, 703 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). We do not reach whether the allegedly missing question was supported by the pleadings or whether Sears’ objections preserved the matter for appellate review because the question was not submitted in substantially correct form. Consequently, Appellant Sears did not preserve error for review by this Court. Appellant Sears’ Issue No. One is overruled.

B. D/FW’s Issues on Appeal

D/FW presents three issues for review by this Court. Issue No. One complains of the trial court’s entry of a judgment against D/FW and asserts that no evidence exists in the record to support a finding of damages suffered by Sears or that a breach of contract occurred. Issue No. One also contains the alternative assertion that insufficient evidence existed to support the judgment in favor of Sears. Issue No. Two complains of the award of attorney’s fees incidental to the entry of the judgment, and Issue No. Three, similarly, complains of the award of prejudgment interest on the award.

In the case below, Sears, as cross-plaintiff, filed cross-claims against D/FW as cross-defendant claiming an entitlement to contribution and indemnity from D/FW under theories of negligence, under the Deceptive Trade Practices Act, under the terms of the contract, and under the common law. Sears also sued for breach of contract. After a jury trial, the trial court entered judgment in favor of Sears against D/FW from which D/FW appeals.

D/FW presents a novel theory to this Court — it urges that because Sears was not obligated to pay any money in damages to Appellees, the Abells, until such time as the jury returned its verdict, there was no evidence of damage to Sears during the trial of the case, therefore, the trial court committed error by entering a judgment against D/FW because no evidence existed to support a finding of damages suffered by Sears. In essence, D/FW suggests that, at a minimum, concurrent trials resolving contingent cross-claims may not be held because, literally, no cross-liability exists until after the trial on the merits has occurred and; therefore, no damages on cross-claims may be awarded in any trial on the underlying claim. D/FW’s argument would result in the immediate requirement for duplicate trials on all cross-claims filed around the state with the consequential potential for inconsistent results and a complete loss of any hope of judicial economy in the resolution of claims. Such a position is not supported by any case law cited by D/FW or found by this Court. In light of the circuitous argument presented by D/FW, we feel compelled to address the underlying question presented by its issues on appeal: whether no evidence of culpability may exist until a verdict is reached by a jury on the underlying case.

The normal standard of review for a “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding is factually insufficient or so against the great weight and preponderance as to be manifestly unjust. Id.

An “insufficiency” point invokes a broader standard, requiring this Court to consider all of the evidence and ascertain whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In this case, Appellant D/FW urges that the appellate court should disregard all the evidence contained in the record that establishes culpable conduct on the part of D/FW and only look to the record from the moment that the jury returns the verdict. Under its theory, liability on the part of the cross-defendant can never be determined without the need for a separate trial.

Not surprisingly, we have found no cases that discuss this theory from either perspective. We recognize that the Texas judicial system would be sorely abused by the theory proposed by Appellant D/FW and decline to follow that path.

Further, looking to the record as a whole, we believe that there is sufficient evidence to support a judgment against D/FW under the pleadings filed by Sears. The facts leading up to the fire in the Abell home are clearly established by the evidence. The damage caused to the Abell home is not disputed. The role that each defendant played in the underlying contractual relationship is not disputed. What remained to be resolved was the actual responsibility on the part of each defendant below and the dollar amount of the damages. We hold that the record contains ample evidence to support the judgment entered against D/FW in favor of Sears. We also note that D/FW did not complain on appeal about any of the questions submitted to the jury nor did D/FW ever urge that a separate trial on damages should be held. Further, the pleadings filed by Sears support the judgment as entered and we also note that D/FW did not specially except to the pleadings and at no time complained about the lack of specifically plead damages in the Sears’ cross-claim. For the reasons stated, we overrule Appellant D/FW’s Issue No. One.

Issue Nos. Two and Three relate to the underlying determination that a judgment against Appellant D/FW was proper. D/FW asserts that neither attorney’s fees nor prejudgment interest should be awarded against it incidental to the judgment entered by the trial court.

The jury awarded Appellant Sears $60,000 in attorney’s fees against D/FW and the trial court entered a judgment reflecting the finding and included an award of prejudgment interest. In this case, Appellant D/FW does not argue that evidence to support the award of attorney’s fees did not exist. D/FW only asserts that because the underlying award was not proper under its theory of no damages until the verdict, there can be no award for attorney’s fees. The jury finding awarding attorney’s fees was clearly supported by the evidence. The jury found that Sears was entitled to recover damages from D/FW and determined the amount to be awarded for attorney’s fees. The trial court properly followed their determination as fact finders below and awarded attorney’s fees to a prevailing party. See Tex. Civ. PRAC. & Rem.Code Ann. § 38.001(8) (Vernon 1997).

To recover attorney’s fees under Section 38.001, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995). Sears met that standard, therefore, we overrule D/FW’s Issue No. Two.

Similarly, Appellant’s minimally briefed claim regarding the award of prejudgment interest must fail. Prejudgment interest is an appropriate element of damages for a prevailing party. Sears as judgment debtor to the Abells is obligated to pay prejudgment interest on the damages claim awarded to them. In order to compensate Sears as cross-plaintiff, it should be entitled to recover prejudgment interest from the judgment debtor D/FW. Appellant cites no cases for its proposition that prejudgment interest should not be awarded. The only case cited in Appellant’s brief, Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985) is the Supreme Court case establishing prejudgment interest is an appropriate element of damages. In its reply brief, Appellant cites two cases which expand the principal that prejudgment interest is a proper element of damages in a judgment. It cites no cases in support of its theory that damages do not exist until the moment of the verdict. In fact, prejudgment interest was awarded on the portion of the judgment paid to the Abells by Sears, therefore, Sears is entitled to recover the same types of damages from D/FW.

Further, because the issue is not properly briefed or argued, the point is not preserved for appeal. When a party fails to include any citation of authority or discussion of relevant facts to support its contention, “we will not perform an independent review of the record and applicable law to determine whether the error complained of occurred.” Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex.App.-Houston [1st Dist.] 1995, no writ). Thus, we consider appellant’s challenge regarding the court’s award of prejudgment interest to be waived. See, e.g., Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d as moot). Issue No. Three is overruled.

C. Randy Sprinkle’s Issues on Appeal

Appellant Randy Sprinkle appeals from the judgment entered against it awarding damages to D/FW in the amount of $85,000 plus prejudgment interest on the various cross-claims filed by D/FW. Appellant Sprinkle presents four issues for review for consideration by this Court. Issue Nos. One, Two, and Three complain about the trial court’s entry of judgment based upon the allegations related to the underlying contract between D/FW and Sprinkle. Issue No. One does not state a clear complaint regarding the trial court’s actions, but we read it as a contention that it was error to admit the incomplete copy of the contract and that the admission of the contract was harmful to Sprinkle. Issue No. Two complains that because the admission of the incomplete contract was improper, there is no factually sufficient evidence in the record to support the jury’s verdict of a breach of contract between Sprinkle and D/FW. In Issue No. Three, Sprinkle argues that the trial court committed error by submitting a question to the jury regarding the breach of the contract by Sprinkle and further argues that the trial court committed error by instructing the jury on the measure of damages. Issue No. Four complains of the fact that liability insurance was interjected into the trial and that the prejudicial effect of such interjection and the trial court’s denying of Sprinkle’s motion for mistrial was error.

The standard of review for review of the trial court’s admission of evidence is abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Tracy v. Annie’s Attic Inc., 840 S.W.2d 527, 531 (Tex.App.-Tyler 1992, writ denied). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court’s ruling was in error and that the error was calculated to cause and probably did cause “the rendition of an improper judgment.” Tex.R.App. P. 44.1; Owens-Corning Fiberglas Corp., 972 S.W.2d at 43; Alvarado, 897 S.W.2d at 753; Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); W. Tex. Gathering Co. v. Exxon Corp., 837 S.W.2d 764, 775 (Tex.App.-El Paso 1992, writ granted), rev’d on other grounds, 868 S.W.2d 299 (Tex.1993). The Supreme Court has recognized the impossibility of prescribing a specific test for determining whether the erroneous admission or exclusion of evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992); Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex.1980).

However, the complaining party is not required to prove that “but for” the error, a different judgment would necessarily have resulted. McCraw, 828 S.W.2d at 758; Tex. Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, 192 (1949). Instead, the complaining party must only show that the error “probably” resulted in an improper judgment. McCraw, 828 S.W.2d at 758; King v. Skelly, 452 S.W.2d 691, 696 (Tex.1970); Cecil v. T.M.E. Invs., Inc., 893 S.W.2d 38, 45 (Tex.App.-Corpus Christi 1994, no writ); LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 699 (Tex.App.-Dallas 1992, writ denied). In making this determination, the appellate court must review the entire record. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001); Alvarado, 897 S.W.2d at 754; McCraw, 828 S.W.2d at 758 (citing Gee, 765 S.W.2d at 396 and Lorusso, 603 S.W.2d at 821); Jamail v. Anchor Mortgage Servs., Inc., 809 S.W.2d 221, 223 (Tex.1991) (per curiam). Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Interstate Northborough P’ship, 66 S.W.3d at 220; W. Tex. Gathering Co., 837 S.W.2d at 775; Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 493 (Tex.App.-Dallas 1987, writ denied); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.); Atl. Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.). Furthermore, error in the improper admission of evidence is usually deemed harmless if the objecting party “opens the door” by introducing the same evidence or evidence of a similar character, Southwestern Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 473 (Tex.1998) (quoting McInnes v. Yamaha Motor Co., 673 S.W.2d 185, 188 (Tex.1984)) subsequently permits the same or similar evidence to be introduced without objection, Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Shenandoah, 741 S.W.2d at 494 or if the evidence is merely cumulative of properly admitted evidence. Jamail, 809 S.W.2d at 223; McInnes, 673 S.W.2d at 188; City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 791 (Tex.App.-Dallas 1992, writ denied).

In the case at bar, Appellant Sprinkle contends that the contract between D/FW and Sprinkle was improperly admitted into evidence because the copy that was available was incomplete; the document did not include copies of two appendices which should have been attached. There is no dispute among the parties that D/FW and Sprinkle had entered into a contract for performance of the installation of the heating unit in the Abell home, there is no dispute that Sprinkle and his employees installed the heater pursuant to that agreement, and there is no dispute that Sprinkle received compensation for the installation under that agreement. Sprinkle appears to contend that because the actual paper document evidencing the agreement is incomplete, he and his company are automatically protected from any responsibility under that agreement.

Sprinkle’s argument actually encompasses two concepts, first, that the admission of the incomplete document is improper and, secondly, that because the complete document does not appear to exist, Sprinkle is excused from any consequences as a result of Sprinkle’s failure or non-performance under the agreement. We note that both parties had equal access to the agreement and both parties could have or should have retained copies of the complete agreement. The fact that a portion of a contract, which each party agrees existed, was performed, and under which compensation was paid, was lost or destroyed, should not create a shield for responsibility for negligent performance under said agreement.

We hold that the admission of the contract document was within the discretion of the trial court and was not improper especially in light of the fact that the substance of the contract was not disputed. Further, the mere fact of the missing appendices should not be a bar to recovery under an agreement particularly where complete performance occurred. We overrule Appellant Sprinkle’s Issue No. One.

Issue No. Two complains that because the underlying contract was improperly admitted, there is no evidence of a contract before the jury and; therefore, there is insufficient evidence to support the jury’s verdict of a breach of that agreement. There is no dispute among the parties that Randy Sprinkle’s employees went to the Abell home on September 10, 1997 and installed a heating unit sold by Sears to Mr. and Mrs. Abell. The Sprinkle employees went to the home pursuant to an agreement that Sprinkle had with D/FW. D/FW subcontracted the installation of the heating unit with Sprinkle pursuant to its agreement with Sears. On the morning of November 17, 1997, the heating unit caught fire and burned the Abell home.

The evidence before the jury establishes that the Sprinkle employees did not obtain the appropriate permits from the City of Arlington nor did they request or obtain a City inspection of the installation. Further, the evidence clearly established that the installation was defective because of the type of wiring which existed in the Abell home and the type of wiring that the heating unit contained. Ample evidence existed to support the jury’s finding that the manner in which the heating unit was installed was defective and that the improper installation of the unit was negligent and a breach of the contract that Sprinkle had entered into with D/FW.

As stated previously in this opinion, the standard of review for an insufficiency of the evidence issue only requires a reversal in the event that after considering all the evidence as a whole, the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. See Garza, 395 S.W.2d at 828. Here, such is not the case. We overrule Sprinkle’s Issue No. Two.

Issue No. Three complains of the improper submission of a question to the jury and the court’s inclusion of an instruction to the jury regarding the measure of damages to be awarded. A review of the clerk’s record does not include a proposed charge submitted to the court on behalf of Appellant Randy Sprinkle. As stated previously in response to Appellant Sears’ Issue No. One, to preserve error in the charge in a civil matter, the requested instructions and questions must be submitted in substantially correct form and objections must be made and ruled upon. Any complaint regarding that question was, therefore, waived by Sprinkle’s failure to submit a question and to object to the charge as given. See Tubb, 862 S.W.2d at 746; Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991); Pope v. Darcey, 667 S.W.2d 270, 274 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.); Tex.R. Civ. P. 273, 274, 279; Tex.R.App. P. 52(a) (now Tex.R.App. P. 33.1). We overrule Sprinkle’s Issue No. Three.

Appellant Sprinkle’s Issue No. Fom* addresses the question of the harm caused by the injection of insurance into the case in chief by the testimony of the witness from one co-defendant. The subject of insurance was addressed in the motions in limine filed by the parties. A review of the record reflects that John Green, D/FW’s owner made reference to insurance on more than one occasion. Sears and Sprinkle both moved for a mistrial during the charge conference. Assuming, without finding that Appellant Sprinkle’s objections to the mention of insurance properly preserved the issue for review, appellant still must show that the injection of insurance resulted in the rendition of an improper verdict. The trial court’s error will only require a reversal if it amounted to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied); St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27, 33 (Tex.1965); Pride Transp. Co., Inc. v. Hughes, 591 S.W.2d 631, 634 (Tex.Civ.App.-Eastland 1979, writ ref'd n.r.e.); Tex.R.App. P. 81(b) (now Tex.R.App. P. 44.1). The mere mention of insurance during trial before a jury, though erroneous, does not result in an automatic mistrial or reversal. Beall, 867 S.W.2d at 795; Gregory, 387 S.W.2d at 33; Pride, 591 S.W.2d at 634; Tex.R. Evid. 411.

Appellant must show that the inclusion of the reference to insurance probably did cause the rendition of an improper verdict as to Randy Sprinkle. A review of the record establishes that the party most culpable for the incident was in fact Randy Sprinkle. But for the faulty installation of the heating unit in question, the fire would not have occurred and the damages would not have existed. We hold, therefore, that the injection of insurance did not cause the rendition of an improper verdict. See Beall, 867 S.W.2d at 795. Appellant Sprinkle’s Issue No. Fom* is overruled.

Having overruled all Appellants’ issues on review, we affirm the judgment of the trial court.

LARSEN, J., not participating.

      . Tex. Bds. & Com.Code Ann. §§ 17.41-17.63 (Vernon 2002), hereinafter Texas Deceptive Trade Practices Act.

      . Each Appellant also sued the manufacturer of the heating unit as third-party defendant but the manufacturer was granted a directed verdict and is not a party to this appeal.

      . This is sometimes referred to as a "failure to find” or a "non-finding.”