text:
    The STATE of Texas, Appellant, v. Frank FORD, Appellee.
    Nos. 04-03-00628-CR to 04-03-00632-CR.
    Court of Appeals of Texas, San Antonio.
    Aug. 24, 2005.

      Ronald L. Sutton, Dist. Atty., Junction, Kurtis S. Rudkin, Law Office of Kurtis S. Rudkin, Boerne, for appellant.
    Stanley G. Schneider, Schneider & McKinney, P.C., Houston, David L. Bots-ford, Law Office of David L. Botsford, Austin, for appellee. '
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

The State of Texas appeals from the trial court’s order dismissing five indictments against Frank Ford for misuse of official information under § 39.06(c) of the Texas Penal Code. Tex. Pen.Code ANN. § 39.06(c) (Vernon 2003). We affirm the trial court’s judgment.

Factual and Procedural Baceground

This appeal arises out of the actions of attorneys Frank Ford and Tom Newton in representing their client, Harold Shields, in his federal civil rights and malicious prosecution suit. In March 2000, a Kerr County grand jury indicted Harold Shields for aggravated sexual assault based on evidence presented by an assistant district attorney, Donnie Jeanne Coleman, and an investigator, Carol Twiss. The presentation to the grand jury was not recorded or transcribed. The victim later recanted, and the State dismissed the indictment. Shields then filed a federal lawsuit against the county, the prosecutor and the investigator, alleging their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. In August 2001, Coleman and Twiss gave depositions in the federal suit in which they discussed their recollection of the evidence that was presented to the grand jury. Coleman testified that the grand jury had been presented with all of the evidence, the “good and the bad,” and, specifically, had been presented with information about Shields that did not match the victim’s description. Twiss testified similarly, but in less detail.

In October 2001, Shields’ attorneys, Ford and Newton, or their representatives, purportedly contacted several of the grand jurors who had returned the indictment against Shields seeking disclosure of the information that was presented to the grand jury. Ford and Newton also subpoenaed several of the grand jurors in an attempt to take their videotaped depositions for the federal lawsuit. Coleman and Twiss moved to quash the subpoenas and requested a protective order preventing Shields and his attorneys from any further contact with the grand jurors. The federal district judge quashed the subpoenas and granted the protective order. Only then did Ford and Newton petition the state district court under article 20.02(d) of the Texas Code of Criminal Procedure to order disclosure of the information presented to the grand jury. See Tex.Code CRIM. Proo. ANN. art. 20.02(d) (Vernon 2005). The trial court denied the request, and this court affirmed. See In re Grand Jury Proceedings, 129 S.W.3d 140, 144 (Tex.App.-San Antonio 2003, pet. denied) (holding prosecutors have no duty to present exculpatory evidence to a grand jury, and thus Shields could not show a particularized need to take the grand jurors’ depositions under article 20.02(d) of Texas Code of Criminal Procedure).

On February 26, 2003, Ford and Newton were indicted for “knowingly and with the intent to obtain a benefit, soliciting] or receiving] from a public servant, to wit: grand juror [name], information that said public servant had access to by means of his/her office, and that said information had not been made public.” See Tex. Pen. Code Ann. § 39.06(c). Each attorney was separately indicted for allegedly contacting five different grand jurors. Ford and Newton filed a joint motion to quash the indictments alleging six grounds. After a hearing, the trial court dismissed the indictments based on three of the six grounds alleged in the motion: failure to allege an offense as a matter of law because grand jury information does not meet the definition of “information that has not been made public” under § 39.06(d); inadequate notice of the type of “information” solicited or received; and inadequate notice of the “benefit” to be obtained from the information. See Tex. Pen.Code Ann. § 39.06(d) (Vernon 2003). The trial court also held that subsections (c) and (d) of § 39.06 are unconstitutionally void for vagueness. The State perfected its appeal. The five appeals relating to Ford were consolidated with each other, and the five appeals relating to Newton were similarly consolidated.

Analysis

On appeal, the State asserts: (1) the indictments tracked the statute and thus sufficiently alleged an offense under § 39.06(c); (2) the indictments adequately notified the defendants of the nature of the charges against them; and (3) subsections (c) and (d) of § 39.06 are not unconstitutionally void for vagueness. See Tex. Pen. Code AnN. §§ 39.06(c),(d). In their joint brief, Ford and Newton respond that: (1) the trial court did not abuse its discretion in quashing the indictments upon any of the six grounds alleged in their motion; (2) by not objecting during the hearing, the State waived any right to complain that they did not brief the constitutionality of the statute in their motion; and (3) the statute is unconstitutionally vague, and the indictments were properly quashed on that basis as well. This court may affirm the trial court’s dismissal of the indictments under any correct theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (if trial court’s decision is correct on any theory of law applicable to the case, it will be sustained even when the judge gives the wrong reason for his decision); see also McNair v. State, 75 S.W.3d 69, 71 (Tex.App.-San Antonio 2002, no pet.). Because we affirm the trial court’s judgment on the basis that the indictments failed to allege an offense as a matter of law, we address only that issue on appeal.

Motion to Quash Indictment

We begin our analysis by looking at the proper way to analyze the sufficiency of an indictment. To be sufficient, the face of an indictment must charge all the elements of an offense in plain and intelligible words so that a person of common understanding would know what is meant. Tex.Code CRim. Proc. Ann. arts. 21.02(7), 21.03, 21.11 (Vernon 1989); State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998). The indictment must allege the offense with that degree of certainty that will give the defendant adequate notice of the offense so he may prepare a defense and may plead the judgment in bar of any future prosecution for the same offense. Tex.Code Crim. Proc. Ann. arts. 21.04, 21.11 (Vernon 1989); Mays, 967 S.W.2d at 406. Generally, an indictment which tracks the language of a criminal statute is sufficient to allege an offense and to provide a defendant with notice of the charged offense. State v. Edmond, 933 S.W.2d 120, 127-28 (Tex.Crim.App.1996); see also DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988).

Upon the filing of a timely motion to quash, the indictment must be analyzed to determine whether it states on its face the facts necessary to allege that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged. DeVaughn, 749 S.W.2d at 67. The indictment must state facts which, if proved, show a violation of the law; the indictment must be dismissed if such facts would not constitute a criminal offense. Posey v. State, 545 S.W.2d 162, 163 (Tex.Crim.App.1977); State v. Williams, 780 S.W.2d 891, 894 (Tex.App.-San Antonio 1989, no pet.). Whether an indictment alleges an offense is a question of law subject to de novo review. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997) (purely legal questions are reviewed de novo); State v. Hoffman, 999 S.W.2d 573, 574 (Tex.App.-Austin 1999, no pet.) (failure of indictment to allege an offense is a question of law).

Failure to Allege an Offense as a Matter of Law

The statute under which Ford and Newton were indicted is entitled “Misuse of Official Information,” and provides as follows in relevant part:

(c) A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information that:
(1) the public servant has access to by means of his office or employment; and
(2) has not been made public.
(d) In this section, “information that has not been made public” means any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code.

Tex. Pen.Code Ann. §§ 39.06(c),(d). The offense is a third degree felony. Tex. Pen. Code Ann. § 39.06(e) (Vernon 2003).

The trial court quashed the indictments in part because they failed to allege an offense as a matter of law, finding that information presented to the grand jury was not information “prohibited'from disclosure under Chapter 552” of the Texas Government Code, as required by the definition of the offense in § 39.06(d). See Tex. Pen.Code Ann. § 39.06(d). Chapter 552 of the Government Code is commonly known as the Open Records Act. See Tex. Gov’t Code Ann. §§ 552.001-.353 (Vernon 2004). The State argues on appeal that the indictments tracked the statutory language and the statute is completely descriptive of the offense; therefore, the indictments sufficiently alleged an offense under § 39.06(c) of the Penal Code. See Mays, 967 S.W.2d at 406.

The criminal offense created by § 39.06(c) is further described by § 39.06(d)’s definition of “information that has not been made public.” Tex. Pen.Code Ann. §§ 39.06(c),(d). The definition contains two components stated in the conjunctive: information to which the public does not generally have access; and that is prohibited from disclosure under the Open- Records Act. Tex. Pen.Code Ann. § 39.06(d). With respect to the first component of the definition, it is well established that grand jury proceedings are secret, and that information presented to the grand jury is not generally available to the public. See Tex.Code Crim. PROC. Ann. arts. 19.34, 20.02(a) (Vernoni 2005); see also Ex parte Martin, 6 S.W.3d 524, 528 n. 15 (Tex.Crim.App.1999) (citing Stern v. State, 869 S.W.2d 614, 621-22 (Tex.App.Houston [14th Dist.] 1994), writ denied, and its discussion of the historical role of the grand jury and the statutory scheme making grand jury proceedings subject to strict secrecy). In recognition of the secrecy of grand jury proceedings, the legislature has provided a specific procedure for obtaining access to grand jury information based on a showing of particularized need. Tex.Code Crim. Proo. Ann. art. 20.02(d). The parties do not dispute, and we'concur, that information presented to a grand jury clearly constitutes “information to which the public does not generally have access,” and thus meets the first part of § 39.06(d)’s definition- of non-public information.

With respect to the second component of § 39.06(d)’s definition, that the subject information be “prohibited from disclosure under Chapter 552,” we look to the Open Records Act to determine whether it “prohibits disclosure” of grand jury information. We begin by examining the Act to determine what is “prohibited” from disclosure. The Open Records Act is broadly structured as follows: Subchapter A, which contains general provisions including definitions of terms used in. the Act; Subchapter B, which establishes the public’s right of access to public information; Subchapter C, which provides numerous exceptions to required disclosure; Sub-chapters D through F, which establish the procedures for the Act’s administration and the disclosure of public information; Subchapter G, which provides for Attorney General decisions on whether information is subject to disclosure; and Subchapters H and I, which provide methods for civil enforcement and penalties for criminal violations. See Tex. Gov’t Code Ann. §§ 552.001-.353.

While § 39.06(d) of the Penal Code uses the phrase “prohibited from disclosure under Chapter 552,” nowhere in the Open Records Act does it prohibit the disclosure of any information; rather, it provides a set of exceptions to required disclosure for certain categories of public information. Tex. Gov’t Code Ann. § 552.101-.142 (Vernon 2004); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). It is readily apparent that the terminology used in the penal statute does not match the terminology of the Open Records Act. We are, however, required to construe the two statutes so that they work together in order to bring about the legislature’s intent. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991) (courts interpret a statute according to the literal meaning of the words used, unless doing so leads to an absurd result that the legislature could not have intended, in which case, courts may consider extra-textual factors to arrive at a sensible interpretation); see also LaSara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984) (if possible, court is required to construe statutes in harmony with each other). Therefore, in order to give meaning to the penal statute, we will construe the phrase “prohibited from disclosure” in § 39.06(d) to mean the set of exceptions to disclosure listed in Subchap-ter C of the Act. See Tex. Gov.Code Ann. § 552.101-.142.

For purposes of our analysis, we must next determine whether the Open Records Act “prohibits disclosure” of grand jury information. The purpose of the Open Records Act is to provide public access to “complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov’t Code Ann. § 552.001(a) (Vernon 2004); City of Garland, 22 S.W.3d at 355-56. The Act defines “public information” as any information that is “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body_” Tex. Gov’t Code Ann. § 552.002(a) (Vernon 2004). Under the Act, public information is required to be made available to the public during normal business hours of the governmental body. Tex. Gov’t Code Ann. § 552.021 (Vernon 2004). Grand juries, however, are not designated as a “governmental body.” See Tex. Gov’t Code Ann. § 552.003(1)(A) (Vernon 2004). In addition, the judiciary is expressly excluded from the definition of a “governmental body;” therefore, judicial information is not “public information” subject to the Open Records Act. See Tex. Gov’t Code Ann. § 552.003(1)(B) (Vernon 2004); Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996).

Ford and Newton argue, and the trial court agreed, that because grand juries are considered part of the judiciary, information presented to a grand jury is exempt from the Open Records Act and its disclosure is neither permitted nor “prohibited” under the Act; therefore, the solicited information does not meet the second prong of the definition of non-public information and the indictments failed to allege an offense under § 39.06(c) of the Penal Code. In determining whether a particular entity is an extension of the judiciary for purposes of the Open Records Act, our focus is on the nature and functions of the entity. Benavides v. Lee, 665 S.W.2d 151, 151-52 (Tex.App.-San Antonio 1983, no writ). The grand jury has historically been characterized as an extension of the judiciary, “ ‘an arm of the court by which it is appointed’... rather than ... an autonomous entity.” Ex parte Edone, 740 S.W.2d 446, 448 (Tex.Crim.App.1987) (quoting W. LaFave & J. Israel, CRIMINAL PROCEDURE § 8.4 (1984)); see also Holmes, 924 S.W.2d at 923 (characterizing “judicial power” as the power to hear and decide issues of fact, to decide questions of law, to render judgment on the facts in accordance with' the law, and to execute judgment). We note that the Texas Attornéy General has also opined that the Open Records Act does not apply to information within the actual or constructive possession of a grand jury because the grand jury is an extension of the judiciary for purposes of the Open Records Act. Op. Tex. Att’y GeN. Ord-513 (1988) (further stating, “[ijnformation held by a grand jury ... is not itself subject to the Open Records Act”). We agree that based on its nature and functions the grand jury is an extension of the judiciary. See Harrison v. Vance, 34 S.W.3d 660, 663 (Tex.App.-Dallas 2000, no pet.); Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex.App.-Dallas 1998, no pet.); Euresti v. Valdez, 769 S.W.2d 575, 577-78 (TexApp.-Corpus Christi 1989, no writ).

Although the State concedes that the grand jury is an extension of the judiciary, it argues that because the Open Records Act refers to the judiciary and recognizes an alternative means of access to judicial information, it therefore “prohibits” disclosure of judicial information. See Tex. Gov’t Code Ann. §§ 552.Ó03(1)(B), 552.0035 (Vernon 2004). The State also argues that because the Act contains a general exception to disclosure for all information made confidential by other laws, it “prohibits” disclosure of grand jury information which is secret by nature. See Tex. Gov’t Code ANN. § 552.101 (Vernon 2004). The State’s arguments are fatally flawed because the Open Records Act clearly and unequivocally excludes judicial information from its scope. See Tex. Gov’t Code Ann. § 552.003(1)(B). In fact, the judiciary is the only branch of government that is expressly excluded from the definition of a “governmental body;” thus its information falls outside the definition of “public information” under the Act. See id.; Tex. Gov’t Code Ann. § 552.002(a). The State’s argument further fails to recognize that the first inquiry in determining whether particular information is even subject to the Act is to determine whether the information meets the Act’s definition of “public information.” See City of Garland, 22 S.W.3d at 359. Only after information is determined to be “public information” subject to the Act’s provisions does it become relevant whether such public information falls within an exception to disclosure provided by the Act. See id.; see also City of Garland v. Dallas Morning News, 969 S.W.2d 548, 554 (TexApp.-Dallas 1998), aff'd, 22 S.W.3d 351 (Tex.2000) (noting that “[wjhether the information is excepted from disclosure is irrelevant to the initial question of whether the information is public and, therefore, governed by the Act”). Our analysis need not extend beyond the initial inquiry because the Act expressly provides that judicial information is not “public information” subject to the Act. Tex. Gov’t Code Ann. §§ 652.00300(B), 552.002(a); see City of Garland, 22 S.W.3d at 357 (whether information is public information subject to the Open Records Act is a question of law).

Conclusion

We conclude that because the grand jury is an extension of the judiciary, and judicial information is not “public information” within the meaning of the Open Records Act, grand jury information is not subject to the Open Records Act. See City of Garland, 22 S.W.3d at 359. Because the Open Records Act is simply not applicable to information presented to a grand jury, the information that Ford and Newton allegedly solicited or received from the grand jurors did not fall within the Act’s scope, and thus could not be “prohibited from disclosure under Chapter 552,” as required by § 39.06(d) of the Penal Code. Accordingly, the indictments did not allege facts that, if true, would constitute an offense under § 39.06(c). See Tex. Pen.Code Ann. §§ 39.06(c),(d). We therefore affirm the trial court’s judgment dismissing the indictments on this basis. Because we affirm the trial court’s judgment on this ground, we do not address the remaining issues raised on appeal, including the constitutionality of § 39.06(c) and (d) of the Penal Code.

      . The elements of a malicious prosecution claim are: (1) a criminal prosecution was commenced against the plaintiff; (2) the prosecution was initiated or procured by the defendant; (3) the prosecution terminated in favor of the plaintiff; (4) the plaintiff was innocent; (5) the defendant lacked probable cause to instigate the prosecution; (6) the defendant acted with malice in bringing the prosecution; and (7) the plaintiff suffered damages as a result of the prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); San Antonio Credit Union v. O'Connor, 115 S.W.3d 82, 94 (Tex.App.-San Antonio 2003, pet. denied).

      .The victim had said the man’s name who molested her started with an "M;” the initials "MB” were on his mailbox; he had been molesting her for a long time; he showed her pictures on his computer; he had a particular type of truck; and he lived alone. Shields did not have an "M” in his name; had only moved to the Kerrville area within the last year; did not have a computer in his home; had a different type of truck; and lived with his wife.

      .The State is represented in these cases by an attorney pro tem. On January 12, 2005, this court issued two published opinions denying the appellees’ joint motion to dismiss the State's appeal for lack of jurisdiction and holding that the attorney pro tem had authority to file notice of appeal on behalf of the State. See State v. Ford, 158 S.W.3d 574, 581-82 (Tex.App.-San Antonio 2005, pet. dism'd); State v. Newton, 158 S.W.3d 582, 590 (Tex.App.-San Antonio 2005, pet. dism’d).

      . See this court's opinion in Appeal Nos. 04-03-00633-CR through 04-03-00637-CR.

      . The State also argues that Ford and Newton did not allege the statute is unconstitutional in their motion to quash, and thus waived the issue.

      . The legislature amended Chapter 552 of the Government Code effective September 1, 1995, and redesignated the Texas Open Records Act as the "Public Information Act." See Act of May 29, 1995, 74th Leg., R.S., ch: 1035, § 29, 1995 Tex. Gen. Laws 5127, 5142 (effective Sept. 1, 1995).

      . Attorney general opinions are not binding on the courts, but may be considered as persuasive. Holmes, 924 S.W.2d at 924.

      . Section 552.0035(a) of the Open' Records Act acknowledges that the public’s access to information maintained by the judiciary is governed by an alternative procedure outside the Act comprised of “rules adopted by the Supreme Court of Texas or ... other applicable laws and rules." Tex. Gov’t Code Ann. § 552.0035(a).


source: Caselaw Access Project

author: PHYLIS J. SPEEDLIN, Justice.

license: Public Domain

text:
    In re SHELL E & P, INC., and SWEPI, L.P.
    No. 04-05-00345-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 31, 2005.
    Rehearing Overruled Oct. 11, 2005.

      Marie R. Yeates, Catherine Bukowski Smith, James D. Thompson III, Vinson & Elkins L.L.P., Houston, Edmundo 0. Ramirez, Ellis, Koeneke & Ramirez, L.L.P., McAllen, for appellant.
    Eduardo Roberto Rodriguez, Mitchell C. Chaney, Sarah A. Nicolas, Jaime A. Saenz, Rodriguez, Colvin, Chaney & Saenz, L.L.P., Brownsville, Terry A. Canales, Alice, for appellee.
    Sitting: KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

The relators, Shell E & P, Inc. and SWEPI, L.P. (collectively “Shell”), seek mandamus relief from an order compelling the production of documents owned by Shell but in the temporary custody of attorneys Michael B. Silva and Paul F. Simpson, formerly of Silva & Simpson, L.L.P., and McGinnis, Lochridge & Kil-gore, L.L.P. (collectively the “Attorneys”). The Attorneys are the defendants in the underlying fee dispute lawsuit brought by their former clients, Arnoldo Casas, Carolina Casas, Ferman Casas, Jr., Juanita P. Casas, Irene Casas, Santos R. Casas, Ser-vando Casas, Yolanda Casas, Johnny Lane III, Lydia C. Pena, Ruben Pulido, and Clementina C. Pulido (collectively the “Ca-sas”), arising out of prior litigation between Shell and the Casas. Because we conclude that the trial court abused its discretion in holding that Shell had no standing to object to the disclosure of its documents and in compelling production of the Shell documents, we conditionally grant the writ of mandamus.

Factual and Procedural Background

In October 2000, the Casas employed attorneys Michael B. Silva and Paul F. Simpson of Silva & Simpson, L.L.P., to represent them with respect to certain of their oil and gas interests in Duval County, Texas. Silva’s and Simpson’s compensation was based on a contingency fee agreement with the Casas. Silva and Simpson subsequently filed suit against Shell on behalf of the Casas, alleging that Shell’s failure to drill on the Casas’ property had caused them damages (the “Shell lawsuit”). While the Shell lawsuit was pending, Silva and Simpson joined the law firm of McGinnis, Lochridge & Kilgore, but continued to represent the Casas. In May-2004, the Shell lawsuit was settled for a confidential amount; however, a dispute over the Attorneys’ fees arose. The Casas subsequently filed suit against the Attorneys alleging causes of action for breach of contract, deceptive trade practices and fraud, and seeking an accounting.

In connection with their pending suit against the Attorneys, the Casas requested the release of their original case file from the Shell lawsuit. The Attorneys delivered the Casas’ case file, but withheld certain documents that had been produced by Shell pursuant to the terms of an “Unopposed Protective Order Regarding Confidentiality” (the “Protective Order”) which was signed by Judge Gabert and entered in the Shell lawsuit. In response, the Casas filed a motion to compel the Attorneys to release the original case file, including the retained Shell documents which were described as: “(a) well logs, data and communications related thereto; (b) depletion plans and related communications; (c) exploration plans, data and communications related thereto; (d) documents and communications (including many emails) regarding the negotiation, acquisition and sale of interests; and (e) one deposition given by a member of Shell’s in-house computer department” (the “Shell documents”). The Attorneys filed a response stating they are prohibited from releasing the Shell documents to the Casas by the terms of the Protective Order, which restricts disclosure of information designated as “confidential” to only “qualified persons” for the limited purpose of the Shell lawsuit. The Attorneys argued they have only temporary custody of the Shell documents, and do not have legal possession or control of the documents.

The trial court held a hearing on the Casas’ motion to compel on May 16, 2005. Shell’s attorney appeared at the hearing and objected to production of the Shell documents because it would violate the Protective Order. The Casas argued that Shell had no standing to object to a discovery request made in the fee lawsuit to which it was not a party. The trial court permitted Shell’s attorney to participate in the hearing, but subsequently sustained the Casas’ objection and ruled that Shell had no standing to object to production of the Shell documents. On May 17, 2005, the trial court entered two orders: (1) an order sustaining the Casas’ objection to the appearance of Shell’s counsel and striking the Shell attorney’s statements from the record of the motion to compel hearing; and (2) an order compelling the Attorneys to promptly deliver the Casas’ original file including the previously retained Shell documents. Shell filed this petition for mandamus challenging the trial court’s orders, along with a motion for a temporary stay. We granted the motion for temporary relief.

STANDARD OF REVIEW

Mandamus relief is available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. In re Kuntz, 124 S.W.3d 179, 180 (Tex.2003) (orig.proceeding). With respect to factual issues, an abuse of discretion is shown when it is clear from the record that the trial court could have reasonably reached only one decision. Id. at 181; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig.proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Therefore, the trial court’s failure to analyze or apply the law correctly, “as when a discovery order conflicts with the Texas Rules of Civil Procedure,” will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Kuntz, 124 S.W.3d at 181; Walker, 827 S.W.2d at 840. A party does not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s error in compelling discovery. Kuntz, 124 S.W.3d at 181; Walker, 827 S.W.2d at 843.

Analysis

We first address the issue of whether Shell, a non-party in the underlying case, had standing to object to the disclosure of documents admittedly owned by it but in the temporary custody of the Attorneys under the terms of the Protective Order entered in the prior litigation. The Casas argue that Shell filed no pleadings and presented no evidence in the trial court, and thus as a non-party had no standing to object to the disclosure of its documents. We disagree. While Shell is not a party to the fee lawsuit between the Casas and the Attorneys, Shell is a party to the agreed Protective Order entered in the prior litigation between it and the Ca-sas. There is no dispute that the Shell documents sought by the Casas were designated “confidential information” and produced to the Attorneys under the terms of the Protective Order for use only in the Shell lawsuit. The Protective Order provides that confidential documents produced by Shell must be returned to Shell at the conclusion of the litigation, but permits the Attorneys to retain one original or copy of the documents for 24 months after conclusion of the litigation, subject to the continuing effect of the Protective Order. As noted, the Shell lawsuit was resolved through settlement and has thus been concluded. As permitted, the Attorneys have retained custody of the Shell documents during the 24-month period following the settlement. The Protective Order expressly states that its provisions continue to be binding after conclusion of the Shell lawsuit.

Under Rule 192.6(a) of the Texas Rules of Civil Procedure, Shell had the right to object to disclosure of its confidential documents and to seek enforcement of the Protective Order in the underlying case. Tex.R. Civ. P. 192.6(a) (providing that “any ... person affected by” a discovery request may object, assert a privilege, or move for a protective order). In a similar discovery dispute, the Texas Supreme Court recently acknowledged that a non-party owner of documents has the right to seek protection from disclosure of its documents under Rule 192.6(a). Kuntz, 124 S.W.3d at 184 n. 4 (also noting that the plaintiff may seek production of the documents directly from the non-party owner under Tex.R. Civ. P. 205). As in this case, the owner of the documents in Kuntz was not a party and had not made a formal appearance in the underlying case, but participated in the discovery proceedings by objecting to the disclosure of its documents which were subject to a confidentiality agreement. Id. at 182-83 (owner of the documents appeared as amicus). Here, counsel for Shell was served with a copy of the Casas’ motion to compel listing Shell as a “potentially interested party,” and appeared at the hearing after learning of the setting a few days before. Shell participated in the hearing over the Casas’ objection, and argued that the Attorneys’ disclosure of the Shell documents was prohibited by the Protective Order. Counsel also warned that Shell would sue the Attorneys if the documents were disclosed in violation of the Protective Order.

We conclude that Shell, as the non-party owner of the documents, had the right under Rule 192.6(a) to seek protection from disclosure of its documents in the trial court, whether through an objection, assertion of privilege, motion for a protective order, or motion for enforcement of an existing protective order. Id. at 184 n. 4. The trial court’s May 17, 2005 order holding that Shell lacks standing to object to the disclosure of its documents conflicts with Rule 192.6(a) of the Texas Rules of Civil Procedure; therefore, we hold the trial court clearly abused its discretion. Id. at 181 (failure of trial court to analyze or apply the law correctly, such as when discovery order conflicts with rules of civil procedure, constitutes abuse of discretion); see also Walker, 827 S.W.2d at 840.

We next determine whether the trial court clearly abused its discretion in compelling production of the Shell documents. Shell’s objection, as well as the Attorneys’ objection, was that the Attorneys did not have legal possession of the Shell documents, only temporary custody under the terms of the Protective Order, and that disclosure of the Shell documents to the Casas would subject them to potential liability for violating the Protective Order. First, we address the Casas’ argument that because the Protective Order was not filed in the underlying fee dispute case, it was not before the trial court when it ruled on the motion to compel. This argument is disingenuous. It is clear from the record of the hearing on the motion to compel, as well as from references in the Casas’ own motion to compel, the Attorneys’ response and the trial court’s order, that the trial judge and all the interested parties were well aware of the existence and terms of the Protective Order entered in the Shell lawsuit. In fact, the Protective Order was agreed to by the Casas and was entered by the same trial judge who presided over the motion to compel hearing. Moreover, the Casas did not raise any objection in the trial court that the Protective Order, referred to by all participants and the judge, was not properly before the court in the discovery proceeding. The trial judge was entitled to take judicial notice of his own prior order entered in a related case between substantially the same parties. Tex.R. Evid. 201(c) (trial court may take judicial notice of adjudicative facts, whether requested or not); see Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (Tex.1961); Briones v. Solomon, 769 S.W.2d 312, 319 (Tex.App.San Antonio 1989, writ denied); Sierad v. Barnett, 164 S.W.3d 471, 481 (TexApp.-Dallas 2005, no pet.) (trial court need not announce it is taking judicial notice).

Finally, with respect to the merits of Shell’s petition, Shell does not dispute that the Casas are entitled to production of their client case file from the Shell lawsuit. The issue is whether the Attorneys must also produce the confidential Shell documents that were disclosed during the prior lawsuit under the terms of the Protective Order. Rule 192.3(b) provides that a party may obtain discovery of relevant documents, and that a person is required to produce such documents that are •within the person’s “possession, custody, or control.” Tex.R. Civ. P. 192.3(b). “Possession, custody, or control” of an item for purposes of discovery is defined as “physical possession of the item or ... a right to possession of the item that is equal or superior to the person who has physical possession of the item.” Tex.R. Civ. P. 192.7(b); see GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex.1993) (the phrase “possession, custody or control” within the meaning of Rule 192.3(b) includes actual physical possession, constructive possession, and the right to obtain possession from a third party such as an agent or representative).

In Kuntz, the Supreme Court held that a person’s mere access to a document does not constitute “physical possession” of the document under the definition of “possession, custody or control” stated in Rule 192.7(b). Kuntz, 124 S.W.3d at 184. There, Kuntz’s ability to access confidential documents that his corporate employer had prepared for a business client did not constitute possession of the documents within the meaning of the discovery rules. Id. In addition, Kuntz’s production of the documents would have violated the confidentiality agreement with his employer, and the consulting agreement between his employer and its client, thereby subjecting him to potential liability. Id. Under Kuntz, it is clear that the Attorneys do not have legal possession of the Shell documents within the meaning of Rule 192.3(b). In addition, as in Kuntz, requiring the Attorneys to produce the Shell documents to the Casas would force them to violate the Protective Order, and subject them to a potential suit for damages by Shell. See id.

The Casas alternatively argue that disclosure of the Shell documents to them would not violate the Protective Order because as parties they are “qualified persons” to whom the Protective Order permits disclosure. We disagree. The Protective Order’s definition of a “qualified person” limits permissible disclosure to “parties ... to whom disclosure of Confidential Information is reasonably necessary for purposes of the administration, preparation, trial, or appeal of this Litigation.” The litigation to which the Protective Order refers is the Shell lawsuit, which has been concluded. As the Casas also recognize, their suit against the Attorneys constitutes a separate and distinct, although related, case. Disclosure of the Shell documents to the Casas in this fee dispute case would violate the continuing terms of the Protective Order.

Accordingly, we hold the trial court abused its discretion in finding that Shell did not have standing to object to disclosure of its documents under Rule 192.6(a), and in compelling production of the Shell documents that are subject to a Protective Order between the Casas and Shell. We further hold that Shell does not have an adequate remedy by appeal. See Kuntz, 124 S.W.3d at 184. Therefore, we conditionally grant the writ of mandamus. The writ will only issue if the trial judge fails to withdraw his May 17, 2005 orders holding Shell lacks standing and compelling production of the Shell documents within ten days from the date of our opinion and order.

      . Cause No. DC-00-344, styled Arnoldo Casas, et al. v. SWEPI L.P. and Shell Western E & P, Inc., in the 229th Judicial District Court, Duval County, Texas, the Honorable Alex W. Gabert presiding.

      . The parties dispute whether the Casas have properly alleged a cause of action for breach of fiduciary duty; we need not decide that issue in this mandamus proceeding.

      . It is undisputed that the Shell documents were designated as "confidential” under the Protective Order, and that the Casas did not challenge the confidential designation at the time the documents were produced in the Shell lawsuit. "Qualified persons” are de-fmed in the Protective Order to include the attorneys, parties and trial court, their employees, and other interested persons; however, the definition of all "qualified persons” is restricted to the Shell lawsuit.

      .Shell’s counsel also moved for a continuance to enable Shell to prove the trade secret status of the documents. The continuance was denied upon the Casas’ objection.

      . The Casas’ objection was that, "there is nothing in this Court’s record to show that these documents belong to Shell.” In addition, the Casas argued that the trial court had the right to change the Protective Order, as it was the court’s own order, in order to require production of the documents.


author: SARAH B. DUNCAN, Justice.

text:
    The CITY OF LAREDO, Texas; The Laredo Chief of Police, Agustín Dovalina; and Daniel Migura, Edward Sherwood, and Joaquin Romero, Jr., Individually and as Members of the Fire Fighters’ and Police Officers’ Civil Service Commission of Laredo, Appellants, v. Jorge A. ALMAZAN, Appellee.
    No. 04-04-00689-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 31, 2005.

      Jaime L. Flores, City Atty.-Webb County, Jerry Bruce Cain, Asst. City Atty., Laredo, for appellants.
    Albert A. Flores, Law Office of Albert A. Flores, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

The City of Laredo, the Laredo Police Chief, and Daniel Migura, Edward Sherwood, and Joaquin Romero, Jr., individually and as members of the Fire Fighters’ and Police Officers’ Civil Service Commission of Laredo appeal the trial court’s summary judgment in favor of police officer Jorge A. Almazan. We hold the requirement in section 143.052(d) of the Texas Local Government Code that a written statement of suspension advise the suspended officer that he has ten days in which to file an appeal is mandatory but not jurisdictional; and section 143.052(c) requires a department head to cause a copy of the written statement to be personally delivered to the suspended officer, not for the department head to do so personally. We therefore reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

Factual and Procedural Background

Laredo police officer Jorge A. Almazan received notice that he had been indefinitely suspended in a written statement that informed him that chapter 143 of the Texas Local Government Code permitted him to appeal his suspension to the Laredo Fire Fighters’ and Police Officers’ Civil Service Commission (“the Commission”) but failed to inform him that he was required to perfect his appeal within ten days. Despite not having received this notice, Almazan complied with the ten-day deadline, although he “did not, as statutorily required, specifically request a hearing before the Commission.” City of Laredo v. Almazan, 115 S.W.3d 74, 75 (Tex.App.San Antonio 2003, no pet.). “Nevertheless, the Commission set a date for a hearing.” Id. In response to Almazan’s appeal letter, the City of Laredo filed a plea to the jurisdiction, arguing the Commission’s jurisdiction had not been invoked because Almazan’s notice of appeal failed to specifically request a hearing. Id. The Commission agreed and dismissed Alma-zan’s appeal. Id.

Almazan appealed to the district court, which denied the City’s motion for summary judgment “regarding the effectiveness of Almazan’s appeal letter,” “granted Almazan’s summary judgment motion regarding the ineffectiveness of the suspension letter on the grounds that it failed to give notice, as required by the statute, that Almazan had ten days to file his appeal,” and “ordered Almazan’s reinstatement with back pay and awarded $5000 in attorney’s fees.” Id. at 76. The City appealed. This Court affirmed the trial court’s order insofar as it granted Almazan’s motion for summary judgment on the ground that his appeal letter was effective to invoke the Commission’s jurisdiction and awarded Al-mazan his attorney’s fees but reversed the trial court’s order insofar as it granted Almazan’s motion for summary judgment on the ground that the written suspension statement was ineffective because “the Commission did not rule on the effectiveness of the suspension letter....” Id. at 78. The cause was remanded to the trial court with instructions to remand the cause to the Commission “to conduct a hearing on the remaining issues of Alma-zan’s appeal of his suspension.” Id. at 79. On remand, the Commission determined the written suspension statement was effective to invoke its jurisdiction and again upheld Almazan’s suspension. ' Almazan again appealed to the district court, which granted Almazan’s motion for summary judgment, reversed the Commission’s decision, reinstated Almazan, and awarded Al-mazan additional attorney’s fees. The City has again appealed.

STANDARD OF REVIEW

We review a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Tex.R. Civ. P. 166a(c). We view the evidence in the light most favorable to the respondent and disregard all contrary evidence and inferences. Provident Life, 128 S.W.3d at 215.

Commission’s Jurisdiction

The City first argues the trial court erred in granting Almazan’s motion for summary judgment on the ground that the suspension letter failed to invoke the Commission’s jurisdiction by failing to inform Almazan that he had ten days to appeal his suspension. We agree.

Section 143.052 of the Texas Local Government Code sets forth the procedures for disciplinary suspensions. First, the department head “shall, within 120 hours after the hour of suspension, file a written statement with the commission giving the reasons for the suspension” and “immediately deliver a copy of the statement in person to the suspended fire fighter or police officer.” Tex. Loc. Gov’t Code Ann. § 143.052(c) (Vernon 1999). “The written statement ... must point out each civil service rule alleged to have been violated ... and must describe the alleged acts of the person that the department head contends are in violation of the civil service rules.” Id. § 143.052(e) (emphasis added). If these requirements are not met, section 143.052(f) expressly provides that “the commission shall promptly reinstate the person.” Id. § 143.052(f). Additionally, “[t]he copy of the written statement must inform the suspended fire fighter or police officer that if the person wants to appeal to the commission, the person must file a written appeal with the commission within 10 days after the date the person receives the copy of the statement.” Id. § 143.052(d) (emphasis added). However, neither section 143.052 nor any other statute prescribes the consequences for failing to comply with this requirement.

Almazan argues section 143.052(d)’s notice requirement is jurisdictional because it states the written statement “must” contain the notice. “When used in a statute, the term ‘must’ creates or recognizes a condition precedent.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) (citing Tex. Gov’t Code Ann. § 311.016(3)). Accordingly, the term “must” is “generally recognized as mandatory, creating a duty or obligation.” Helena Chem. Co., 47 S.W.3d at 493. “To determine whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction.” Id. at 494. However, “[e]ven if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional.” Id. “When a statute is silent about the consequences of noncompliance, we look to the statute’s purpose to determine the proper consequences.” Id. In conducting this inquiry, we must remain mindful that “ ‘[t]he classification of a matter as one of [subject-matter] jurisdiction ... opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment.’ ” Univ. of Tex. Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358-59 (Tex.2004) (quoting Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000)). Accordingly, we “must ask, in trying to determine legislative intent, whether the Legislature intended” to “deprive[] the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law.” Id. at 359.

“The Legislature enacted the Civil Service Act for the express purpose of ‘securing] efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.’ ” Proctor v. Andrews, 972 S.W.2d 729, 737 (Tex.1998) (quoting Tex. Loc. Gov’t Code § 143.001); see Jones v. Ojeda, 21 S.W.3d 569, 571 (Tex.App.-San Antonio 2000, pet. denied) (“The Civil Service Act was designed to protect tenured city employees.”). In light of the legislative purpose of protecting tenured public servants, the importance of the section 143.052(d) notice requirement cannot be overstated, particularly since the supreme court has held a civil service commission has no jurisdiction to consider an out-of-time appeal. See City of Temple Firemen’s and Policemen’s Civil Serv. Comm’n v. Bender, 787 S.W.2d 951, 953 (Tex.1990) (holding amended notice of appeal filed after the ten-day deadline failed to invoke commission’s jurisdiction). Given these considerations, we conclude the section 143.052(d) notice requirement is mandatory. But is it jurisdictional? We conclude it is not for three reasons. First, section 143.052(d)’s statutory predecessor, section 16 of article 1269m, was also phrased in mandatory terms (“shall”) but nonetheless construed as non-jurisdictional. See Vick v. City of Waco, 614 S.W.2d 861, 862-63 (Tex.Civ.App.-Waco 1981, writ ref d n.r.e.). Second, the legislature clearly indicated its ability to dictate a noncompliance penalty by providing in subsection (f) that the failure to comply with subsection (e) would result in reinstatement. Finally, and most importantly, to construe the section 143.052(d)’s notice requirement as jurisdictional would be to hold the trial court was without subject matter jurisdiction in every case involving a noncomplying notice — a holding that would render the judgments in all such cases void. We are certain this result would not comport with the legislative intent in enacting the Civil Service Act. We therefore hold section 143.052(d)’s notice requirement is not jurisdictional. Accordingly, the trial court erred in granting Almazan’s motion for summary judgment on this ground.

DELIVERY OF SUSPENSION LETTER

The City next argues the trial court erred in granting Almazan’s motion for summary judgment on the ground that the written statement failed to invoke the Commission’s jurisdiction because a copy was not delivered to Almazan by Chief Dovalina personally. We again agree.

If a police officer is suspended by a department head, “[t]he department head shall immediately deliver a copy of the statement in person to the suspended ... police officer.” Tex. Loc. Gov’t Code Ann. § 143.052(c) (Vernon 1999). However, section 143.052(c) does not require the department head to personally deliver the written statement to the suspended officer; all this section requires is that the department head cause the officer to personally receive a copy of it. See Walker v. City of Houston, 466 S.W.2d 607, 609 (Tex.Civ.App.-Houston [14th Dist.] 1971, no writ) (construing section 143.052(c)’s statutory predecessor to require not that department head personally deliver statement but that suspended officer personally receive it). Here, it is undisputed that Chief Dovalina, although he did not personally deliver a copy of the statement to Alma-zan, caused an internal affairs officer to personally deliver it to Almazan. No more is required.

Conclusion

The requirement in section 143.052(d) that a written statement of suspension must inform the suspended officer that a written appeal must be filed within ten days is mandatory but not jurisdictional; and the requirement in section 143.052(c) that the department head deliver a copy of the statement “in person” to the suspended officer requires only that the department head cause a copy of the statement to be personally delivered to the suspended officer. Accordingly, we hold the trial court erred in granting Almazan’s motion for summary judgment and therefore reverse its judgment and remand the cause to that court for further proceedings consistent with this opinion. In light of our disposition, we need not reach the City’s final issue regarding the award of attorney’s fees.


author: SANDEE BRYAN MARION, Justice. LÓPEZ, Chief Justice,

text:
    Anthony GIGLIOBIANCO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-02-00895-CR.
    Court of Appeals of Texas, San Antonio.
    Aug. 31, 2005.
    Rehearing Overruled Oct. 10, 2005.
    Discretionary Review Granted March 1, 2006.

      Adam L. Kobs, Mark Stevens, San Antonio, for appellant.
    Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This appeal is on remand from the Texas Court of Criminal Appeals. On original submission, we held that the trial court committed reversible error in admitting the results of a breath test in the absence of retrograde extrapolation citing this court’s opinion in Stewart v. State, 103 S.W.3d 483 (Tex.App.-San Antonio 2003), rev’d, 129 S.W.3d 93 (Tex.Crim.App.2004). After reversing this court’s opinion in Stewart, the Texas Court of Criminal Appeals vacated our judgment in the instant appeal and remanded the eause to this court for reconsideration in light of its opinion in Stewart. Gigliobianco v. State, No. 1851-03, 2004 WL 3092759 (Tex.Crim.App. May 19, 2004). We subsequently abated the appeal on remand pending the Court of Criminal Appeals’ decision in State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App.2005). The appeal was reinstated after the opinion was issued in Mechler, and both parties were permitted to rebrief the issues on remand.

Defendant, Anthony Gigliobianco, challenges his conviction of driving while intoxicated asserting that the trial court abused its discretion in admitting intoxilyzer test results in violation of Rule 403 and Rule 702 of the Texas Rules of Evidence. Defendant also contends that the trial court violated his statutory and constitutional rights by refusing to include a presumption of innocence instruction in the jury charge and erred in overruling his objections to certain testimony. We affirm.

RULE 403 CHALLENGE

In his first issue, defendant asserts his breath test results should have been excluded because this evidence was unfairly prejudicial, misleading, and confusing. A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. Mechler, 153 S.W.3d at 439. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id. at 440.

In Mechler, the Texas Court of Criminal Appeals analyzed the admissibility of intoxilyzer test results in the absence of retrograde extrapolation in response to a Rule 403 challenge. Under Rule 403, all relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. Rule 403 does not exclude all prejudicial evidence; rather, it focuses only on the danger of “unfair” prejudice. Mechler, 153 S.W.3d at 440. “Unfair prejudice” pertains “only to relevant evidence’s tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.” Id.

We assess four nonexclusive factors when determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. Id.; Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003). These factors include: (1) “how eompellingly the evidence serves to make a fact of consequence more or less probable”; (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) “the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense”; and (4) “the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.” Mechler, 153 S.W.3d at 440—41; Manning, 114 S.W.3d at 926.

Here, defendant was stopped at 9:46 p.m. and submitted two breath test samples approximately eighty minutes after he stopped driving. Those samples showed a blood alcohol content level of .09 and .092. Although these results are distinguishable from cases previously decided by this court, the results nonetheless were probative of whether defendant consumed alcohol before operating - a motor vehicle and whether he was impaired as a result of his alcohol consumption. Mechler, 153 S.W.3d at 440 (holding that intoxilyzer test results are probative evidence of intoxication under both the per se and impairment theories of intoxication). Next, although these test results are prejudicial to defendant, they are not unfairly prejudicial because they relate directly to the charged offense. Id. at 440-41 (holding that “unfair prejudice” only occurs if relevant evidence tends to tempt a jury into finding guilt on grounds other than proof of the charged offense). Because the in-toxilyzer results relate directly to the charged offense, the amount of time the State spent developing the evidence is inconsequential because it could not have distracted the jury from the charged offense. Id. at 441.

Finally, in addition to the intoxilyzer test results, the record includes Officer Heim’s testimony regarding his reported observations of defendant’s bloodshot eyes, slurred speech, odor of alcohol, and poor performance on field sobriety tests. The record also includes a videotape of the stop on which defendant admits that he had consumed alcohol. In light of this other probative evidence, we conclude “the State [did] not have a great need for the test results.” Mechler, 153 S.W.3d at 441-42.

After considering all the factors, we conclude the trial court’s ruling was not outside the “zone of reasonable disagreement.” Id. at 440. Accordingly, we hold the trial court did not abuse its discretion in admitting the intoxilyzer test results.

RULE 702 CHALLENGE

In his second issue, defendant asserts the breath test results should have been excluded under Rule 702 because, in the absence of retrograde extrapolation proving his alcohol content at the time he drove, the test results did not assist the jury to understand the evidence or determine a fact in issue. Defendant also complains that the State’s expert’s testimony did not “fit” the facts of the case because the expert did not know any of defendant’s characteristics or his alcohol content when he drove. Instead, defendant contends the expert was only able to say he had an alcohol content greater than .008 when tested. According to defendant, “testimony about his intoxication more than an hour after he drove was not helpful to the jury, which was required to determine whether he drove while intoxicated.”

Admission of expert testimony is governed by Texas Rule of Evidence 702. When addressing the admissibility of expert testimony, the trial court’s “first task is to determine whether the testimony is sufficiently rehable and relevant to help the jury in reaching accurate results.” Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Expert testimony must be sufficiently tied to the facts to meet the simple requirement that it be helpful to the jury. See Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996) (discussing the “fit” requirement of Rule 702).

Defendant does not challenge the reliability of the expert’s testimony regarding the breath test results, but only asserts admission of the test results and the testimony regarding the test results was not helpful to the jury in the absence of retrograde extrapolation. Here, the jury was required to determine whether defendant’s blood alcohol concentration was .08 or more at the time he drove (per se theory of intoxication) or that he did not have the normal use of his physical faculties at the time he drove by reason of the introduction of alcohol into his body (impairment theory of intoxication). Although the breath test results might not have been conclusive proof that defendant was intoxicated at the time he drove, that is of no consequence. See Stewart, 129 S.W.3d at 96. The jury did not need to establish defendant’s exact blood alcohol concentration at the time he drove. Id. at 97. The jury only needed to believe beyond a reasonable doubt that he was intoxicated under either theory. Id. Despite defendant’s claim, the breath test results were helpful to the jury even without retrograde extrapolation because the results provide evidence that defendant had consumed alcohol. See id. at 96 (addressing this issue in terms of relevancy under Rule 401). Thus, the intoxilyzer test results and the expert testimony were properly admitted because “they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.” Id. at 97. Accordingly, we hold the trial court did not abuse its discretion in admitting the intoxilyzer test results.

PRESUMPTION OF INNOCENCE

Defendant asserts the trial court violated his federal constitutional and statutory rights by denying his request to include an instruction on the presumption of innocence in the jury charge.

Alleged Due Process Violation

Defendant contends that the failure to include the presumption of innocence instruction violated his due process rights under the United States Constitution. There is no constitutional requirement that an instruction on the presumption of innocence be given in every criminal trial. Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979). Therefore, a trial court’s failure to give an instruction on the presumption of innocence “must be evaluated in light of the totality of the circumstances including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors, to determine whether the defendant received a constitutionally fair trial.” Id.; see also Hernandez v. State, 107 S.W.3d 41, 45 (Tex.App.-San Antonio 2003, pet. ref'd).

In this case, the totality of the circumstances indicate the trial court did not err by denying defendant’s requested instruction. Although the jury charge did not include a specific instruction on the presumption of innocence, the charge instructed the jury that it could find defendant guilty only if it believed the evidence beyond a reasonable doubt. The trial judge also instructed the jury not to consider defendant’s choice to not testify and not to consider any evidence not introduced at trial. Finally, the charge instructed the jury that because the jurors are not witnesses, they should not relate to other jurors their own experience or knowledge.

The weight of the evidence at trial was such that the jury could have found defendant guilty of driving while intoxicated. During trial, the jury heard Officer Heim’s testimony regarding his reported observations of defendant’s bloodshot eyes, slurred speech, odor of alcohol, and poor performance on field sobriety tests, including the horizontal nystagmus test. The jury also viewed a videotape of the stop in which defendant admits he had consumed alcohol. The jury also heard that defendant submitted two breath test samples approximately eighty minutes after he stopped driving. Those samples showed defendant had a blood alcohol content level of 0.09 and 0.092, which is above the legal limit of .08.

During voir dire, the trial court explained the presumption of innocence by stating, “As you know, in the United States our law is a person is presumed innocent until each and every element of the offense charged is proven beyond a reasonable doubt ... at this point the law presumes the person innocent.” The trial court also informed the jury that the burden of proof “stays on the State the whole time.” The trial court further emphasized, “the burden to prove those charges beyond a reasonable doubt remains on the State throughout the entire case. It never shifts over to the defendant to prove anything because our law presumes that he is innocent.” The State also explained its burden of proof and the presumption of innocence stating, “everybody understands that he is totally innocent as he sits here right now? The State has to prove everything. He does not have to disprove anything.”

Defense counsel also emphasized the presumption of innocence during voir dire, stating, “[The judge] talked about the presumption of innocence. Everybody has heard that, right? We all know that in this country you are presumed to be innocent. And it is one of the few countries in the world in which we are presumed to be innocent. In most of the countries in the world, a person comes to court and they presume he is guilty. He has to prove he is innocent. Well, you might prefer to be in a system like that, but the system you are in is the one where people are presumed innocent. So that means you have to look at Anthony right now as .he sits there and say, He is innocent as far as I am concerned.” Defense counsel further explained, “So what does the State have to do to overcome the presumption of innocence? The law tells very specifically what it has to do. These prosecutors have to bring you proof, not just proof of any sort, but proof of a particular quality and quantity, namely, proof beyond a reasonable doubt.” Defense counsel emphasized the presumption again toward the end of his general voir dire, stating, “We have got to have some people who come in here and are willing to look at him and presume he is innocent and to make the State prove its case beyond a reasonable doubt.” Both the prosecutor and defense counsel emphasized the need to prove the elements of the offense beyond a reasonable doubt in closing arguments. The presumption of innocence “operates at the guilt phase of a trial to remind the jury that the State has the burden of establishing every element of the offense beyond a reasonable doubt.” Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993). Looking at the totality of the circumstances, we hold the trial court did not violate defendant’s constitutional rights by refusing his requested instruction.

Alleged Failure to Set Forth Law Applicable to the Case.

Defendant contends that the failure to include the presumption of innocence instruction violated his statutory rights under articles 36.14 and 36.15 of the Texas Code of Criminal Procedure. A statutory charge error under articles 36.14 through 36.19 is reviewed under the standard set forth in Almanza v. State. Rose v. State, 752 S.W.2d 529, 553 (Tex.Crim.App.1987). Almanza instructs an appellate court to undertake a two-step review; first, the court must determine whether error actually exists in the charge; second, if the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Alleged error in the charge is reviewed by looking at the entire charge, the state of the evidence, the argument of counsel, and any other relevant information contained in the record. Id.

Article 36.14 states that the trial court must “deliver to the jury ... a written charge distinctly setting forth the law applicable to the case ...” Tex.Code Crim. PróC. ANN. art. 36.14 (Vernon Supp. 2005). However, nothing in articles 36.14 or 36.15 requires a trial court to give an instruction on the presumption of innocence. See Tex.Code Crim. PROC. Ann. art. 36.14, 36.15. In fact, article 36.15 grants the trial court the discretion to deny a charge. See Tex.Code Crim. Proo. ANN. art. 36.15 (“The court shall give or refuse these charges”). In the present case, a review of the entire jury charge, the closing arguments for the State and the defense, as well as the evidentiary record, demonstrates that the jury was repeatedly instructed on the State’s burden of proof and defendant’s presumption of innocence. That is, the State was required to prove the charged offense beyond a reasonable doubt, and if the jury had a reasonable doubt, it must find defendant not guilty. Accordingly, we find the challenged jury instruction was appropriate. Therefore, we hold the trial court did not violate defendant’s statutory right’s by refusing his requested instruction.

TESTIMONY REGARDING EFFECT OF TEST RESULTS

In his fifth issue, defendant contends the trial court erred in overruling his objection that Officer Heim was not qualified to testify that the intoxilyzer test results indicated to him that defendant was intoxicated. The erroneous admission of evidence is nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Nonconstitutional error “that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King, 953 S.W.2d at 271. A criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

We conclude the trial court’s error, if any, did not influence the jury’s verdict because another State expert also testified about the test results. George McDougall, whose expertise was emphasized by the State, stated that defendant’s test results were greater than 0.08 and then immediately stated that a person with an alcohol concentration of 0.08 would have lost the normal use of his mental and/or physical faculties. Because McDougall’s testimony was substantially similar to that of Officer Heim, the error, if any, was harmless.

CONCLUSION

We overrule defendant’s issues and affirm the trial court’s judgment.

Dissenting opinion by ALMA L. LÓPEZ, Chief Justice.

LÓPEZ, Chief Justice,

dissenting.

For the reasons stated below, I respectfully dissent from the majority’s holding that the trial court did not err in overruling Gigliobianco’s Rule 403 objection to the admissibility of the breath test results. The majority concludes that the first three nonexclusive factors weigh in favor of admissibility. The primary stumbling block with regard to the second and third factors is language in Mechler which appears to dictate that these factors will always favor admissibility, truncating the need for any additional analysis regardless of the facts presented. Although the majority notes that the test results in the instant case are distinguishable from the results in cases previously decided by this court, the majority concludes that the first factor weighs in favor of admissibility because the results were “nonetheless probative” of whether Gigliobianco consumed alcohol and was impaired as a result. The majority concedes that the fourth factor weighs against admissibility.

Although Mechler may dictate that the second and third factors always weigh in favor of admissibility, I agree with Judge Cochran that the four expressly defined factors should not be given equal weight so that in every case the trial court cannot be said to have abused its discretion because Mechler dictates that two of the four factors favor admissibility. In addition, I believe the trial court cannot ignore the impact the admission of the intoxilyzer evidence has on the presentation of other evidence. I believe this impact can and should be considered by the trial court as an additional factor in the balancing test. Most importantly, I believe this case presents a cogent argument for the Texas Court of Criminal Appeals to reconsider the analysis set forth in Judge Cochran’s concurring opinion in Mechler and to provide further guidance to the trial and appellate courts regarding the application of the Rule 403 balancing test in this context.

Probative Value

“The first factor looks to the evidence’s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable.” Id. “[T]he relative probative value of the test depends primarily upon two variables: 1) the degree to which the test result exceeds the legal limit of 0.08%; and 2) the amount of time elapsed between driving and the taking of the test.” Id. at 449 (Cochran, J., concurring). As Judge Cochran explains:

The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or above 0.08% at the time of driving. The stronger the inference of a BAC of 0.08% or greater at the time of driving, the less significant is the necessity for expert retrograde extrapolation testimony. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence that relates an accused’s BAC test result back to the time of driving. When a test is obtained long after the arrest and the result is at or below the legal limit, the logical inference that the person had a 0.08% BAC at the time of driving may be so tenuous that a trial judge appropriately exercises his discretion by excluding that specific test result under Rule 403 absent expert testimony that extrapolates, the test result back to the time of driving.

Id.

The reason the probative value of the test result is so dependent on the actual test result and the elapsed time is demonstrated by the scientific literature cited by the Texas Court of Criminal Appeals in Mata v. State, 46 S.W.3d 902, 910-13 (Tex.Crim.App.2001). The court summarized one of those articles as stating, “[I]n most DWT cases, the person is arrested shortly after his last drink. His stomach has not yet absorbed all the alcohol, and his BAC will continue to rise for some time after arrest, resulting in a tested BAC which is higher than what it was at the time of the driving.” Id. at 913. Another article is quoted as stating, “[T]he potential rate of error increased as time went on. Indeed, ‘this variability was particularly large’ when extrapolation back one hour or more was attempted.’” Id. at 912. Another article stated, “[T]he major possible source of error ... [is when] continuing absorption is ignored.” Id. at 912. A final article noted, “[I]t should be remembered that the process of alcohol absorption is highly variable. The limitations and pitfalls associated with retrograde extrapolations are often not appreciated by laymen and the courts.” Id. at 911.

In this case, Gigliobianco was stopped at 9:46 p.m. The tests were administered at 11:10 p.m. and 11:12 p.m. The test results were 0.090% and 0.092%. As the majority notes, the facts in this case are distinguishable from cases previously decided by this court. See, e.g., Trillo v. State, 165 S.W.3d 763, 769 (Tex.App.-San Antonio 2005, no pet.) (one hour; 0.133 and 0.130); Stewart v. State, 162 S.W.3d 269, 274 (Tex.App.San Antonio 2005, pet. stricken) (eighty minutes; 0.160 and 0.154); Kelly v. State, No. 04-04-00456-CR, 2005 WL 839505, at *2 (Tex.App.-San Antonio Apr. 13, 2005, no pet.) (three hours; 0.153 and 0.154) (not designated for publication); Martinez v. State, 155 S.W.3d 491, 494 (Tex.App.-San Antonio 2004, no pet.) (sixty-two minutes; 0.273 and 0.277); but see Adams v. State, 156 S.W.3d 152, 155-56 (Tex.App.-Beaumont 2005, no. pet.) (fifty-four minutes; 0.090 and 0.094). Given that almost one and one half hours elapsed between the time of driving and the time of the test, the test results of 0.090% and 0.092% do not compellingly support an inference that Gigliobianco had a 0.08% BAC at the time of driving. Although the majority concludes that the results were “nonetheless probative,” I believe the probative weight of the evidence is critical when an appellate court is reviewing the trial court’s decision to admit evidence under a Rule 408 balancing test.

Additional Factor

In Mechler, the Court of Criminal Appeals stated that “a proper Rule 408 analysis includes, but is not limited to,” the four factors analyzed above. 153 S.W.3d at 440 (emphasis added). Another factor that I believe must be considered in the Rule 403 balancing is the effect the introduction of the test results will have on the remainder of the case. In this case, the admission of the test results allowed the State to present the testimony of George McDougall. Absent the introduction of the test results, none of McDougall’s testimony would have been relevant because it all related to the intoxilyzer test machine and the “effect” of the test results. The only other witness presented by the State was the arresting officer.

George McDougall testified that he is responsible for maintaining the breath test instruments in Bexar County and is the supervisor of the certified breath test operators in Bexar County. McDougall stated that testing “over many decades with thousands of individuals” has established “that every person that has been tested has been impaired in their mental and physical faculties at 0.08.” McDougall explained the scientific principles and theories underlying the Intoxilyzer model number 5000 and the manner in which the Intoxilyzer instrument applies those theories. McDougall stated that the machine used to test Gigliobianco was certified, and McDougall described the maintenance performed on the machine. McDougall stated that maintenance checks performed on the machine the morning before Gigliobianco was tested and three days later revealed that the machine was operating correctly. Based on these checks, McDougall opined that the machine was operating correctly when Gigliobianco was tested. McDougall stated that the test report revealed that the test met the criteria of the regulations for an adequate breath test. McDougall testified regarding the preparation and use of reference samples and stated that the reference sample used diming Gigliobian-co’s test was within the tolerance of the predicted reference sample value. McDougall explained the steps the operator of an Intoxilyzer machine must follow before taking the breath test.

McDougall testified that Gigliobianco’s first sample was delivered at 11:10 p.m., and the other at 11:12 p.m. The test results were 0.090 and 0.092, respectively. McDougall stated that Gigliobianco’s results were greater than 0.080 and a person with an alcohol concentration of 0.080 would have lost the normal use of his mental and/or physical faculties. McDou-gall admitted that he would not be able to speak to what Gigliobianco’s breath test results would have been if the test was administered at the scene. McDougall admitted that a test result above the legal limit at the time of the test does not mean that the person’s alcohol concentration was above the legal limit at the time the person was driving. McDougall agreed that the person’s alcohol concentration could be lower at the time the person was driving than at the time the person was tested. McDougall agreed that the processes of absorption and elimination would potentially cause differences between alcohol concentrations at the time of driving and at the time of testing. McDougall agreed that these processes would be affected by the person, the consumption of food, the concentration of alcohol and the speed of consumption. McDougall stated that from the test results, he could not determine if Gigliobianeo was absorbing or eliminating alcohol at the time of the test. McDougall stated that he could not tell the jury what Gigliobianco’s alcohol concentration would have been at the time he was driving.

Although McDougall informed the jury that he could not “extrapolate” the test results back to the time Gigliobianeo was driving, the admission of the test results allowed McDougall to’ state his “expert” opinion that testing “over many decades with thousands of individuals” has established “that every person that has been tested has been impaired in their mental and physical faculties at 0.08.”

Balancing

With regard to the four defined factors that a trial court is to consider in a Rule 408 analysis, Judge Cochran’s concurring opinion in Mechler indicates that the factors should not be given equal weight by the trial court. In Mechler, Judge Cochran stated, “In balancing the probative value of an intoxilyzer test result against its potential for creating unfair prejudice or confusion of the issues, the two most significant items in that balance are: 1) the actual test result itself and how much it exceeded the legal limit of 0.08% BAC; and 2) the time interval between the defendant’s driving and the taking of the test.” 158 S.W.3d at 444 (Cochran, J., concurring). Later in her opinion, Judge Cochran emphasized, “The single most important factor in the context of admitting breath test results in the absence of extrapolation testimony is the inherent probative value of the test result.” Id. at 449.

' In this case, the test results were close to the legal limit and were obtained almost an hour and a half after Gigliobianeo was stopped. Accordingly, the test results coupled with the time interval call into question “the inherent probative value of the test result.” Id. Because this factor is entitled to added weight as the “single most significant factor” in the Rule 403 balancing and given the lack of the need for the evidence and the effect the admission of the test results had on the remainder of the case, I would conclude that the trial court abused its discretion in admitting the intoxilyzer test results.

Harm Analysis

Although I would conclude that the trial court erred in admitting the test results, the erroneous admission of evidence must be disregarded if the appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the jury or had but a slight effect. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003). The test results were the only evidence that supported a finding of guilt under the per se definition of intoxication. Absent those results, the per se definition of intoxication could not have been included in the jury charge. See Bagheri v. State, 119 S.W.3d at 761-64 (holding erroneous admission of retrograde extrapolation testimony in support of per se definition of intoxicátion 'not harmless despite submission of alternative definition of intoxication). Furthermore, because the test results were admitted, McDougall was permitted to testify regarding his “expert opinion” that testing “over many decades •with thousands of individuals” has established “that every person that has been tested has been impaired in their mental and physical faculties at 0.08.” See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001) (listing whether testimony was elicited from an expert as an important factor in the harm analysis). Having considered the record as a whole, I would not have a fair assurance that the error did not influence the jury or had but a slight effect.

Because I believe the trial court committed reversible error in overruling Giglio-bianco’s Rule 403 objection to the admissibility of the breath test results, I would reverse the trial court’s judgment and remand the cause to the trial court for a new trial. Because the majority holds to the contrary, I respectfully dissent.

      . See, e.g., Trillo v. State, 165 S.W.3d at 763 (Tex.App.-San Antonio 2005, no pet.) (one hour; 0.133 and 0.130); Stewart v. State, 162 S.W.3d 269, 274 (Tex.App.-San Antonio 2005, pet. stricken)(eighty minutes; 0.160 and 0.154); Kelly v. State, No. 04-04-00456-CR, 2005 WL 839505, at *2 (Tex.App.-San Antonio Apr. 13, 2005, no pet.) (not designated for publication) (three hours; 0.153 and 0.154); Martinez v. State, 155 S.W.3d 491, 494 (Tex.App.-San Antonio 2004, no pet.) (sixty-two minutes; 0.273 and 0.277); but see Adams v. State, 156 S.W.3d 152, 155-56 (Tex.App.Beaumont 2005, no pet.) (fifty-four minutes; 0.090 and 0.094).

      . Defendant also argues the trial court erred by admitting the breath test results without also admitting expert testimony linking those results to his alcohol concentration at the time he drove, because the court encouraged the jury to undertake its own extrapolation. The Texas Court of Criminal Appeals rejected this argument in Stewart. See Stewart, 129 S.W.3d at 97 (holding breath test results were properly admitted evidence because “the jury did not need to establish Stewart’s exact blood alcohol concentration at the time she drove; the jury only needed to believe beyond a reasonable doubt that either her blood alcohol concentration was .10 or more, or that she failed to have the normal use of her mental or physical faculties by reason of introduction of alcohol into her body, at the time she drove”).

      . Rule 702 of the Texas Rules of Evidence provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion of otherwise.
      Tex.R. Evid. 702.

      . See Act of Jun. 19, 1993, 73d Leg., R.S., ch. 900 § 1.01, 1993 Tex. Gen. Laws 3586, 3696, (amended 1999) ((current version at Tex. Pen. Code Ann. § 49.01) (Vernon 2003)).

      . At trial, defendant proposed the following jury instruction:
      All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proven beyond a reasonable doubt. The fact that a person is arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence.

      . State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App.2005).

      . See Mata v. State, 46 S.W.3d at 912 (quoting scientific literature noting that potential rate of error in extrapolation is particularly large when extrapolation back one hour or more is attempted).


author: DON H. REAVIS, Justice.

text:
    Rufus Sito NANEZ, III, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0263-CR.
    Court of Appeals of Texas, Amarillo.
    Oct. 12, 2005.

      Gene Thompson, Attorney at Law, Pam-pa, for Appellant.
    Lynn Switzer, Dist. Attorney, Pampa, for State.
    Before REAVIS and CAMPBELL and HANCOCK, JJ.
   OPINION

DON H. REAVIS, Justice.

Following a plea of not guilty, appellant Rufus Sito Nanez, III was convicted by a jury of unlawful possession of a firearm and sentenced to ten years confinement and a $10,000 fine. Presenting three issues, appellant contends the trial court erred by (1) failing to grant a mistrial when the State asked a witness to repeat hearsay evidence to the jury, (2) overruling his objection to testimony obtained from an interview with him, and (3) admitting testimony during the punishment phase concerning extraneous offenses. We affirm.

Appellant was indicted for unlawfully possessing a firearm while he was under community supervision for a prior felony conviction. As the result of a routine drug arrest in Wheeler County, Gray County Sheriffs Deputy Kelly Rushing obtained custody of two handguns that had been reported stolen from a Gray County residence several months earlier. In conducting his investigation, Deputy Rushing interviewed the alleged owner of the guns, Scott Neighbors. Neighbors identified appellant as the person who gave him the handguns. Appellant then voluntarily agreed to meet with Deputy Rushing for questioning.

During the interview and at trial, appellant claimed he was approached at his place of employment by two unidentified men looking for a buyer for the two guns. Appellant told the men he was not interested in purchasing the guns but thought he knew someone who might be. He then offered to sell the guns to fellow employee Scott Neighbors for $50. In doing so, appellant maintains he was never in physical possession of the firearms. However, after hearing the evidence, a jury found appellant guilty of possessing the firearms. At the punishment phase of trial, the State introduced evidence of appellant’s involvement in two prior burglaries.

By his first issue, appellant contends the trial court should have granted a mistrial when the State asked Deputy Rushing to repeat hearsay evidence to the jury. We disagree. The State questioned Deputy Rushing about his investigation into the burglary of the handguns and his interview with Scott Neighbors. The State then asked the following question:

Q: Okay. What did you do after you talked to Scott Neighbors?
A: I — I contacted the next one, the one he said he got the guns from.

Appellant immediately objected to hearsay and asked that the jury be instructed to disregard the testimony. The court sustained the objection and instructed the jury as requested. Appellant then moved for a mistrial claiming such an instruction would not remove the testimony from the jury’s mind. The court denied the request for a mistrial. The State continued questioning the witness as follows:

Q: Deputy Rushing, after you finished visiting with Scott Neighbors, who did you visit with next?
A: Rufus Nanez.

Appellant contends the State’s rephrasing of the question was grounds for a mistrial because the obvious implication, based upon the previous hearsay response, was to name him as the one who supplied the guns. However, after the State posed the question, appellant failed to object or otherwise direct the court’s attention to the alleged error. In order for us consider his complaint on appeal, the record must show appellant preserved his complaint by a timely request, objection, or motion and obtained a ruling from the trial court. See Tex.R.App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex.Cr.App.2002). Since he did not object or request a mistrial, appellant’s first issue presents nothing for review and is overruled.

By his second issue, appellant claims the trial court erred in overruling his objection to Deputy Rushing’s testimony about his interview with him. We disagree. By his brief, appellant cites no authority to support his contention that the trial court erred in considering this testimony. Failure to adequately brief an argument and provide authority to support an issue waives the complaint. See Hughes v. State, 962 S.W.2d 689, 692 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); Hicks v. State, 15 S.W.3d 626, 630 (Tex.App-Houston [14th Dist.] 2000, pet. ref'd). Appellant’s second issue is overruled.

By his third issue, appellant contends the trial court erred at the punishment phase of trial by admitting testimony concerning his involvement in two prior burglaries because the State could not and did not prove the offenses with evidence beyond a reasonable doubt. We disagree.

The decision of a trial court regarding the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. Saenz v. State, 843 S.W.2d 24, 26 (Tex.Cr.App.1992); Cate v. State, 124 S.W.3d 922, 930 (Tex.App.Amarillo 2004, no pet.). Regarding extraneous offense evidence at the punishment phase of trial, article 37.07 of the Code of Criminal Procedure provides as follows:

evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including ... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Pamph. Supp.2004-05).

This provision was considered by the Court in Mitchell v. State, 931 S.W.2d 950 (Tex.Cr.App.1996). The Court concluded the trial court is the sole authority on the threshold issue of admissibility of relevant evidence, while the jury determines whether or not the burden of proof for the extraneous offenses presented has been satisfied. Id. at 953. Stated differently, the trial court is not charged with determining whether the State has proven the extraneous offenses beyond a reasonable doubt. See id. at 954. The jury as “the exclusive judge of the facts” is to determine whether the burden of proof has been met before considering evidence concerning extraneous offenses and should be so instructed when requested. Id.; Ex parte Varelas, 45 S.W.3d 627, 631 (Tex.Cr.App.2001).

Here, the trial court made a determination outside the presence of the jury that the extraneous offense evidence was relevant, and the jury was properly instructed that it could only consider the testimony if it found beyond a reasonable doubt that appellant committed such acts. Considering the applicable standard of review, we find the trial court did not abuse its discretion in admitting the testimony. Issue three is overruled.

Accordingly, the judgment of the trial court is affirmed.