text:
    Cynthia LORENTZ, Administratrix of the Estate of Carolyn M. Polk, Deceased, Petitioner, v. James F. DUNN, M.D. and United Clinics of North Texas, P.L.L.C., Respondents.
    No. 03-0790.
    Supreme Court of Texas.
    Argued Nov. 10, 2004.
    Decided May 13, 2005.
    Rehearing Denied Oct. 14, 2005.
    Christopher L. Bagby, W. McFarland Bagby, Bagby Law Firm, and David R. Sweat, E.L. Atkins, Law Offices of E.L. Atkins & Associates, and Deborah K. Hartley, Ross & Hartley, P.C., Arlington, TX, for Petitioners.
    Tonya Johnson Myck, William H. Cham-blee, David Michael Walsh IV, Jeffery Mark Kershaw, Chamblee & Ryan P.C., Dallas, TX, for Respondents.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

Cynthia Lorentz filed a survival action on behalf of her deceased sister, Caroline Polk, against respondents, James F. Dunn, M.D. and United Clinics of North Texas, P.L.L.C. (collectively, “Dunn”). In her original petition, Lorentz asserted she was administrator of her sister’s estate. In actuality, her petition to be appointed the estate’s administrator was still pending in county court, and that court did not appoint her administrator until after the statute of limitations on the survival action expired. On Dunn’s motion, the trial court dismissed Lorentz’s suit for want of jurisdiction, and the court of appeals affirmed. 112 S.W.Bd 176,179.

For the reasons set forth in Austin Nursing Center v. Lovato, 171 S.W.3d 845, 2005 WL 1124764 (Tex.2005), decided today, we conclude the standing doctrine’s requirements were satisfied and that the trial court had jurisdiction to hear Lorentz’s claims. Further, we hold that any defect in Lorentz’s capacity was cured when she was appointed the estate’s administrator, and the trial court erred in dismissing the case. Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

Carolyn Polk died in the hospital on May 5, 1997, allegedly while under the care of James F. Dunn, M.D. and United Clinics of North Texas, P.L.L.C. On June 17, 1999, Cynthia Lorentz, Polk’s sister, filed an action in county court, seeking to be appointed administrator of Polk’s estate. On July 14, 1999, before the county court appointed her administrator, Lorentz filed this survival action on the estate’s behalf. See Tex. Civ. Prac. & Rem.Code § 71.021. Lorentz alleged that she was “Administratrix of the Estate of Carolyn M. Polk” and that Dunn’s medical negligence caused Polk’s death. On July 26, 1999, the county court appointed Lorentz administrator of Polk’s estate. The parties agree that Lorentz filed her original petition before the statute of limitations expired, but that she was not appointed administrator until after limitations ran. Lorentz amended her petition, but the allegations regarding her representative capacity remained the same; she continued to assert the survival claim as “Adminis-tratrix of the Estate of Carolyn M. Polk.”

Shortly before trial was to begin, Dunn moved to dismiss on the ground that Lorentz had not been appointed administrator until after the statute of limitations expired. Dunn asserted that Lorentz lacked standing to bring suit and as a result, the trial court lacked subject matter jurisdiction to hear her claims. Dunn also argued that Lorentz’s counsel violated Texas Rule of Civil Procedure 13 by signing a petition reciting Lorentz’s representative status when he knew that Lorentz had not been appointed administrator. Dunn urged dismissal as an appropriate sanction.

Lorentz asserted that the issue was one of capacity, not standing, and that Dunn waived the point by failing to raise it in a plea in abatement or verified denial. See Tex.R. Civ. P. 93(l)-(2). Lorentz also contended that her status as administrator should relate back to the date of her original petition.

The trial court dismissed the ease for want of subject matter jurisdiction, finding that “Lorentz did not have standing to bring this suit until after the statute of limitations had expired on July 19, 1999.” The court of appeals affirmed, holding that “only a personal representative, administrator, or, in some cases, an heir,” has standing to bring a survival claim on behalf of an estate, and because Lorentz did not qualify as the estate’s administrator, the trial court correctly decided that it lacked subject matter jurisdiction to hear Lorentz’s claims. 112 S.W.3d at 179; see Tex. Civ. Prac. & Rem.Code § 71.021. Further, the court held that Lorentz’s post-limitations “amended pleading filed after she obtained standing did not relate back to her original petition to confer jurisdiction on the trial court.” Id. We granted Lorentz’s petition for review. 47 Tex. Sup.Ct. J. 658 (June 18, 2004).

Lorentz argues that the court of appeals erred in dismissing the suit for lack of jurisdiction because the defect, if any, at the time she filed her original petition was related to her capacity to bring suit and not the estate’s standing. She further argues that if a defect in capacity existed at the time she filed, it was later cured when she was appointed administrator of the estate. Based on our holding today in Lovato, we agree.

A plaintiff must have both standing and capacity in order to bring a lawsuit. Lovato, 171 S.W.3d at 848; Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). In Lovato, we held that “in a survival action, the decedent’s estate has a justiciable interest in the controversy sufficient to confer standing.” Lovato, 171 S.W.3d at 850. Because this is such a case, the estate had standing to sue. We also held that, when a person is appointed administrator of the estate, she acquires the capacity to assert a survival claim on the estate’s behalf. Id.; see also Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex.1971) (“[T]he personal representative ... is ordinarily the only person entitled to sue for the recovery of property belonging to the estate”). Lorentz was appointed administrator of the estate on July 26,1999, giving her the capacity to bring a survival claim on behalf of Polk’s estate. For the reasons set forth in Lovato, we conclude that Lorentz’s late-acquired capacity cured her pre-limitations lack thereof, and the trial court .therefore erred in dismissing the case.

Finally, Dunn argued in the trial court that Lorentz’s false statement of capacity in her pleadings merited sanctions — specifically, dismissal. As in Lovato, we note that the trial court has the means to address misrepresentations in a party’s pleadings, and we leave this matter to that court’s discretion. See, e.g., Tex. Civ. Prac. & Rem.Code ch. 10; Tex.R. Civ. P. 13.

For the foregoing reasons, we reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings. Tex.R.App. P. 60.2(d).

Justice JOHNSON did not participate in the decision.

      . The survival action in this case is a health care liability claim governed by the two-year statute of limitations in the Medical Liability and Insurance Improvement Act (the "MLI-IA”). See Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-12.01, 1977 Tex. Gen. Laws 2039-2053 (former Tex.Rev.Civ. Stat. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. While this case was pending, the Legislature enacted House Bill 4 (''H.B.4”) which repealed article 4590i and governs all health care liability claims filed on or after September 1, 2003. Act of June 2, 2003, 78th Leg., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. & Rem.Code §§ 74.001-.507).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Evelyn TITTIZER, Individually and as Independent Executrix of the Estate of Louis Tittizer, Petitioner, v. UNION GAS CORPORATION, Respondent.
    No. 04-0100.
    Supreme Court of Texas.
    Aug. 26, 2005.

      Paul S. Francis, Kenneth Sup Soh, Baker & Hostetler, LLP, Joe G. Roady, Hirsch & Westheimer, Houston, for respondent.
    Emmett Cole Jr., William L. Seiba, III, Cole, Cole <& Easley, P.C., Victoria, for petitioner.
   PER CURIAM.

The parties dispute the amount of royalties that an oil and gas lessee owes landowners under the pooling provisions of multiple oil and gas leases. The landowner argues that her lease’s pooling provisions entitle her to royalties on the pooled unit from the date of first production. The lessee argues that royalties are due from the later date of recordation of the Designation of Pooled Unit. We agree with the lessee and affirm in part the judgment of the court of appeals and remand the case to the court of appeals to consider the reasonableness of attorneys’ fees.

In 1999, Union Gas Corporation entered into multiple oil and gas leases with Jimmie Gisler, Jenell Gisler, Ralph Gisler, and Doris Gisler (the Gislers) and various adjoining landowners. The leases contained pooling clauses, allowing lessee Union Gas to pool acreage owned by the various lessors for production of natural gas. Under the leases, each lessor in the “pooled unit” was entitled to receive a pro rata share of royalty fees from production anywhere in the unit. Completed in March 2000, the Watts-Gisler No. 1 Well was part of a pooled unit. The well began production on March 27, 2000. However, Union Gas did not file a Designation of Pooled Unit (the Designation) until August 7, 2000. The county recorded the Designation on the same day. The Designation included language that purported to make the pooled unit effective retroactively, from the date of first production on March 27, 2000.

The Gislers filed a breach of contract claim against Union Gas, seeking to defeat the retroactive effect of the Designation. They sought 100% of their royalties from the March 27, 2000 production date until the August 7, 2000 recordation of the Designation. The suit also alleged bad-faith pooling, damages for drainage, breach of implied covenants, fraud, negligence, and conversion. Union Gas joined, as third-party defendants, the adjoining landowners (the non-drillsite lessors), alleging that these parties’ royalty rights under the pooling clauses of the leases could be affected by the Gislers’ claim to 100% of the royalties from March 27, 2000 to August 7, 2000. Union Gas sought a declaration to establish the rights of the parties concerning the royalty payments and the effective date of the pooled unit as the date of first production for all royalty owners.

Evelyn Tittizer was one of the non-drill-site lessors joined by Union Gas’s third-party action. Tittizer counterclaimed against Union Gas seeking a declaration that the effective date of the pooled unit under her lease was the date of first production, and seeking to recover her pro rata share of royalties accruing from the date of first production to the date of judgment.

Union Gas later amended its third-party action to add a claim for interpleader, alleging that competing claims for royalties placed them “in the position of potential double liability.” Union Gas tendered over $1.3 million into the registry of the court, representing this amount as the royalties accruing from March 27, 2000 (the date of first production) to August 7, 2000 (the recordation date of the Designation).

The Gislers filed a motion for partial summary judgment seeking 100% of their royalties from March 27, 2000 to August 7, 2000. All of the non-drillsite lessors, in-eluding Tittizer, also filed motions for partial summary judgment, seeking declarations that the pooling clauses of the leases were effective from the date of first production and that all of the owners of the pooled unit were entitled to pro rata shares of the $1.3 million in royalties from production during the March 27, 2000 to August 7, 2000 period.

The trial court granted the Gislers’ and all non-drillsite lessors’ motions for partial summary judgment against Union Gas. The trial court also granted motions to sever the Gislers’ breach of contract claims and the non-drillsite lessors’ counterclaims against Union Gas, creating eleven different cases. The trial court entered final judgment for the Gislers on their severed contract claims for over $1.3 million in royalties, plus attorneys’ fees. The trial court also entered judgment for each of the non-drillsite lessors. Specifically, the trial court awarded Tittizer her pro rata share of royalties from March 27, 2000, the date of first production, through April 30, 2001, the date of judgment in her favor, plus attorneys’ fees. By doing so, the trial court implicitly rejected Union Gas’s inter-pleader claim.

On appeal, Union Gas complained that it had been wrongfully ordered to pay double royalties for production between March 27, 2000 and August 7, 2000. The court of appeals reversed in part the trial court’s judgments in favor of the non-drill-site lessors and ordered that the Gislers alone were entitled to royalties from production between March 27, 2000 and August 7, 2000. 171 S.W.3d 209,-, 2003 WL 22479980. The court of appeals affirmed the trial court’s judgment in all other respects. Id. at-. The court of appeals also held that Union Gas failed to attack the award of Tittizer’s attorneys’ fees and thus did not consider the reasonableness of the $150,000 award. Tittizer and Union Gas petitioned this Court for review. We review the trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

An oil and gas lease is a contract, and its terms are interpreted as such. See Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002); Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778 (1961). In construing an unambiguous oil and gas lease, such as the one at issue here, we seek to enforce the intention of the parties as it is expressed in the lease. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996); McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957). We enforce an unambiguous document as written. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981).

A lessee has no power to pool without the lessor’s express authorization, usually contained in the lease’s pooling clause. Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex.1999); Jones v. Killingsworth, 403 S.W.2d 325, 327-28 (Tex.1965) (“The lessors’ land may be pooled only to the extent stipulated in the lease.”). For pooling to be valid, it must be done in accordance with the method and purposes specified in the lease. Tichacek, 997 S.W.2d at 170.

Union Gas’s lease with Tittizer reads:

Lessee shall exercise said option as to each desired unit by executing an instrument identifying such unit and filing it for record in the public office in which this lease is recorded. Each of said options may be exercised by lessee at any time and from time to time while this lease is in force, and whether before or after production has been established either on said land, or on the portion of said land included in the unit, or on other land unitized therewith.

Tittizer argues that the language in her lease allows Union Gas to make the effective date of the pooled unit retroactive by language in the Designation. On the contrary, under the terms of the lease, pooling can only be effectuated upon recordation of an instrument identifying the pooled unit. While the lease allows Union Gas to pool by recording at any time, it does not allow Union Gas to pool on a date other than that of recordation of the Designation. Therefore, the attempt by Union Gas to effect pooling on a date prior to the date of recordation, by assigning a different effective date in the Designation, is contrary to the unambiguous terms of the lease. Our courts of appeals have also reached the same conclusion on similar lease language. See, e.g., Sauder v. Frye, 613 S.W.2d 63, 64 (Tex.Civ.App.Fort Worth 1981, no writ) (holding, in interpreting a pooling clause providing that the lessee “shall execute in writing and record” an instrument identifying the units, that the intent of the parties was for uniti-zation to be effective only upon recording of the designation); Yelderman v. McCarthy, 474 S.W.2d 781, 782, 784 (Tex.Civ.App., Houston [1st Dist.] 1971, writ refd n.r.e.) (holding that ratification of a lease clause providing that “upon such recordation the unit shall be effective as to all parties hereto” made pooling conditioned upon recordation); cf. Tiller v. Fields, 301 S.W.2d 185, 191 (Tex.Civ.App.Texarkana 1957, no writ) (holding that effective date of pooling was the date of execution of the designation where the lease did not require that the unit designation be recorded); see also Howard R. Williams & Charles J. Meyers, Oil and Gas Law §§ 669.11, 921.16 (2004); 1 Ernest E. Smith & Jacqueline Lang Weaver, Texas Law of Oil and Gas § 4.8[B][2] (2d ed.2005).

We hold that this lease does not authorize the lessee to execute a pooling designation with a retroactive effect. The lease provides that unitization can be effective only upon recordation. We affirm the court of appeals’ conclusion that the effective date of the pooled unit was the date of recordation of the Designation, and that Tittizer is only entitled to her pro rata share of the royalties earned after that date.

Tittizer next argues that Union Gas is estopped from arguing that the effective date of the pooled unit is the date of recordation because Union Gas filed a third-party claim seeking a declaration that the pooled unit was effective as of the date of first production, on March 27, 2000. As a general rule, the doctrine of estoppel precludes a litigant from requesting a ruling from a court and then complaining that the court committed error in giving it to him. Northeast Tex. Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942); Ramirez v. State, 973 S.W.2d 388, 392 (Tex.App.El Paso 1998, no pet.); Austin Transp. Study Policy Advisory Comm. v. Sierra Club, 843 S.W.2d 683, 689-90 (Tex.App.Austin 1992, writ denied). The rule is grounded in justice and dictated by common sense. Hodges, 158 S.W.2d at 488. Union Gas responds that it is not raising a point of error inconsistent with its position at the trial court. We agree.

Union Gas filed its third-party claim to avoid potential double liability by obtaining a judicial determination of its obligations under the leases, and also by joining all the stakeholders as parties to ensure that it obtained a binding determination of their contractual rights and obligations in the oil and gas properties. While Union Gas did seek a declaration that the effective date of the pooled unit for royalty purposes was the date of first production, it also stated that “the possibility of double liability makes it essential that Union Gas obtain a declaration of the rights of the parties.” Union Gas’s argument that it had the power to make the unit retroactive was contingent on the retroactive application being uniformly applied to all parties, such that it owed no more than the amount it sought to interplead into the court’s registry.

As we explained in Hodges, a party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as “the invited error” doctrine. 158 S.W.2d at 488; see, e.g., Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex.App., Dallas 2004, pet. denied); Neasbitt v. Warren, 22 S.W.3d 107, 112 (Tex.App.Fort Worth 2000, no pet.); Ramirez, 973 S.W.2d at 392. Union Gas sought a uniform determination from the trial court, applicable to all royalty owners, that the effective date of pooling was the date of first production. Granting Tittizer’s motion for summary judgment, the trial court declared that the effective date of the pooled unit as to the Tittizer lease was the date of first production. However, the court did not apply the same effective date to the Gisler lease. Instead, contrary to Union Gas’s position, the court entered judgment in favor of the Gislers in an amount based on an effective date of pooling from the date of recordation of the Designation. By establishing different effective dates for the Gislers and Tittizer, the trial court did not grant Union Gas’s requested uniform relief. Therefore, the invited error doctrine is inapplicable to this case because Union Gas did not request that the trial court rule in the manner in which it did and thus did not “invite” the error.

In addition, to be estopped from asserting that recordation is the effective date of pooling, Union Gas must have unequivocally taken a position in the trial court that is clearly adverse to its position on appeal. See Am. Sav. & Loan Ass’n v. Musick, 531 S.W.2d 581, 589 (Tex.1975) (“One of the requirements for application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal.”). Union Gas’s position at the trial court was neither unequivocal nor clearly adverse to its position on appeal. Union Gas stated in its third-party claim that a “bona fide dispute exists” concerning the entitlement of Tittizer and the non-drillsite lessors “under their respective leases and under the Unit Designation.” This statement is an acknowledgment that both positions concerning the effective date of pooling may have validity and are asserted in good faith. Union Gas’s position that the effective date of pooling was the date of first production was not unequivocal. For similar reasons, Union Gas’s third-party claim is not clearly adverse to its position on appeal. At the trial court, Union Gas sought to obtain a uniform determination applicable to all royalty owners to avoid double liability, and its position on appeal is the same.

Finally, Union Gas complains that the court of appeals erred in holding that Union Gas did not appeal the award of $150,000 in attorneys’ fees to Tittizer. We agree. In its brief to the court of appeals, Union Gas included the following point of error: “The trial court erred in granting final judgments which awarded attorneys fees to the Gislers [Union Gas Corp. v. Gisler, 129 S.W.3d 145 (Tex.App.—Corpus Chrisit)] because the amounts awarded were excessive and were not reasonable, necessary, equitable, or just.” (emphasis added). The court of appeals held simply that “Union did not appeal the award of attorneys fees in this case.” 171 S.W.3d at 211 [(Tex.App.—Corpus Christi—2003)].

Read in isolation, Union Gas’s point of error in the court of appeals complains that the trial court awarded excessive fees to the Gislers and includes no challenges to the trial court’s attorneys’ fees award to Tittizer. Under this view Union Gas failed to preserve error as to Tittizer’s attorneys’ fees award. However, points of error should be liberally construed to fairly and equitably adjudicate the rights of litigants. Tex.R.App. P. 38.9; Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990). Furthermore, an appellate court should consider the parties’ arguments supporting each point of error and not merely the wording of the points. Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). After severing all the non-drillsite lessors’ counterclaims, the trial court awarded attorneys’ fees to both Tittizer and the Gislers. The body of the argument supporting the point of error twice refers to challenges to the attorneys’ fees awarded to Tittizer. The text of Union Gas’s argument concludes that “the attorneys fee award provided to the Tittizer appellees is thus unreasonable as a matter of law.”

The context of the litigation, as well as the text of the argument in its brief to the court of appeals, indicates that the intent of Union Gas was to appeal the award of attorneys’ fees to Tittizer, even though its point of error erroneously mentioned “the Gislers.” Adhering to tenets of preservation is important; however, appellate courts should avoid being overly technical in their application. See In re B.L.D. & B.R.D., 113 S.W.3d 340, 350 (Tex.2003) (describing the underpinnings of preservation rules as fairness to the parties and judicial economy and accuracy); Motor Vehicle Bd. of the Tex. Dep’t of Transp. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 111 (Tex.1999) (stating the Court’s preference to decide cases on substance rather than procedural technicalities). The court of appeals erred in holding that this point of error was not raised. We remand this issue to the court of appeals. Tex.R.App. P. 61.4.

We hold that the court of appeals is correct in concluding that Tittizer is not entitled to royalties for production between March 27, 2000 and August 7, 2000 because the lease unambiguously provides for pooling to commence on the date of the Designation’s recordation. We further hold that the court of appeals erred in concluding that Union Gas failed to appeal the trial court’s award of attorneys’ fees. We affirm in part and reverse in part the court of appeals’ judgment and remand the case to the court of appeals to consider Union Gas’s challenge to the reasonableness of the attorneys’ fees awarded to Tittizer.

Justice Willett did not participate in the decision.


author: Justice HECHT

text:
    NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Petitioners, v. Joscelin YEO, Respondent.
    No. 03-0753.
    Supreme Court of Texas.
    Argued Jan. 4, 2005.
    Decided Aug. 26, 2005.

      Susan Bradshaw, University of Texas at Austin, Legal Affairs, John F. Morehead, Asst Atty. Gen., Robert B. O’Keefe, Greg Abbott, Atty. Gen., Barry Ross McBee, Rafael Edward Cruz, Jeffrey S. Boyd, Thompson & Knight, Robert B. O’Keefe, Don Wayne Cruse Jr., Asst. Solicitor Gen., Edward D. Burbach, Austin, Kevin Scott Mullen, Thompson Coe Cousins & Irons, LLP, Dallas, Catherine Christine Cobb Worth, Austin, for University of Texas.
    Jose E. De La Fuente, Mark Ryan Tra-chtenberg and Charles G. Orr, Haynes & Boone, LLP, Houston, W. Wade Porter, Allensworth & Porter, LLP, Austin, Linda J. Salfrank and Jonathan F. Duncan, Spencer Fane Britt & Browns, LLP, Kansas City, MO, for National Collegiate Athletic.
    Diane M. Henson, Henson Law Firm, Karl Bayer, Law Office of Karl Bayer, Robert Green Hargrove, Austin, for respondent.
    Warren W. Harris, Bracewell & Giuliani, LLP, Houston, Amicus Curiae for American Council on Education.
   Justice HECHT

delivered the opinion of the Court,

in which Chief Justice JEFFERSON, Justice O’NEILL, Justice WAINWRIGHT, Justice BRISTER, Justice MEDINA, Justice GREEN and Justice JOHNSON joined.

Construing the Texas Constitution’s guarantee of due course of law, we held twenty years ago in Spring Branch I.S.D. v. Stamos, like “the overwhelming majority of jurisdictions” construing other constitutional guarantees of due process, that “students do not possess a constitutionally protected interest in their participation in extracurricular activities.” We have endorsed the rule in Stamos twice since. Respondent nevertheless contends that because of her unique situation as “the most decorated athlete in the history of the Republic of Singapore”, to disqualify her from participating in an intercollegiate swimming competition would deprive her of protected property and liberty interests in her reputation and existing and future financial opportunities in violation of the Texas Constitution. The lower courts agreed, distinguishing this case from Sta-mos. , We conclude that the rule in Sta-mos applies and therefore reverse the judgment of the court of appeals and render judgment that respondent take nothing.

When Coach Michael Walker recruited Joscelin Yeo, a high school student in the Republic of Singapore, to enroll at the University of California at Berkeley, she had already achieved fame in her country as a swimmer. At Berkeley, she won numerous All-American awards and was a member of a world-record-setting relay team in 1999.

Before the 2000-2001 school year, Walker left Berkeley for the University of Texas at Austin (“UT-Austin”). He was helping coach the Singapore Olympic team, of which Yeo was a member, and she went with him to UT-Austin. Berkeley and UT-Austin are both members of the National Collegiate Athletic Association (“NCAA”), which prescribes rules for determining the eligibility of student athletes to engage in competition. A member that violates these rules is subject to sanctions. NCAA rules generally prohibit a student who transfers from one four-year member institution to another from participating in intercollegiate athletic competitions for one full academic year, but this restriction may be waived under certain circumstances if the former institution does not object. Berkeley refused to waive the restriction, and thus Yeo was ineligible to compete at UT-Austin for an academic year.

As permitted by NCAA rules, Yeo did not enroll in classes for the fall semester of 2000 in order to compete in the Olympics. In compliance with the one-year restriction, she did not participate in intercollegiate events during that semester or the spring semester, when she was enrolled in classes. UT-Austin mistakenly believed that Yeo’s first semester had counted toward satisfying the restriction and that she was free to engage in competition beginning the fall semester of 2001. After Yeo competed in four events, Berkeley complained to the NCAA. UT-Austin confessed its error and agreed that Yeo would sit out the remainder of the semester, but the NCAA required that she not participate in the first four events the following spring, to match the four events in which she had been disqualified. Yeo did not know of UT-Austin’s discussions with the NCAA and simply did as UT-Austin told her.

UT-Austin then added three swimming events at the beginning of its spring semester schedule. After Yeo had sat out those events and a fourth one, UT-Austin allowed her to rejoin the swim team, but Berkeley again complained, arguing that the added events could not be used to satisfy the one-year restriction. NCAA staff agreed and on March 6 issued a decision that Yeo not participate in the next three regularly scheduled events, including the 2002 NCAA women’s swimming and diving championship on March 22. UT-Austin immediately appealed the staff decision to the NCAA Studenb-Ath-lete Reinstatement Committee (“the SARC”), and a telephonic hearing was scheduled for the next day. For the first time, UT-Austin told Yeo of the problem and advised her simply to plea for sympathy. She did, but at the conclusion of the hearing, the SARC upheld the staff decision.

At UT-Austin’s suggestion, Yeo then obtained legal counsel, who persuaded Berkeley on March 15 to waive Yeo’s one-year restriction, something it had refused to do before. Counsel moved the SARC to reconsider, especially in light of this development, but it refused.

On March 20, Yeo sued UT-Austin and its vice president for institutional relations and legal affairs, Patricia Ohlendorf, to enjoin them from disqualifying her from competing in the championship meet two days later and for a declaration that UT-Austin had denied her procedural due process as guaranteed by the Texas Constitution. That same day, the trial court issued a temporary restraining order granting Yeo the injunctive relief requested. On March 21, the NCAA intervened in the action, but Yeo moved to strike the intervention, and after a hearing later that day, the trial court granted Yeo’s motion. The next morning, the NCAA sought mandamus relief from the court of appeals, and UT-Austin appealed from the temporary restraining order. That afternoon, the court of appeals denied the petition for mandamus and dismissed the interlocutory appeal for want of jurisdiction. Yeo competed in the championship meet.

In November 2002, after a trial to the bench, the trial court rendered judgment for Yeo, declaring that UT-Austin had denied Yeo procedural due process guaranteed by the Texas Constitution, thereby depriving her of protected liberty and property interests. The court permanently enjoined UT-Austin from declaring Yeo ineligible in the future without affording her due process and from punishing her for participating in past competitions, including the 2002 women’s championship. The trial court also awarded Yeo $164,755.50 in attorney fees through an appeal to this Court.

The NCAA appealed from the order striking its intervention, and UT-Austin appealed from the judgment. The court of appeals affirmed. We granted the NCAA’s and UT-Austin’s petitions for review.

Since the championship meet in March 2002, Yeo has, of course, moved on. When briefs were filed in this case, we were told that Yeo had graduated from UT-Austin, received a Rhodes Scholarship, and ended her college swimming career. But none of the parties argues that the case has become moot, because the injunction prevents the NCAA from imposing retroactive sanctions under its “Restitution Rule”. We agree that the case is not moot.

We first consider whether Yeo has an interest protected by due course of law under article I, section 19 of the Texas Constitution. In so doing, we look as usual to cases construing the federal constitutional guarantee of due process as persuasive authority. The parties have not identified any difference between the state and federal guarantees material to the issues in this case.

Yeo does not challenge our holding in Stamos that a student has no interest in participating in extracurricular activities that is protected by the Texas Constitution’s guarantee of due course of law. Nor does she dispute that under NCAA rules, she was ineligible to participate in the 2002 NCAA women’s swimming and diving championship. Yeo argues that she was entitled to notice and a meaningful hearing before NCAA rules were applied to her because of her unique reputation and earning potential. Had she been disqualified from competing in the championship meet, she contends, people would have suspected that it was for her own misconduct and not for UT-Austin’s mistakes in attempting to comply with NCAA rules. Yeo acknowledges that the United States Supreme Court has held that reputation alone is not a protected liberty or property interest. But it is the degree of her interests, Yeo contends, and not merely their character, that bring them within constitutional protection. A student-athlete with a lesser reputation or less certain of her earning potential, she concedes, would not have the same rights. The court of appeals agreed:

In connection with the permanent injunction, the trial court made several material findings of fact that are essentially unchallenged: (1) Yeo had already established a world-class reputation and her “good name, outstanding reputation, high standing in her community, her unblemished integrity and honor are particularly important in the Republic of Singapore and in light of her cultural background”; (2) if NCAA rules did not prohibit athletes from accepting professional compensation while competing in NCAA sanctioned events, Yeo “would be immediately eligible to capitalize on her public persona by entering into lucrative endorsement and marketing opportunities as well as being eligible for prize winnings due to her performance as a member of Singapore’s national team”; and (3) “UT-Austin represented to [Yeo] at the time she transferred from [Cal-Berkeley] to become a student-athlete at UT-Austin that UT-Austin would not jeopardize or compromise [Yeo’s] eligibility to compete on behalf of UT-Austin in NCAA athletic competition.”
These findings of fact support Yeo’s theory that her athletic reputation, which was established even before she began attending Cal-Berkeley and competing under NCAA regulations, constitutes a protected interest for purposes of due course of law. Yeo had competed in two Olympic games before attending college and had been named sportswoman of the year and Olympic flag-bearer for her native country, Singapore. At both the temporary restraining order and permanent injunction hearings, Yeo represented that it was this continuing interest in her athletic and professional reputation that UT-Austin had damaged by its actions.
Here, Yeo presented testimony from multiple witnesses indicating that she had established a reputation as a world-class athlete in her home country of Singapore separate and apart from her intercollegiate swimming career. As a result, much of her reputation had been built outside of the United States and the structure of NCAA intercollegiate athletics. We cannot say that the trial court erred in holding that Yeo had a protected interest under these facts.
UT-Austin, joined by various amici curiae, contends that an affirmance in this case will create a protected interest in every intercollegiate student-athlete to participate in athletic events. We reject this argument and note that we reach this decision because of the unique fact pattern with which we are presented. Based upon the largely undisputed findings of fact, Yeo had already established a protected interest in her reputation as an athlete long before she came to this country to swim competitively as a student-athlete under NCAA rules. Our holding that Yeo, under these facts, has a protected interest should not be read as extending that same protection to every other intercollegiate athlete. The determination of whether a student-athlete has a protected interest is necessarily fact-specific, depending on that athlete’s specific situation and reputation. Each such case must be decided on its own merits, in light of the financial realities of contemporary athletic competition. We hold that Yeo’s established liberty interest in her reputation as an athlete is entitled to due course of law protection and we affirm the trial court’s decision in that regard.

We reject Yeo’s argument and the court of appeals’ holding. The United States Supreme Court has stated, and we agree, that whether an interest is protected by due process depends not on its weight but on its nature. Yeo does not take issue with this principle but argues in effect that the weight of an interest can determine its nature. A stellar reputation like hers, Yeo contends and the court of appeals concluded, is categorically different from a more modest reputation. We disagree. The loss of either may be, to its owner, substantial. The court of appeals held that whether a reputation is constitutionally protected must be decided case by case, but it did not suggest a measure for distinguishing one case from another, and neither does Yeo. We see none, which convinces us that the nature of one’s interest in a good reputation is the same no matter how good the reputation is.

Yeo’s claimed interest in future financial opportunities is too speculative for due process protection. There must be an actual legal entitlement. While student-athletes remain amateurs, their future financial opportunities remain expectations.

Yeo argues that her reputation and future financial interests are entitled to constitutional protection under our decision in University of Texas Medical School v. Than. There we held that a medical student charged with academic dishonesty had a protected liberty interest in a graduate education. But since Than we have refused to accord a student’s interest in athletics the same protection. We decline to equate an interest in intercollegiate athletics with an interest in graduate education.

Accordingly, we hold that Yeo has asserted no interests protected by article I, section 19 of the Texas Constitution. The case must therefore be dismissed. While we need not reach the NCAA’s arguments that it should have been permitted to intervene, we expressly disapprove the court of appeals’ conclusions that the NCAA’s interests were not sufficiently implicated to warrant intervention, and that intervention would have unduly complicated the case.

We have twice reminded the lower courts that “judicial intervention in [student athletic disputes] often does more harm than good.” As the Fifth Circuit has said, judges are not “super referees”. Along the same vein, the United States Supreme Court has observed: “Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” We reiterate this counsel to the trial courts and courts of appeals.

The judgment of the court of appeals is reversed, and judgment is rendered that Yeo take nothing.

Justice WILLETT did not participate in the decision.

      . Tex. Const, art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”).

      . 695 S.W.2d 556, 561 (Tex.1985); accord, In re University Interscholastic League, 20 S.W.3d 690, 692 (Tex.2000) (per curiam) (holding that the disqualification of a high school from participating in a state baseball tournament did not violate players’ constitutional rights); Eanes Indep. Sch. Dist. v. Lo-gue, 712 S.W.2d 741, 742 (Tex.1986) (holding that a dispute over who had won a high school baseball playoff series did not implicate constitutional due process rights).

      . In re University Interscholastic League, 20 S.W.3d at 692; Eanes Indep. Sch. Dist. v. Logue, 712 S.W.2d at 742.

      . 114 S.W.3d 584, 597 (Tex. App .-Austin 2003).

      .2001-2002 NCAA Division I Manual 158, Bylaw 14.5.5.1. These rules appear substantively unchanged in the 2005-2005 NCAA Division I Manual.

        . Id. at 160, Bylaw 14.5.5.2.10.

      . See 2000-2001NCAA Division I Manual at 134, Bylaw 14.1.6.2.2.1.2.

      . In re NCAA, No. 03-02-00143-CV (Tex.App.-Austin Mar. 22, 2002) (orig.proceeding).

      . University of Texas v. Yeo, No. 03-02-00144-CV (Tex.App.-Austin Mar. 22, 2002, no pet.).

      . 114 S.W.3d 584 (Tex.App.-Austin 2003).

      . 48 Tex. Sup.Ct. J. 50 (Oct. 15.2004).

      . See NCAA v. Jones, 1 S.W.3d 83, 84, 87-88 (Tex.1999) (holding that an appeal of a temporary injunction against the NCAA, prohibiting enforcement of NCAA rules that would have cost a football player his eligibility for one season, was not moot after the season ended because "NCAA Operating Bylaw 19.8 (the 'Restitution Rule’) ... authorizes the NCAA to impose retroactive sanctions if an ineligible student-athlete competes under an injunction that is later voluntarily vacated, stayed or reversed, or found by the courts to have been improperly granted”).

      . Id.

      . University of Texas Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995) ("While the Texas Constitution is textually different in that it refers to 'due course’ rather than 'due process,’ we regard these terms as without meaningful distinction. Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (1887). As a result, in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues. Mellinger, 3 S.W. at 252-53; see also Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560-61 (Tex.1985); Tarrant County v. Ashmore, 635 S.W.2d 417, 422-23 (Tex.), cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 606 (1982); House of Tobacco, Inc. v.

        Calvert, 394 S.W.2d 654, 657-58 (Tex.1965); Glen Oaks Util. v. City of Houston, 161 Tex. 417, 340 S.W.2d 783, 784 (1960). Although not bound by federal due process jurisprudence in this case, we consider federal interpretations of procedural due process to be persuasive authority in applying our due course of law guarantee.”).

      . Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 561 (Tex.1985).

      . Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ("The words 'liberty' and ‘property’ as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the 'stigma' which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause. ... While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”) (footnote omitted).

      . 114 S.W.3d at 596-598.

      . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ("But, to determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property. ”)(citation omitted); Goss v. Lopez, 419 U.S. 565, 575-576, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) ("[I]n determining 'whether due process requirements apply in the first place, we must look not to the "weight” but to the nature of the interest at stake.’ [Id. at 570-571, 95 S.Ct. 729.] ... The Court's view has been that as long as a property deprivation is not de min-imis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); [Roth, 408 U.S. at 570 n. 8, 92 S.Ct. 2701].”).

      . Roth, 408 U.S. at 577, 92 S.Ct. 2701 ("To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).

      . See also, e.g., Hall v. NCAA, 985 F.Supp. 782, 799-800 (N.D.Ill.1997); Hawkins v. NCAA, 652 F.Supp. 602, 609-612 (C.D.Ill.1987) (explaining the speculative nature of such claims due to the numerous variables which may arise and affect an athlete's claim).

      . 901 S.W.2d 926 (Tex.1995).

      . Id. at 929, 934.

      . In re University Interscholastic League, 20 S.W.3d 690, 692 (Tex.2000) (holding that high school students did not have a constitutionally protected interest in participating in a state baseball tournament).

      . Id. at 692; Earns Indep. Sch. Dist. v. Logue, 712 S.W.2d 741, 742 (Tex.1986).

      . Hardy v. University Interscholastic League, 759 F.2d 1233, 1235 (5th Cir.1985).

      . Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).


author: HOLCOMB, J., KEASLER, J.,

text:
    Gregory RUSSEAU, Appellant, v. The STATE of Texas.
    No. AP-74466.
    Court of Criminal Appeals of Texas.
    June 29, 2005.
    Rehearing Denied Oct. 5, 2005.

      Donald F. Killingsworth, Tyler, for Appellant.
    Michael J. Sandlin, Assistant District Attorney, Tyler, Matthew Paul, State’s Attorney, Austin, for State.
   HOLCOMB, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, and COCHRAN, JJ, joined.

A Smith County jury found appellant guilty of capital murder under Texas Penal Code § 19.03(a)(2). Appellant’s punishment was assessed at death. We will affirm in part and reverse in part.

The Record Evidence

The record reflects the following: On May 30, 2001, 75-year-old James Syvert-son was murdered at his Tyler auto repair garage. Syvertson’s widow testified at trial that he left for work at approximately 7:00 a.m. on the day in question and that she spoke with him on the telephone sometime that morning. She further testified that he ate lunch at a “Luby’s” cafeteria every day and that he usually left the garage at about 10:45 a.m. in order to “beat the crowd.” The manager of the “Luby’s” cafeteria testified that he saw Syvertson at approximately 11:00 a.m. on the day in question.

Mrs. Syvertson testified that she went to Syvertson’s garage sometime between 11:00 a.m. and noon. At that time, she noticed Syvertson’s gray Chevrolet Corsica parked outside. The doors to the garage were locked. She knocked on the doors but got no answer, so she left.

Katie Jordan testified that she contacted Syvertson by telephone sometime between 11:30 and 11:45 a.m. Syvertson told her that he could do some repair work for her employee, Bob Bruner, if he brought his car to the garage right away. When Bruner arrived at the garage between 12:20 and 12:30 p.m., the gray Corsica was parked outside, a light was on inside the garage, and a large fan was running on the side of the garage, but the doors to the garage were locked. Bruner knocked but got no answer. Bruner parked his car outside the garage and left. At 1:30 p.m., Bruner called Syvertson from his cell phone but got no answer. Bruner drove by the garage at about 2:00 p.m. The gray Corsica was still parked outside, and the light and fan were still on. Bruner returned to the garage at about 5:30 p.m. The gray Corsica was still parked outside, the light and fan were still on, and the garage doors were locked. Bruner knocked on the garage doors again but got no answer.

Mrs. Syvertson testified that she went back to the garage sometime in the afternoon and found the doors still locked. She knocked but got no answer. She went to get her daughter, who had a key to the garage. When they returned at 7:00 p.m., the gray Corsica was gone. Once inside the garage, they found Syvertson’s body lying face down in a pool of blood next to a white Chevrolet Corsica. (Apparently, Sy-vertson was working on the white Corsica when he was murdered.) Rigor mortis had set in, and it appeared that Syvertson had been hit in the head several times with a hard object. The wallet he usually carried and the keys he usually kept clipped to his belt loop were both missing, and one of his pants pockets had been turned inside out. Several valuable tools were also missing from the garage. A bolt on an office door was broken and hanging by a single screw. Police testified that the door “looked like it had been kicked in.”

The medical examiner who performed the autopsy on Syvertson’s body testified that the manner of death was homicide and the cause of death was blunt force head injuries. Syvertson suffered multiple abrasions and lacerations to the front and back of his head. Many of the abrasions had a crescent or half-moon shape, and one had a circular outline. The blows were delivered with a blunt object that had a round, flat surface and was either fairly heavy or used with a great deal of force. The medical examiner estimated that the time of death was between 11:00 a.m. and 2:00 p.m.

Several witnesses testified that they saw appellant in the vicinity of the garage on the day of the murder. Robert Menefee testified that appellant came to his house “sometime after lunch” and inquired about buying some illicit drugs. Terry Seaton testified that appellant arrived at his house on foot at 3:00 p.m. Appellant told Seaton that he had been getting “high” on crack cocaine and asked Seaton whether he would sell him some crack. Seaton refused to sell drugs to appellant but gave appellant a small amount of change and drove him to “some duplexes” nearby.

At about 7:30 p.m., appellant arrived at the home of his friend Lisa Tucker, who was about to leave on a date with her boyfriend, Marcus Tilley. Appellant told Tucker and Tilley that his car had broken down, and he asked for a ride to his mother’s house. On the way, appellant pointed to a gray Corsica parked behind a house and told them that it was his wife’s car and that it had stalled. As they approached the intersection near Syvertson’s garage, they saw police, an ambulance, and crime scene tape. Tucker and Tilley wanted to drive by the garage to see what was going on, but appellant asked that they continue driving. Tilley decided to turn and drive by the garage. Before they reached appellant’s mother’s house, appellant had Til-ley drop him off “at a house on Gaston Street.” Menefee’s residence was on Ga-ston Street.

Appellant visited Menefee’s residence again that evening. They talked briefly, and appellant left on foot. Between 9:00 and 10:00 p.m., appellant returned to Sea-ton’s house and spoke to him for a few minutes, then continued down the alley on foot.

Lashundra Hall testified that she saw appellant smoking crack cocaine in Long-view sometime in the afternoon or evening. She saw him again at about 3:20 a.m. the next morning, and appellant was driving a gray Corsica. He asked her where he could “get more crack and rent the car out for crack.” She got into the car, but they were stopped by Longview police about ten minutes later. Police discovered title and registration documents to the gray Corsica in appellant’s pocket. Syvertson’s keys were in the ignition.

Fingerprint and DNA evidence recovered from the garage connected appellant to the crime. Appellant’s fingerprints and a palm print were found on the white Corsica next to Syvertson’s body. Syvert-son’s son testified that a hammer leaning against a plastic bottle on a shelf near the body was out of place. Hams found on the bottle were consistent with appellant’s DNA.

Witnesses testified that a man named Ray Charles Berry was in the vicinity of Syvertson’s garage at 1:30 p.m. on the day of the murder. Berry, who lived in the neighborhood, was seen standing near Sy-vertson’s garage at 1:30 p.m. eating lunch out of a brown paper sack. No evidence linked Berry to the crime; Berry’s fingerprints did not match any of those found on the white Corsica. In a hearing outside the presence of the jury, Berry invoked his Fifth Amendment right against self-incrimination.

The Sufficiency of the Evidence

In his first point of error, appellant argues that the record evidence is legally insufficient to support his conviction for capital murder. In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To convict appellant of capital murder, the jury was required to find beyond a reasonable doubt that appellant intentionally committed murder in the course of committing or attempting to commit robbery or burglary. Appellant argues that the evidence is legally insufficient to show murder in the course of robbery because the State failed to prove intent to rob Syvertson during or prior to his murder. However, the evidence in a capital murder prosecution need be sufficient to establish only one of the underlying felonies alleged in the indictment. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App.1999); Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995). Thus, if the evidence in this case established burglary, we need not examine whether there was sufficient evidence to show robbery.

A person commits a burglary if, without the effective consent of the owner, he enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault. See Tex. Pen.Code § 30.02. In a prosecution for capital murder, the requirement that a felony be committed is satisfied by the murder of the victim. Matamoros, 901 S.W.2d at 474. The evidence also showed a lack of consent to enter the garage. Specifically, police officers testified that the door to the office in the garage was damaged and looked as if it had been “kicked in.” Based on the evidence at trial, a rational jury could have concluded beyond a reasonable doubt that appellant committed murder in the course of burglary. Point of error one is overruled.

In his second point of error, appellant contends that the evidence of intent to commit robbery or burglary was factually insufficient to support the jury’s verdict. In a factual sufficiency review, we view all of the evidence in a neutral light and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and unjust, or the contrary evidence is so strong that the “beyond a reasonable doubt” standard of proof could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). A clearly wrong and unjust verdict occurs when the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997).

Appellant offered evidence that Berry may have committed the crime, that no one saw appellant in or near the garage, and that no one proved appellant stole the gray Corsica. Viewing all the evidence in a neutral light, we conclude that the evidence supporting the verdict was not so weak as to be clearly wrong and unjust. There was ample evidence showing that appellant was in the midst of a drug binge on the day of the murder, that he was in search of crack cocaine, and that he was willing to rent out Syvertson’s gray Corsica in order to get more drugs. Appellant’s fingerprints, a palm print, and some of his hair were found next to Syvertson’s body. Appellant was found driving Syvertson’s gray Corsica and the title documents were found in appellant’s pocket. The keys to the gray Corsica, which Syvertson usually wore on his belt, were found in the ignition of the car when appellant was stopped by police. In light of the overwhelmingly in-culpatory evidence, the contrary evidence is not so strong that the standard of proof could not have been met. Point of error two is overruled.

In his tenth point of error, appellant challenges the legal sufficiency of the evidence at the punishment phase of the trial. Appellant claims the evidence was legally insufficient to support the jury’s affirmative answer to the special issue concerning his future dangerousness. We review the evidence in the light most favorable to the jury’s verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim. Proc. art. 37.071 § 2(b)(1).

At the punishment phase, the State introduced evidence that appellant had several prior felony and misdemeanor convictions for, among other things, engaging in organized criminal activity, burglary of a habitation, theft, burglary of a building, attempted burglary of a building, burglary of a vehicle, and possession of a controlled substance; that he committed numerous disciplinary infractions while incarcerated in the Smith County Jail and in the Texas Department of Criminal Justice, Institutional Division (TDCJ); and that he had multiple probation and parole violations. In addition, a psychologist and two psychiatrists testified that appellant exhibited characteristics of anti-social personality disorder and that he would likely commit criminal acts of violence in the future. One of the psychiatrists also testified, without objection, about appellant’s numerous disciplinary offenses while incarcerated in the Smith County Jail and in the Texas Department of Criminal Justice. All of this evidence, when combined with the evidence of the horrific offense of which appellant was convicted in this case, was clearly sufficient to support the jury’s affirmative answer to the future dangerousness special issue. Point of error ten is overruled.

Jury Selection

In points of error fifteen and fifteen-A, appellant contends that the trial court erroneously granted the State’s challenge of prospective juror Tiscareno for cause, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, § 10, of the Texas Constitution. We disagree.

Prospective jurors who can set aside their beliefs against capital punishment and honestly answer the special issues are not properly challengeable for cause. Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Prospective jurors are challengea-ble for cause if their views about the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 88 L.Ed.2d 841 (1985).

We afford the trial court considerable deference, because it is in the best position to evaluate a prospective juror’s demeanor and responses. Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App.1998). We will reverse a trial court’s ruling on a challenge for cause only if a clear abuse of discretion is evident. Ibid. When a prospective juror’s answers are vacillating, unclear, or contradictory, we accord deference to the trial court’s decision. We will not second-guess the trial court when the prospective jurors are persistently uncertain about their ability to follow the law.

In her jury questionnaire, Tiscareno stated that she was generally opposed to the death penalty, that she could not return a verdict which resulted in the death penalty under any circumstances, and that her opposition to the death penalty would interfere with her ability to serve as a juror. But when the trial court questioned Tiscareno, she stated that she could follow the law and answer the special issues based on the evidence even if it would result in the death penalty. When questioned by the State, Tiscareno again said that she could answer the special issues based on the evidence, despite her personal beliefs about the death penalty, but that she would hold the State to a higher burden of proof than beyond a reasonable doubt because it was a capital case. Upon questioning by defense counsel, Tiscareno stated she could follow the law regarding the burden of proof. The trial court then explained the burden of proof and questioned Tiscareno again. After expressing doubts, Tiscareno finally stated that she could hold the State to its proper burden.

Tiscareno was challenged for cause. Upon granting the challenge, the trial court concluded that Tiscareno had “a bias or prejudice as to the law upon which the State and the defense are entitled to rely.” The trial court further stated: “She is vacillating with respect to her ability, and even when I questioned her at the very end to try to clarify it, she still vacillated in her ... answers to the Court.”

We defer to the trial court’s ruling on a challenge for cause, because the trial judge was present to observe the demean- or of the prospective juror and to listen to her tone of voice. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002). And, we give particular deference to the trial court when the potential juror’s answers are vacillating, unclear or contradictory. Ibid. The record reflects that Tiscareno vacillated about her position on the death penalty and gave conflicting answers about her ability to follow the law; thus we defer to the trial court, as it was in a better position to evaluate her ability to serve on the jury. Points of error fifteen and fifteen-A are overruled.

The Confrontation Clause Guarantee

In points of error sixteen and sixteen-A, appellant argues that the trial court violated his Sixth Amendment right to confront the witnesses against him when the court admitted in evidence, at the punishment phase, State’s Exhibits numbers 242-254, which were Smith County Jail “incident reports,” and State’s Exhibits numbers 255-260, which were TDCJ “disciplinary reports.” The trial court admitted these reports under the business records exception to the hearsay rule. See Tex.R. Evid. 803(6). The reports contained statements which appeared to have been written by corrections officers and which purported to document, in the most detailed and graphic of terms, numerous and repeated disciplinary offenses on the part of appellant while he was incarcerated. It further appeared that, in writing the statements, the corrections officers relied upon their own observations or, in several instances, the observations of others. None of the individuals who supposedly observed appellant’s disciplinary offenses testified at his trial. Appellant’s alleged disciplinary offenses included threatening physical harm and even death to others, refusing to work or cooperate, breaking out of his cell at night, exposing himself and masturbating in front of jailers and other inmates, verbally abusing jailers and other inmates, fighting with other inmates, and possessing contraband, including improvised weapons. The record also reflects that most of the written reports detailing appellant’s alleged disciplinary offenses were read aloud to the jury at the punishment phase and that the prosecutor referred to the reports numerous times during his closing argument at that phase.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and bars the admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him, Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Generally speaking, a statement is “testimonial” if it is a solemn declaration made for the purpose of establishing some fact. Id. at 51,124 S.Ct. 1354.

The reports in question contained testimonial statements which were inadmissible under the Confrontation Clause, because the State did not show that the declarants were unavailable to testify and appellant never had an opportunity to cross-examine any of them. Indeed, the statements in the reports amounted to unsworn, ex parte affidavits of government employees and were the very type of evidence the Clause was intended to prohibit. Id. at 50, 124 S.Ct. 1354. The trial court erred in admitting those portions of the reports that contained the testimonial statements.

Having found constitutional error, we need not reverse the trial court’s judgment if we conclude beyond a reasonable doubt that the error did not contribute to appellant’s punishment. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See generally W. LaFave, et al., Criminal Procedure § 27.6(e) (2d ed.1999). We cannot so conclude, however. Given the highly damaging nature of the reports and the fact that the prosecutor repeatedly emphasized them during his closing argument, we find it impossible to say beyond a reasonable doubt that the reports did not influence the jury in its assessment of appellant’s future dangerousness. We sustain points of error sixteen and sixteen-A.

In points of error seventeen and seventeen-A, appellant argues that the trial court violated his right to confrontation under Texas Constitution article I, § 10, when the court admitted in evidence State’s Exhibits numbers 242-260. However, because appellant provides no argument or authority with respect to the protection provided by the Texas Constitution, we overrule these points of error as inadequately briefed. See Tex.R.App. Proc. 38.1(h).

Scientific Evidence

In points of error eight and nine, appellant challenges the trial court’s admission of certain scientific evidence at both the guilt and punishment phases of the trial. He argues that the evidence failed to meet the admissibility requirements of Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

Texas Rule of Evidence 702 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 or otherwise.” Under Rule 702, it is the trial court’s responsibility to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. Jackson v. State, 17 S.W.3d 664, 670 (Tex.Crim.App.2000). A trial court’s ruling on the admissibility of scientific expert testimony is reviewed under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).

The proponent of scientific evidence must demonstrate to the trial court, by clear and convincing evidence, that the scientific evidence is reliable. Id. The proponent of “hard” scientific evidence must satisfy three criteria to demonstrate reliability: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and, (3) the technique was properly applied on the occasion in question. Kelly, 824 S.W.2d at 573. Other non-exclusive factors that could affect a trial court’s determination of reliability include: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature- supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Ibid.

In point of error eight, appellant asserts the trial court erred in admitting fingerprint-comparison evidence. Connie Castle, a crime-scene investigator with the Tyler Police Department, testified that she compared the fingerprints recovered from the crime scene to the fingerprints obtained from appellant and determined he was the person who left the fingerprints on the white Corsica. Defense counsel objected, and the trial court held a hearing to determine the reliability of the evidence. Castle testified that fingerprint comparison was a legitimate field of expertise, that the method she followed here was the accepted method within the field of expertise, and that the same method was used by the Federal Bureau of Investigation (FBI), the Department of Public Safety (DPS), and other law enforcement agencies. Castle also testified that she had sixteen years of experience in fingerprint comparison, that she had received training on the subject at numerous schools, and that she had routinely kept up with new techniques and developments within the field. She further testified that she had given expert testimony on fingerprint comparison numerous times in both state and federal court and that her findings in this case were reviewed and confirmed by at least three other people trained in the field, including a Tyler Police Department investigator and an FBI agent.

Walter Henson, a sixteen-year veteran of the DPS crime laboratory and a latent-fingerprint examiner, testified about the general reliability of fingerprint-comparison evidence. Henson testified that he is an instructor in fingerprint comparison, that he has compared hundreds of thousands of fingerprints in his career, that he has given expert testimony on fingerprint comparison in both state and federal courts, that he has received specialized training in fingerprint comparison from the FBI and the DPS, and that he had kept abreast of new technologies within the field. He testified further that peer review was a critical part of fingerprint comparison, and that there was “no known error rate attached to the comparison of latent prints.” He further testified that courts have relied on fingerprint evidence for over one hundred years and that it is generally accepted in the scientific community that no two people have the same fingerprints.

Based on Castle’s and Henson’s testimony, the trial court found that the fingerprint evidence was relevant and reliable, that Castle was qualified to testify as an expert, that the underlying scientific theory and techniques were valid and were properly applied, that there was no rate of error, that the underlying scientific theory and technique were accepted as valid by the relevant scientific community, that other experts were available to test and evaluate the technique, and that the underlying scientific theory and techniques were explained with sufficient clarity. The trial court acknowledged the existence of articles calling for further testing of the theory and technique, but stated that “there’s nothing that says this is not valid.”

Despite its long history of general acceptance and admissibility in our trial courts, some tribunals have addressed concerns about, and challenges to, expert fingerprint comparison testimony. See U.S. v. Mitchell, 365 F.3d 215, 250-51 (3rd Cir. 2004); U.S. v. Crisp, 324 F.3d 261, 266-68 (4th Cir.2003); U.S. v. Llera Plaza, 188 F.Supp.2d 549 (E.D.Pa.2002) (op. on reh’g) (exhaustive account of fingerprint use as crime-detection technique, its origins and developmental history, and the present-day training and testing of forensic experts). In Llera Plaza, on rehearing, the district court reversed its own decision excluding expert testimony that a latent fingerprint was that of a particular person. Based on our review of the record and our own well-established history, we conclude that fingerprint-comparison testimony is admissible under Texas Rule of Evidence 702 because it is reliable and it assists the trier of fact in its task of determining whether a latent fingerprint is that of a particular person. Were we to be persuaded by the initial concerns of Judge Pollack in Llera Plaza, it would not affect our analysis, because the testimony in this case satisfied the factors set forth in Kelly. Therefore, the trial court did not abuse its discretion in admitting the fingerprint-comparison evidence. Point of error eight is overruled.

In point of error nine, appellant complains that the trial court erred in admitting the expert testimony of Dr. Sue Stone and Dr. Tynus McNeel that appellant posed a risk of future dangerousness because the State did not lay a proper foundation, as required by Kelly v. State and Nenno v. State.

“When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences.” Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998). When “soft” sciences are at issue, the trial court should inquire: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Ibid.

Dr. Stone, a psychologist with the Texas Department of Criminal Justice (TDCJ), and Dr. McNeel, a privately employed psychiatrist, testified there was a probability appellant would commit criminal acts of violence in the future that would constitute a continuing threat to society. Prior to their testimony, the trial court held a hearing to determine the reliability of their testimony. Stone testified that she was a licensed psychologist with a doctorate in clinical psychology, that she had received post-doctorate specialized training in violence risk assessment, and that she gained experience in risk assessment while completing her post-doctoral training with TDCJ and while working for the Texas Youth Commission. Stone had given presentations on violence risk assessment to other mental-health professionals and had previously testified as an expert witness in a capital murder case.

Stone’s opinion of appellant’s future dangerousness was based on the offense reports, the autopsy report, crime-scene photographs, a videotape and transcript of appellant’s interview with investigators, witness statements, transcripts of witness interviews, arrest records and prior-offense records, TDCJ institutional and parole records, Smith County jail and probation records, and news footage of the offense, crime scene, and bond hearing. When reviewing the material and making her assessment, she used a combination of theory and technique that had been subjected to peer review and publication and was generally accepted within the scientific community. She drew upon her training, education, and experience in clinical and forensic psychology, and thoroughly reviewed literature on violence risk assessment and psychopathy. She also used the “guideline of the DSM4,” which is published by the American Psychiatric Association and widely used as a standard in the field.

McNeel testified that he was board-certified in general psychiatry, forensic psychiatry, and addiction psychiatry, and that he had testified on future dangerousness in a number of other cases. He testified that risk assessment of future dangerousness is a legitimate field of expertise. McNeel reviewed reports, pictures, jail records, prison records, parole records, and other discovery items in support of his testimony on future dangerousness, and he relied upon his specialized knowledge and his review of current scientific literature in the field. He testified that the theory and technique he used were derived from published research studies that had been subjected to peer review and are generally accepted within the relevant scientific community.

The trial court found that the State met its burden of demonstrating the reliability of the opinion testimony and admitted the evidence in question. Based on the record before us, we conclude that the State met the requirements of Kelly and Nenno. Thus, the trial court did not abuse its discretion in admitting the expert testimony on future dangerousness. See Griffith v. State, 983 S.W.2d 282, 288 (Tex.Crim.App.1998) (potential of future dangerousness is a question of fact which the jury must answer and testimony from mental health experts is relevant to future dangerousness special issue). Point of error nine is overruled.

Im/proper Question

In point of error eighteen, appellant argues that the State improperly questioned Dr. Sue Stone about the specifics of another capital case in which she had testified about future dangerousness. As noted, Stone concluded that there was a probability that appellant would commit criminal acts of violence that would constitute a continúing threat to society. On cross-examination, defense counsel asked Stone whether she had previously testified about future dangerousness in a capital case. In response, she said she had testified as a witness for the State, that she had concluded there was a probability that the defendant in that case would be a continuing threat to society, and that she had never testified for the defense in a capital case.

On re-direct examination, the prosecutor asked Stone the name of the capital case in which she had previously testified for the State. Stone replied, “The Newton Anderson case.” The prosecutor then asked Stone to tell the jury a little bit about the facts of that case. Appellant immediately objected under Texas Rule of Evidence 403, complaining that to compare one capital murder case with another is highly prejudicial. The prosecutor responded that he was not attempting to compare the cases, but rather he wanted to show that Stone was “not just a rubber stamp for the State.” The trial court sustained the objection, stating that the prosecutor could re-phrase the question in such as way as to not go into the details of the other case.

The prosecutor then asked whether Dr. Stone’s evaluation of appellant’s case was related in any way to her evaluation in the Newton Anderson case. Stone replied that it did not and confirmed that her opinion in appellant’s case was based only upon the information of his case. When the prosecutor asked whether the jury assessed the death penalty in the Newton Anderson case, defense counsel immediately objected and requested an instruction to disregard. The trial court sustained the objection, sent the jury out of the courtroom, and denied defense counsel’s motion for a mistrial. When the jury returned, the trial court explained that the State’s question was “completely irrelevant and improper and impermissible.” The trial court instructed the jury in pertinent part as follows:

So I’m instructing you to completely disregard the last question asked by State’s counsel. If that question in any way invited you to make a decision on an improper basis, I’m telling you, don’t do it. I’m telling you that you are to make your decisions in this case based upon the evidence that’s properly before you in the case.
You are to disregard that question. You’re not to consider it for any purpose whatsoever. You’re to make your decisions on the evidence that’s properly before you in this case, individualized decision-making based upon proper evidence in this cause.
That’s what you’ve taken an oath to do, and with confidence that you’re going to do that, the Court denies the motion for a mistrial made by the Defense.

The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ibid. We review the trial court’s denial of a mistrial under an abuse of discretion standard.

The trial court did not abuse its discretion in denying appellant’s motion for a mistrial, because the question at issue went unanswered and the trial court explained that the question was improper and that it should be disregarded. Moreover, the question was not of such character as to suggest the impossibility of withdrawing the impression produced on the jurors’ minds. Point of error eighteen is overruled.

Punishment Claims

In points of error three, four, and five, appellant argues that the Texas death penalty statute is unconstitutional because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), require that the special issues be alleged in the indictment. He further asserts that the indictment was fundamentally defective and the trial court erred in failing to quash it.

In Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App.2003), we held that Appren-di does not require the State to allege the special issues in the indictment. Nor can we find such a requirement in Ring. Thus, we hold that Apprendi and Ring have no applicability to Article 37.071 in its current form. See Rayford, 125 S.W.3d at 534. Points of error three, four, and five are overruled.

In point of error six, appellant again cites Apprendi and Ring and argues that the Texas capital-sentencing scheme is unconstitutional because it fails to assign a burden of proof on the mitigation special issue. We have previously rejected this argument. Rayford, 125 S.W.3d at 533-34; Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex.Crim.App.2003), cert. denied, 541 U.S. 1032, 124 S.Ct. 2098, 158 L.Ed.2d 713 (2004). Point of error six is overruled.

In point of error seven, appellant urges this Court to conduct a sufficiency review of the mitigation special issue and asserts that “the failure to do so violates [his] constitutional and statutory rights and renders the statute unconstitutional.” Again, we do not review the sufficiency of the evidence to support a jury’s negative answer to the mitigation special issue. McGinn, 961 S.W.2d at 166. We have rejected the claim that this deprives a defendant of “meaningful appellate review.” Green v. State, 934 S.W.2d 92, 106-07 (Tex.Crim.App.1996); McFarland v. State, 928 S.W.2d 482, 498-99 (Tex.Crim.App.1996). We have also rejected the claim that the mitigation special issue violates the Eighth Amendment on the ground that meaningful appellate review of the jury’s determination is impossible. Prystash v. State, 3 S.W.3d 522, 535-36 (Tex.Crim.App.1999). Point of error seven is overruled.

In point of error eleven, appellant contends that the “10-12 rule” violates the Eighth Amendment principles discussed in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). He further argues that the trial court violated his constitutional rights by instructing the jury in this manner. We have previously decided this issue adversely to appellant. Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App.1996); Lawton v. State, 913 S.W.2d 542, 558-59 (Tex.Crim.App.1995). Point of error eleven is overruled.

In point of error twelve, appellant contends that Article 37.071 violates the Eighth and Fourteenth Amendments because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously decided this issue adversely to appellant. Shannon v. State, 942 S.W.2d 591, 600-01 (Tex.Crim.App.1996); Lawton, 913 S.W.2d at 559. Point of error twelve is overruled.

In points of error thirteen and fourteen, appellant challenges the trial court’s rulings on his “Motion to Preclude the Death Penalty as a Sentencing Option.” Appellant alleges that the trial court erred “in quashing [his] subpoenas relating to [his] motion” and “refusing to allow [him] to make an offer of proof by question and answer when the trial court quashed his subpoenas.” Appellant further requests an abatement of the appeal to permit counsel to develop the appellate record. See Spence v. State, 758 S.W.2d 597, 599-600 (Tex.Crim.App.1988).

Appellant alleged in his pretrial motion that the Texas death penalty statute was unconstitutional because it failed to provide a consistent statewide method for determining in which cases the death penalty would be sought. Appellant subpoenaed district attorneys and county judges from several different counties to testify in connection with the motion. The trial court granted the State’s motion to quash the subpoenas. Seven of the subpoenaed witnesses appeared at the hearing on appellant’s motion, and appellant requested to set out their testimony in a bill of exception. The trial court refused to allow the testimony for the purposes of a bill of exception, because the witnesses had no personal knowledge about appellant’s case. However, the trial court offered appellant additional time to propound “depositions on written questions” to persons in Smith County with relevant information as to whether appellant was “improperly pursued” in the instant case.

The trial court did not err in quashing the subpoenas. The State has discretion to seek the death penalty, and this discretion is not unconstitutional. Hankins v. State, 132 S.W.3d 380, 387 (Tex.Crim.App.2004); Ladd, 3 S.W.3d at 574. Appellant was not entitled to subpoena district attorneys and county judges and question them regarding the exercise of prosecutorial discretion which we have held to be constitutional. See Hankins, 132 S.W.3d at 388. Thus, an abatement would serve no purpose in the instant case. Points of error thirteen and fourteen are overruled.

We affirm the judgment of the trial court as it relates to appellant’s conviction, we reverse the judgment of the trial court as it relates to appellant’s punishment, and we remand the case to the trial court for a new punishment hearing under Texas Code of Criminal Procedure article 44.29(c).

KEASLER, J., filed a dissenting opinion.

KELLER, P.J., and MEYERS and HERVEY, JJ., dissented without written opinion.

KEASLER, J.,

dissenting.

I dissent to the majority’s resolution of points of error 16 and 16A.

The exhibits at issue in these points of error are business records. The Supreme Court specified in Crawford v. Washington that business records are not testimonial hearsay. Many other courts have acknowledged this. As a result, Ohio v. Roberts controls. And because these exhibits fall within a firmly rooted exception to the hearsay rule, they do not violate the Confrontation Clause.

      . Appellant also argues that the evidence of future dangerousness is factually insufficient. However, we do not conduct factual sufficiency reviews of the future dangerousness special issue. McGinn v. State, 961 S.W.2d 161, 169 (Tex.Crim.App.1998).

      . When conducting a legal sufficiency review, we consider all the record evidence, including evidence that was inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

      . In Weatherred v. State, 15 S.W.3d 540, 542 fn. 5 (Tex.Crim.App.2000), we discussed the difference between the "hard” sciences and the "soft” sciences.

      . Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Kelly hearings, subsequent courts may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in those prior hearings. Hernandez v. State, 116 S.W.3d 26, 29 (Tex.Crim.App.2003); Weatherred, 15 S.W.3d at 542 n. 4. The trial court here took judicial notice “of the opinions of the Texas Court of Criminal Appeals and the Twelfth Court of Appeals relative to the admissibility of fingerprint evidence,” citing Moore v. State, 109 S.W.3d 537 (Tex.App.Tyler 2001, pet. ref'd), and Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.1994).

      . State’s witness Dr. Edward Brown Gripon also testified regarding appellant's risk of future dangerousness, but appellant does not challenge the admission of Gripon’s testimony-

      . 541 U.S. 36, 124 S.Ct. 1354, 1367, 158 L.Ed.2d 177 (2004).

      . See, e.g., Rios v. Lansing, 116 Fed.Appx. 983 (10th Cir.2004); United States v. Guitierrez-Gonzales, 2004 U.S.App. LEXIS 21038 *5-6 (5th Cir.2004); United States v. Lee, 374 F.3d 637, 644 (8th Cir.2004); Johnson v. Renico, 314 F.Supp.2d 700, 707 (E.D.Mich.2004); United States v. Saner, 313 F.Supp.2d 896, 900 n. 1 (S.D.Ind.2004); Perkins v. State, 897 So.2d 457, 464 (Ala.Crim.App.2004); People v. Cervantes, 12 Cal.Rptr.3d 774, 118 Cal.App.4th 162, 12 Cal.Rptr.3d 774, 782 n. 5 (2004); People v. Schrek, 2004 Colo.App. LEXIS 1712 *34 (Colo.App.2004); State v. Rivera, 268 Conn. 351, 844 A.2d 191, 202 n. 13 (2004); People v. Capellan, 6 Misc.3d 809, 791 N.Y.S.2d 315 (N.Y.Crim.Ct.2004); People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401, 403 (N.Y.2004); State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412, 420 (2004); State v. McKinney, 2004 Ohio App. LEXIS 5033 *34 (Ohio App.2004); State v. Mack, 2004 Ore. LEXIS 792 *9 n. 5 (Ore.2004); Commonwealth v. Eichele, - A.3d -, 2004 WL 2002212, 2004 Pa. D. & C. LEXIS 39 *11 (Pa.Commw.Ct.2004); Barela v. State, 2004 WL 2192604 at *7, 2004 Tex.App. LEXIS 8802 *17 (Tex.App.-El Paso 2004); Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555, 570 (2004); State v. Manuel, 275 Wis.2d 146, 685 N.W.2d 525, 532 n. 9 (App.2004).

      . 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

        . Crawford, 124 S.Ct. at 1373.


text:
    Patrick Onyango KOMBUDO, Appellant, v. The STATE of Texas.
    No. PD-1832-04.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 14, 2005.
    Wayne T. Hill, Houston, for Appellant.
    Donald W. Rogers, Jr., Asst. D.A., Houston, Matthew Paul, State’s Attorney, Austin, for State.
   PER CURIAM.

The Fourteenth Court of Appeals reversed the judgment convicting the appellant of bail jumping on the grounds that the trial court violated his rights, under the federal and state constitutions, to represent himself. See Kombudo v. State, 148 S.W.3d 547 (2005).

The State argued in its brief to the Court of Appeals that, by his misleading the trial court, the appellant was estopped from asserting those grounds. The State’s brief presented a “Reply,” which had four parts: a summary of the appellant’s contention, a statement of the “relevant facts,” a statement of the “standards of review,” and an argument entitled, “No Reversible Error Is Shown.” In that part, after reiterating the facts, the brief argued that the appellant was estopped from raising his complaints:

Under these unique circumstances, appellant should be estopped from asserting that he did not receive the proper Faretta admonishments from the trial court or that the trial court otherwise erred in determining the self-representation issue under either the State or federal constitution because he personally contributed to misleading [the assigned trial judge] into believing that the matter had already been properly determined by [the district judge at a previous hearing]. See and compare [citation omitted] (holding State estopped ... and discussing other estoppel cases). See also [citation omitted] (holding defendant estopped-) Cf. [citation omitted] (holding defendant estopped.... “Under the doctrine of invited error, a party will be estopped from asserting error when the party’s own conduct induced the eiTor. In our view, defendant is now estopped from complaining that the trial court took him at his word....”)

It presented no argument other than es-toppel.

The opinion of the Court of Appeals did not respond to that argument.

The State filed a motion for rehearing which argued, “The case was incorrectly decided because the panel opinion misinterpreted and failed to address the State’s sole contention timely raised in its brief on original submission that under the circumstances presented appellant should be es-topped from complaining that he was denied his right to self-representation.” The motion was denied. The State moved for rehearing by the Court en banc on the same ground. The motion was denied.

We granted review.

Rule of Appellate Procedure 47.1 requires, “The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.” This rule requires a court of appeals to address an appellee’s reply that the appellant’s point was not preserved for review. When an opinion fails to address even an alternative argument in an appel-lee’s reply, this court may remand the case to the court of appeals.

The Court of Appeals should have addressed the State’s estoppel argument, which was necessary to the disposition of the appeal.

The judgment of the Court of Appeals is vacated, and the case is remanded to that court.

MEYERS, J., did not participate in the decision.

      . Brief at 11-12.

      . Motion at 1-2.

      . Motion at 1-2.

      . Weatherford v. State, 828 S.W.2d 12 (Tex.Cr.App.1992) (per curiam).

      . Light v. State, 15 S.W.3d 104, 108 (Tex.Cr.App.2000) (per curiam).