author: Opinion by Justice HINOJOSA.

text:
    Guillermo Moreno LERMA, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-00145-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 22, 2005.

      Rogelio Garza, Edinburg, for appellant.
    Theodore C. Hake, Diane Palmiotti, Asst. Criminal Dist. Attys., Rene A. Guerra, Criminal Dist. Atty., Edinburg, for ap-pellee.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by Justice HINOJOSA.

A jury found appellant, Guillermo Moreno Lerma, guilty of the offense of capital murder, and the trial court assessed his punishment at life imprisonment. The trial court has certified that this “is not a plea bargain case, and [appellant] has the right of appeal.” See Tex.R.App. P. 25.2(a)(2). By three points of error, appellant complains the trial court erred in denying his motion to suppress tangible and oral evidence and in denying his request to exclude the media during his testimony in support of the motion to suppress. We affirm.

A. BACKGROUND

The record reflects that the victim’s mother awoke at approximately 5:00 a.m. and found her two-year-old child and appellant gone from their apartment. After searching for her daughter and appellant, and also finding certain items missing, the mother used a neighbor’s telephone and called the police. An officer arrived, searched the apartment for the child, found no signs of forced entry, and took an incident report. The officer left and a police broadcast was issued for the missing child, including appellant’s physical and vehicle description. At approximately 6:30 a.m., appellant returned to the apartment complex in his vehicle but without the child. On the curb next to the vehicle, the mother confronted appellant concerning the child’s whereabouts.

Officer Reynero heard the broadcast while on patrol in the area of the apartment complex and began his search. He noticed the vehicle mentioned in the broadcast parked in front of the missing child’s apartment. As he approached, he observed a man and a woman arguing in front of the vehicle. Reynero learned the man was appellant and the woman was the mother of the missing child. Officer Rivas arrived as backup, followed shortly thereafter by Officer Venecia. Leaving the other two officers on the curb with appellant, Reynero escorted the mother to the apartment. A broadcast was issued over the police radio shortly after the officers arrived, advising that appellant had an active arrest warrant; however, the officers on location did not hear the broadcast.

While with appellant, Rivas asked whether he spoke English or Spanish. Appellant said he spoke only Spanish. Rivas then gave appellant the Miranda warnings in Spanish. Venecia asked appellant if he would consent to a search of his vehicle, and appellant responded in Spanish, “Yes, check it out, go ahead.” Appellant assisted by opening the trunk since “the key is kind of tricky.” Rivas questioned appellant regarding the location of the missing child.

During the vehicle search, Sergeant Rodriguez and Corporal Saenz arrived. While briefing them on the situation, appellant suddenly began speaking English to the officers. Rivas again asked appellant if he spoke English. Appellant indicated he did, and Rivas then gave appellant the Miranda warnings in English followed by the questions he had previously asked him in Spanish. Appellant repeatedly maintained he did not know the whereabouts of the child.

Venecia found the reported missing items in appellant’s vehicle. The items were subsequently identified and returned to the mother. Corporal Saenz, aware of the active arrest warrant, ordered Rivas to detain appellant and transport him to the police station. Appellant was arrested at approximately 7:00 a.m.

During the booking procedure, Investigator Ruiz informed appellant of his Miranda rights, and appellant waived them. Appellant signed a written waiver of his Miranda rights at approximately 10:30 a.m. A polygraph examination was suggested by the investigators, and appellant accepted as long as he had an attorney present for the exam. An investigator called the district attorney’s office to have an attorney appointed for appellant. Appellant, however, changed his mind and refused the polygraph and attorney. An investigator then cancelled the request for an appointed attorney.

That afternoon, Investigator Trevino advised appellant of his Miranda rights, and appellant told him it was not necessary because he had already heard them. At approximately 4:30 p.m., appellant confessed that he had killed the child.

Appellant signed another written waiver of his Miranda rights late in the evening. Before midnight, appellant again admitted to killing the child and told Trevino he would take him to the body. After midnight, at approximately 12:30 a.m., the child’s body was found on the banks of a dry canal. Appellant had taken Trevino to the location.

B. Motion to SuppRess

By his first point of error, appellant contends the trial court erred in denying his motion to suppress the items found in his car. Specifically, he asserts the items were the product of an illegal detention, arrest, and search and seizure.

1. Standard of Review

A trial court’s ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex.App.-Corpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999)). In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). In reviewing a trial court’s ruling on a motion to suppress, we afford almost total deference to the trial court’s determination of the historical facts that the record supports, especially when the trial court’s findings turn on evaluating a witness’s credibility and demeanor. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same amount of deference to the trial court’s ruling on “application of law to fact questions,” also known as “questions of law and fact,” if resolving those ultimate questions turns on evaluating credibility and demeanor. Estrada, 154 S.W.3d at 607; Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. However, we review de novo questions of law and “mixed questions of law and fact” that do not turn on an evaluation of credibility and demeanor. Estrada, 154 S.W.3d at 607; Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. Determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal although great weight should be given to the inferences drawn by the trial court and law enforcement officers. Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

The totality of the circumstances test is the current reasonableness standard for reviewing reasonable suspicion arising in warrantless arrests. State v. Cerny, 28 S.W.3d 796, 798 (Tex.App.-Corpus Christi 2000, no pet.). We will sustain the trial court’s ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Perez v. State, 130 S.W.3d 881, 885 (Tex.App.-Corpus Christi 2004, no pet.) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002)). Even if the trial court gives a wrong reason for its decision, so long as a correct theory of law is found, we will sustain the ruling. See id.; Ross, 32 S.W.3d at 855-56.

2. Investigative Detention Leading to Arrest

We first address whether sufficient reasonable suspicion existed to warrant a custodial detention. A police officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articu-lable facts that criminal activity may be afoot, even if the officer lacks evidence rising to the level of probable cause. Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997); Cerny, 28 S.W.3d at 800. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Woods, 956 S.W.2d at 38; Cerny, 28 S.W.3d at 800. In accordance with the Fourth and Fourteenth Amendments, an investigative detention is categorized as a seizure. See Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995).

A brief detention for investigative purposes, limited in time and scope, can readily evolve into an arrest. See United States v. Skareef, 100 F.3d 1491, 1500 (10th Cir.1996). An arrest is a high level of intrusion that mil be longer in duration and will generally commence when a person is actually placed under restraint or taken into custody by an officer. See Tex.Code Crim. PROC. Ann. art. 15.22 (Vernon Supp.2004). However, use of restraint by an officer is not always indicative of an arrest since an officer is permitted to use force reasonably necessary to maintain status quo during investigative detentions. Zayas v. State, 972 S.W.2d 779, 789 (Tex.App.-Corpus Christi 1998, pet. refd). A person is in “custody” only if, given the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996) (citing Stansbury v. California, 511 U.S. 318, 323-25, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). The reasonable person standard assumes a reasonable person innocent of criminal activity. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

The following four situations may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255 (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App.1985)).

A police officer may arrest without a warrant persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony. Tex.Code CRIM. PROC. Ann. art. 14.03(a)(1) (Vernon Supp.2004-05). Probable cause exists where law enforcement officers have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to believe a particular person has committed, or is committing, an offense. Hughes v. State, 24 S.W.3d 833, 838 (Tex.Crim.App.2000); Perez, 130 S.W.3d at 886; Guzman, 955 S.W.2d at 87. Probable cause deals with probabilities; it requires more than mere suspicion, but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Perez, 130 S.W.3d at 886. In reviewing a warrantless arrest to determine the existence of probable cause, the facts known to the officer at the time of the arrest are evaluated. Id. The totality of the circumstances is reviewed to determine the existence of probable cause. See id.

When Officer Reynero stopped his patrol unit after observing appellant and his vehicle, an investigative detention commenced. Specific articulable facts existed raising reasonable suspicion that appellant was involved in criminal activity. See Cerny, 28 S.W.3d at 800. The child was missing; appellant was also missing from the same apartment; no sign of forced entry was present; and an incident report was filed. Investigative questions were asked concerning the whereabouts of the missing child. The officers did not draw their service weapons or advise appellant that he was not free to leave. Appellant did not request to leave. A reasonable number of officers were present to conduct the investigation and maintain status quo. Restraints were not immediately placed on appellant. A reasonable innocent person would not have considered himself in custody at this point. See Dowthitt, 931 S.W.2d at 254. Given the totality of the circumstances, we conclude reasonable suspicion existed to conduct an investigative detention.

The detention, however, rose to the level of arrest at two points during the investigation, and for two separate reasons. The first point was when Corporal Saenz arrived with knowledge of an arrest warrant. Although appellant was not immediately advised of his impending arrest or handcuffed, he was then considered in custody. See Dowthitt, 931 S.W.2d at 255. The second point arose from the finding of the missing items in appellant’s vehicle. Those findings combined with the totality of the circumstances warranted probable cause. We conclude appellant was subject to a valid arrest based on an active arrest warrant. Moreover, sufficient probable cause existed to warrant custodial detention in connection with the disappearance of the child.

3. Consent to Search

We next address whether appellant gave consent to have his vehicle searched. One of the established exceptions to the warrant and probable cause requirements of the Fourth Amendment is a search conducted pursuant to consent. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To show valid consent, the consent must “not be coerced by explicit or implicit means, by implied threat, or covert force.” Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000) (quoting Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041). If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we will not disturb that finding. Id.

The record shows that prior to appellant’s consent to the search of his vehicle, only two officers were present and appellant was advised of his Miranda rights. Appellant was subject to an investigative detention only and not yet under custodial arrest. He unequivocally consented to the search by telling the officer in Spanish to go ahead and check it out. He even demonstrated his voluntariness by assisting the officers in unlocking the trunk. We find no evidence in the record showing any force, threat, coercion, or claim of authority. The State bore the burden of proving the voluntariness of consent and that burden was met. See State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App.1997).

Because the officers did not exceed the scope of their detention of appellant prior to arrest, we conclude appellant voluntarily and freely consented to the search. Accordingly, we hold the trial did not err in denying appellant’s motion to suppress the items found in his car. We overrule appellant’s first point of error.

C. ORAL Statements

By his second point of error, appellant contends the trial court erred in denying his motion to suppress his oral statements. Specifically, appellant asserts the statements were obtained in violation of his constitutional rights and were the product of a warrantless arrest.

A defendant may waive his Miranda rights provided the waiver is made voluntarily, knowingly, and intelligently. Ashcraft v. State, 934 S.W.2d 727, 737 (Tex.App.-Corpus Christi 1996, pet. ref'd) (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). Only if the totality of the circumstances surrounding the interrogation reveal both an uneoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived. Id.

Appellant was advised once in Spanish, three or more times in English, and twice in writing of his Miranda rights. Consequently, he verbally and expressly waived his right to be silent and have an attorney present. The trial court determined that appellant, a thirty-five-year-old adult, had adequate command of the English language and a sufficient level of education. No evidence of abuse or coercion is contained in the record. The record shows that the officers ensured the appellant a satisfactory comfort level. He was provided adequate food, breaks, and clothing. Two separate third parties were also permitted to speak with appellant, alone, while in custody at the police station.

When appellant agreed to a polygraph examination and requested an attorney, the officers complied and made arrangements for one to be appointed. However, appellant of his own free will refused the polygraph and attorney representation.

Appellant was arrested and held on an active warrant. The custodial detention of appellant in connection with the disappearance of the missing child was valid. We conclude appellant knowingly, intelligently, and voluntarily waived his Miranda rights. We hold the trial court did not err in denying appellant’s motion to suppress his oral statements. We overrule appellant’s second point of error.

D. Media Exclusion Request

By his third point of error, appellant contends the trial court erred in denying his request to exclude the media at his suppression hearing. A ruling on a motion based on pretrial publicity is reviewed for abuse of discretion. See Lopez v. State, 628 S.W.2d 77, 81 (Tex.Crim.App.1982).

The Sixth Amendment provides, in pertinent part, “the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. Art. I; see Tex. Const, art. I, § 10 (providing that the accused shall have a speedy public trial by an impartial jury). Open trials have played an important role in the administration of justice and have been deeply rooted in our nation’s history even before separation from England. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed. Id. The sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Id. The requirement of a public trial is for the benefit of the accused. Waller, 467 U.S. at 46, 104 S.Ct. 2210. The public is able to see that the accused is fairly dealt with and not unjustly condemned. Id. The presence of spectators also ensures the accused is keenly represented and his triers are focused on their responsibility. See id. Lastly, witnesses are discouraged from committing perjury. Id. at 47, 104 S.Ct. 2210.

The media is an extension of the public body. The press and public have rights afforded them under the First Amendment to attend public hearings and view public documents. Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). But vital as it is to protect freedom of the press, especially in reporting about the criminal justice system, the rights of the press may collide with the criminal defendant’s equally significant right to a fair trial. United States v. Brown, 250 F.3d 907, 915 (5th Cir.2001). The central aim of a criminal proceeding is to ensure that the accused is tried fairly and impartially. See id.; Tex. Const, art. I, § 10. Circumstances do arise where closed proceedings are warranted, but the closures must be rare and only for cause shown that outweighs the value of openness. Press-Enterprise, 464 U.S. at 509, 104 S.Ct. 819.

Suppression hearings often are as important as the trial itself. Waller, 467 U.S. at 46, 104 S.Ct. 2210. The need for an open proceeding is particularly strong because a challenge to the seizure of evidence, just as the case at bar, frequently attacks the conduct of police and the prosecutor. See id. at 47, 104 S.Ct. 2210. The presumption of an open proceeding may be overcome, though, only by an overriding interest based on articulated findings that closure is essential and is narrowly tailored to serve that interest. See Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819.

Appellant cites the Waller case for the applicable factors to determine if closing a suppression hearing is necessary. The Waller test requires the following: (1) the party seeking to close a court proceeding must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure. See Waller, 467 U.S. at 46, 104 S.Ct. 2210.

We note that the Waller case has been distinguished. See United States v. Osborne, 68 F.3d 94 (5th Cir.1995). In Osborne, the Fifth Circuit concluded that Waller applies only to full closure of proceedings, not partial closures. See id. at 98. The partial closing of court proceedings does not raise the same constitutional concerns as a total closure, because an audience remains to ensure the fairness of the proceedings. Id. The Fifth Circuit adopted the less-stringent test advanced by the Second, Eighth, Ninth, Tenth, and Eleventh Circuit Courts which requires the party seeking a partial closure to show only a “substantial reason.” Id. at 98-99. All else remains constant in the Waller test; substantial reason only substitutes the “overriding interest” standard of the first factor. See Woods v. Kuhlmann, 977 F.2d 74, 76-78 (2nd Cir.1992).

To determine what constitutes a substantial reason, factors such as the age of the witness, the nature of an alleged offense, and the potential for harm to the witness should be weighed. United States v. Farmer, 32 F.3d 369, 371 (8th Cir.1994); United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.1992); see Woods, 977 F.2d at 77 (determining substantial reason arises when it is for protection of witness who claims to be frightened as result of perceived threats); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.1989); Douglas v. Wainwright, 739 F.2d 531 (11th Cir.1984).

In the instant case, appellant asserts the reason for excluding the media during his testimony was to avoid having his testimony appear on television or in the newspaper which could prejudice and taint the jury pool, thus denying him an impartial trial. Appellant argued at the suppression hearing that his testimony was primarily for the court, and the broadcasting interfered with his ability to testify.

Although jury pool tainting is a valid concern, appellant’s argument does not constitute a substantial reason for partially closing the proceeding. The United States Supreme Court acknowledges that one of the reasons most advanced for closing a trial — avoiding tainting the jury by pretrial publicity — is largely attenuated where the jurors have been empaneled and instructed not to discuss the case or observe press accounts of the matter by any means. See Waller, 467 U.S. at 47 n. 6, 104 S.Ct. 2210.

The record reflects that before the suppression hearing, the venire was sworn and specifically instructed not to discuss the case or read or view press materials about the case. Instructions of the court are presumed to be obeyed unless there is something in the record to rebut the presumption. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987) (setting out jury presumed to follow instruction to disregard evidence); Lopez v. State, 664 S.W.2d 815, 817 (Tex.App.-Corpus Christi 1984, no pet.) (providing jury presumed to obey instruction to disregard improper testimony). Furthermore, the trial court advised appellant that he could voir dire the venire to determine whether any potential juror had disregarded the court’s instructions.

Because appellant was concerned with the pressures of having microphones and cameras present, the court informed him that he would be treated fairly in the courtroom and that any sense of nervousness would be taken into consideration. Appellant advanced a concern not unlike that shared by those facing similar allegations. However, he failed to distinguish his concern, given the safeguards in place at the time to ensure he received a fair and impartial trial.

Because appellant did not advance a substantial reason that was likely to be prejudiced, it is not necessary to address the remaining factors of the Waller test. We hold the trial court did not abuse its discretion in denying appellant’s request for a closed hearing on his motion to suppress. Appellant’s third point of error is overruled.

The judgment of the trial court is affirmed.

      . See Tex. Pen.Code Ann. § 19.03(a)(8) (Vernon 2004).

      . The handheld receiver to the telephone, the mother’s wallet, the child’s shoes, and some documents were the items reported missing.

      . See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The telephone receiver was in the glove compartment, the child’s documents were under the front seat, and a plastic bag with pictures of the mother and child were found under the hood.

      . Appellant does not cite to any evidence in the record showing that the venirepersons disregarded the court's instruction or were tainted in any manner.

      . After appellant testified at the suppression hearing, the trial court commented on the record that appellant had "good control of the questions that were asked of him” and "seemed to follow a flow.” He also said appellant "knew what he wanted to say and said it.”


source: Caselaw Access Project

author: Opinion by Justice LANG.

license: Public Domain

text:
    FIRST TRUST CORPORATION TTEE FBO, Thomas Allen Moon; First Trust Corporation TTEE FBO, Jeanne R. Moon; First Trust Corporation TTEE FBO, William D. Moon; First Trust Corporation TTEE FBO, Betsy E. Moon; William D. Moon., Appellants, v. W.R. EDWARDS, Appellee.
    No. 05-04-00090-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 23, 2005.
    Rehearing Overruled Oct. 10, 2005.

      Thomas Allen Moon, Dallas, for Appellants.
    Derek Wesley Anderson, Marshall M. Searcy, Kelly, Hart & Hallman, P.C., Fort Worth, for Appellee.
    Before Justices WRIGHT, MOSELEY and LANG.
   OPINION

Opinion by Justice LANG.

Appellant, First Trust, claims that the trial court erred in granting appellee Edwards’s motion for judgment made after First Trust, the plaintiff below, rested its case in chief. The motion was based upon Edwards’s defense that he had been released from First Trust’s claims.

The facts giving rise to First Trust’s claims and Edwards’s release defense are intricate. However, First Trust’s suit against Edwards was for breach of a commercial financing agreement. First Trust acquired the rights in the commercial financing agreement from a company named Medifund Financial Corporation (MFC), the party that originally contracted with Edwards. Edwards claims that, prior to First Trust acquiring its rights, he was released by MFC’s shareholder and officer, Lionel Smith.

First Trust asserts two issues: (1) that the plain language of the Settlement Agreement, which Edwards raises as a defense, does not, as a matter of law, release Edwards from his obligation to pay MFC, or its assignee First Trust; and (2) that there is no evidence establishing that MFC, First Trust’s assignor, authorized anyone to grant a release of its claims against Edwards.

For the reasons set forth below, we conclude that, on this record, as to the first issue, the settlement agreement in question does not, as a matter of law, release and discharge Edwards from the claims of MFC on which First Trust brings suit. We also conclude, as to the second issue, that there is no evidence establishing that MFC authorized anyone to grant a release of its claims against Edwards. First Trust’s issues are decided in its favor.

Edwards brings one cross point arguing for affirmance of the judgment on the premise that First Trust failed to present any evidence, in its case in chief, that MFC performed its contractual obligation to Edwards under the agreement and that Edwards breached his obligations. We decide that point against Edwards. Accordingly, the trial court’s judgment is reversed and the case is remanded to the trial court for further proceedings.

I. Factual and Procedural Background

In its case in chief, First Trust presented evidence that it foreclosured its security interest in MFC assets. As a result of the foreclosure, First Trust claims it succeeded to MFC’s rights against Edwards in a commercial financing agreement between MFC and Edwards. First Trust sought damages from Edwards for the alleged breach of that agreement. At trial, Edwards made an oral motion for judgment after First Trust rested. That motion was based solely upon his defense that First Trust’s claim, which it acquired from MFC, was previously released. According to Edwards, the purported release was included in a settlement agreement purportedly entered into by Edwards and MFC, through MFC’s officer and shareholder, Lionel Smith. Edwards asserted that the settlement agreement was read into the record in a Dallas bankruptcy court proceeding respecting a bankruptcy debtor, W. Scott Blessing, M.D., P.A. That bankruptcy debtor is not before the trial court below or this court. The bankruptcy proceeding is pertinent only because that is where the settlement agreement was made.

There is no dispute between those before us that a settlement agreement, read into the bankruptcy court record on August 30, 2000, disposed of numerous claims between several parties whose transactions were intertwined with the bankruptcy debtor. The particular dispute before us is respecting Edwards’s assertion that the bankruptcy court agreement also discharged the claim of MFC sued upon by First Trust in the trial court below. At the time the motion for judgment was made by Edwards to the trial court, the parties argued their respective positions, the trial court took the matter under advisement, and, the next day, granted the motion. The written order of the trial court granting the motion does not state the basis for the ruling.

II. Standard of Review

In considering whether a trial court erred in granting a motion for judgment in a non-jury case, we conduct both a legal and factual sufficiency review. Hatch v. Williams, 110 S.W.3d 516, 521 (Tex.App.-Waco 2003, no pet.) (“[bjecause the judge in a bench trial is the arbiter of factual and legal issues, an appellate court must presume that the court ruled on the sufficiency of the evidence. Thus, the court’s factual rulings will stand unless there is legally or factually insufficient evidence to support them.”); Qantel Business Sys. Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex.1988) (noting that on a motion for judgment in a non-jury case, the trial judge has the power to rule on the legal and factual sufficiency of the evidence). However, we review questions of law de novo. Hatch, 110 S.W.3d at 521.

We can find the evidence legally insufficient if: (1) there is a complete lack of evidence for the finding; (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence; (3) there is no more than a scintilla of evidence to support the finding; or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

III. Analysis

In order to determine whether there was insufficient evidence to support the trial court’s ruling that Edwards’s defense of release was proved, we must determine whether, as a matter of law, the bankruptcy court settlement agreement discharged MFC’s claims against Edwards. In order to do so, we must construe the language of the release as it was read into the bankruptcy court record. There is no claim that the language is ambiguous, so the general rule is that a trial court must interpret the meaning of the language and ascertain the true intention of the parties from the language printed within the “four corners” of the agreement. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). “To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Id. In construing the language, a court may consider evidence of the facts and circumstances surrounding the execution of the agreement. Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 167 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (“A release will be construed in light of the facts and circumstances surrounding its execution.”). Since the construction of an unambiguous agreement is a matter of law, we examine the trial court’s ruling de novo. Coker, 650 S.W.2d at 393 (“If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law.”).

The challenge in this case is to interpret the words dictated into the bankruptcy court record by the lawyers for the “parties.” On August 30, 2000, before the United States Bankruptcy Court in Dallas, Edwards, Smith, W. Scott Blessing, M.D., P.A., W. Scott Blessing, M.D., and Lisa Blessing and others appeared, individually, or by counsel, to read into the record settlements in a complicated set of transactions and lawsuits. Smith’s counsel took the lead. On the record, he described the terms as they related to several parties, including the Blessings, who were involved in bankruptcy proceedings, and others who were involved in related litigation, such as Smith and Edwards. Smith’s counsel described in detail the parameters of the settlement agreement which included substantial standard release language.

A. Pertinent Release Language

The language in the bankruptcy court settlement agreement, which Edwards asserts released him of MFC’s claims, is a total of eleven lines in a thirty-page reporter’s record for that hearing. These discrete eleven lines, in the context of the entire settlement agreement between Edwards and Smith, pertain to an adversary proceeding in the bankruptcy court, a Dallas County District Court suit, and general release of claims. The pertinent provisions of this settlement agreement are set out below, including the provision pointed to by Edwards as being dispositive which is “highlighted” in bold print:

Specifically as relating to the state cause of action, Your Honor, and that is Cause Number DV99-10071, styled W.R. Edwards, Jr., versus Lionel Smith, and it’s pending the 162nd Judicial District Court of Dallas County, Texas, and that’s what the following relates to.
W. Rowland Edwards, Jr., and Lionel Smith have reached a settlement of cause number DV-10071, styled W.R. Edwards, Jr., versus Lionel Smith pending in the District Court of Dallas County, Texas, 162nd Judicial District, hereinafter referred to as lawsuit — state lawsuit.
It is the intent of the parties that the reading of this agreement into the record of the bankruptcy court will have the same force and effect as if read into the record of the state court lawsuit. In addition to the mutual releases that follow, each party agrees to release the other from any claim or right to assert a claim against the other relating in any way to any claim by Medifund Management Corporation or Medifund Financial Corporation, collectively Medifund, relating to any payment due or claimed to be due by Edwards to Medifund, if any. (emphasis added).
Each party further acknowledges that he has not entered into a settlement or a release with Medifund relating to any amount due or claimed to be due by Edwards to Medifund, if any. Nothing herein shall be construed to release any claim which any party may have against Medifund and any recovery against Medifund shall be the recovery solely of the party obtaining the same.

The settlement agreement continues with standard global release language discharging any claims by Edwards against Smith, including claims in the Dallas County suit. That language will not be recited. Because it is Smith’s release of Edwards which is pertinent here, that language is set forth below:

Lionel Smith for himself, his heirs, administrators, executors, agents, servants, employees, attorneys, successors and assigns, and anyone else claiming by, through or under him does hereby release and forever discharge Edwards, his heirs, administrators, executors, agents, servants, employees, attorneys, successors and assigns, subrogees any and all other persons or entities in privity Edwards from any and all claims, liabilities suits, damages, judgments, causes of action or obligations of whatsoever nature, kind or character, whether at law or in equity, whether existing or arising under the laws of the State of Texas, United States of America, or any other state or other political subdivision, whether now known or unknown, whether now existing or that may exist hereafter, whether matured or unmatured, including but not limited to all claims arising which might arise directly or indirectly out of the occurrences which form the basis of the state court lawsuit, whether asserted therein or not.
This release is intended to be global and to cover all periods of time through and including the date this agreement is read into the record of the bankruptcy court, the state court, and any later date that the parties may further document this agreement, if any.
And two additional items which relate to both matters, both suits. If the parties mutually agree to further reduce them settlement to a more formalized settlement agreement document, they may do so. But in doing so, it is agreed that they do not intend to vary the terms of the agreement set forth herein.
Item two, the parties further agree that any provision of a formal settlement agreement which they cannot agree upon will not affect the forgoing agreements, and that any dispute that cannot be resolved will result in the provisions in dispute not to be included in the agreement.
And that’s the sum total of what we worked out, Your Honor. And I guess I would start with getting confirmation from my co-counsel that I have correctly read into the record our agreement.

Then, the record reflects a discussion between the Bankruptcy Judge and counsel which appears to clarify details and is followed by assent from the parties to the terms of the agreement:

COURT: Ms. Gates? (Counsel for Edwards)
GATES: Yes, Your Honor.
Mr. Woolley (Counsel for Smith) has correctly read into the record the agreement that we have hammered out. What he’s read, though, is intended to be sort of a — a—a summary of what we represent our agreement to be. We’re going to do formalized settlement documents to memorialize the agreement.
And to the extent that there may be any little variations on the mutual release language, we’re going to clean that up in the settlement documents. But, yes, we do have an agreement.
COURT: It’s my understanding from the last point — it’s my understanding from the last point that any written agreements cannot vary the terms that have been placed in the record, and if there’s any dispute, the terms of the record will govern.
GATES: That’s correct, Your Honor.
COURT: Okay.
WOOLLEY: And, Your Honor, I guess as a formality, we would ask the parties to confirm starting with Mr. Edwards.
COURT: Mr. Edwards, do you agree to the settlement?
EDWARDS: Yes, sir.
COURT: Thank you. Ms. Blessing?
BLESSING: Yes, sir.
COURT: Mr. Smith?
SMITH: Yes, sir.
COURT: Thank you.
WOOLLEY: And again on behalf of Dr. Blessing and Blessing, P.A., I think Ms. Blessing speaks also; is that correct?
BLESSING: Yes, sir.
COURT: Okay. Thank you. The Court will accept the terms of the settlement that have been read into the record and agreed to by the parties and their counsel. By accepting the terms into the record, the Court will make them binding on the parties and enforceable in federal court.
COURT: The Court understands that the parties intend to actually draft and execute written settlement papers, but it’s clarified in the record, this agreement placed on the record today is binding. If you are unable to reach a written agreement or if the written agreement varies with the terms that were placed in the record today, the record will govern any enforcement issues.

Before the parties retired, the court requested clarification of how the agreements affected Medifund Management Corporation’s rights since it was in a Chapter 7 bankruptcy. The discussion was as follows:

COURT: Okay. Thank you. One other question and bankruptcy matter, and that would be, I think on point number two, the releases regarding — that pertained to Medifund. There was some discussion about a Medifund bankruptcy, and I never did have the record develop what the status of that was. Is there anything in that provision of the settlement that requires any presentation in the Medifund case?
GATES: Your Honor, I suspect, as a practical matter — well, as a matter of procedure, there is no requirement.
COURT: Thank you.
GATES: We may want to do it just so that the record is — complete. But Medifund Management Company— Corporation is the entity that is in bankruptcy right now.
COURT: Okay.
GATES: And Milo Segner is the Chapter 7—
HERSH: Seven.
GATES: — trustee.
COURT: Okay.
GATES: We will, as a courtesy to him, at least to let him know that the releases that we’re affecting here are, to the extent that there’s any ownership interest, that Mr. Smith or Dr. Blessing may have with respect to either entity as it relates to Mr. Edwards.

Counsel for Edwards continued the discussion before the court to assure the record was clear and the following transpired:

GATES: Your Honor, I do want to — the record to reflect to the extent that Mr. Smith or Dr. Blessing may hold ownership interest in either Medi-fund Financial Corporation or Med-ifund Management, Inc., the latter of which is in Chapter 7, and that ownership interest allows Mr. Smith to — or Dr. Blessing to affect the outcome with respect to any claim that Medifund would have against Mr. Edwards, that we expected that this settlement agreement would have the effect — full force and effect to the — I guess, to the extent that it may and — as to those two entities, (emphasis added).
Now, I’ve said that. I realize that the Chapter 7 trustee in Medifund Management is the person who owns the — the company at this point for all intents and purposes, but however that would play out, obviously, we would want to present this settlement agreement as part of the resolution of claims that could be asserted against Mr. Edwards, (emphasis added).

Prompted by the description from Edward’s counsel, Mr. Woolley, Smith’s counsel, took issue with those comments and the following transpired between counsel and the court:

WOOLLEY: Well, on that point, Your Honor, I think our agreement as we read it in there, I don’t understand or believe that the intent is to try to affect what the corporations themselves may do or not do. (emphasis added).
I think that’s — our leases [sic] deal with individuals to individuals, and frankly, I don’t know enough about the Medifund bankruptcy or this other company to know what, if anything, Dr. Blessing or Mr. Smith could do or not do. (emphasis added).
But certainly, we’re not trying to impair the company’s ability to sue Mr. Edwards or Mr. Edwards to sue them except insofar as the claims — Mr. Edwards isn’t going to go after Mr. Smith, Mr. Smith isn’t going to go after Mr. Edwards and vice versa with the Blessings, (emphasis added).
COURT: And the Chapter 7 debtors and Medifund Management Company, are the parties agreeing that the provision — I think it’s point number two, of the releases that provide to Medi-fund are without prejudice to any rights of the Chapter 7 bankruptcy estate or Medifund Management Company?
GATES: Right. And we understand that we can’t release Chapter 7 estate.
COURT: Okay. All right. Good. Thank you. And the record, then, will reflect the parties do understand their releases, with regard to Medifund matters doesn’t affect the administration of a Chapter 7 bankruptcy estate of Medifund Management Company, Inc., and as a result, should not require any approval by that bankruptcy estate, (emphasis added).
GATES: That’s right, Your Honor.
COURT: Okay.
GATES: And again, just while it is as to the individual as to — the agreement is as to the individual of Mr. Smith and Dr. Blessing, it is intended to — and the purpose for doing this was to reach any claim that — that they either would have as it relates to any ownership interest that either would have in those entities, Medi-fund Management, Inc., or Medi-fund Financial. Otherwise — (emphasis added).
COURT: I don’t know what that means.
GATES: Well, Medifund Financial is not in bankruptcy. So there is that entity that’s still out there for which one of—
COURT: I’m only concerned about the bankruptcy estate.
GATES: That’s right. So that’s where — and so we know that to the extent that we’re not — to the extent that Medifund Management Corporation is in bankruptcy and the Chapter 7 trustee is in place, we can’t affect a release of — as it relates to the Chapter 7 trustee.
COURT: Right.
GATES: We know that.
COURT: Okay. All right. Thank you. I think then the reservation the Court’s put on the record protects that bankruptcy estate. And it also means the parties don’t have to go take this agreement to that. The Court will see this case and seek approval.

It must be noted now, before we proceed further, that although the parties repeatedly stated the agreement read into the record would be “formalized” in written documents, this record contains no such documents. However, the Bankruptcy Judge observed that should the parties not execute formal, written agreements, the bankruptcy court record would “govern any enforcement issues.” According to the record, the parties voiced no objection to this statement from the Bankruptcy Judge.

In addition to the language read into the Bankruptcy Court record, First Trust urges us to consider testimony from Mr. Woolley in the trial court below where he said he did not represent MFC at the bankruptcy court hearing when the settlement agreement was read into the record. Also, we are reminded that Mr. Woolley said, in the above quoted record before the bankruptcy court, that he was unfamiliar with MFC. Rather, Woolley stated he represented only the interests of the Blessing bankruptcy entities and Mr. Smith.

B. Interpretation of Release Language

i Scope of Language to be Interpreted

First Trust contends no release by MFC appears anywhere in the record of the bankruptcy court respecting the settlement. Of course, Edwards argues that the pertinent release language, which was highlighted in the first excerpt above, reflects a release of MFC’s claims. Also, Edwards argues that, under the law, we may not interpret the release by considering the discussion with the Bankruptcy Judge after Smith and Edwards indicated their respective assents to the terms. We disagree with Edwards’s positions.

Our consideration must be of the entire agreement, certainly not just the discrete paragraph identifying Smith’s claims, “if any,” respecting MFC’s claims against Edwards. Also, we are not limited, as argued by Edwards, to a consideration of the bankruptcy court record up to and including the announced assent of Edwards and Smith. Such a barrier would be an undue curtailment of our obligation to interpret the entire agreement. This release is not a standard release transaction where drafts of the documentation would likely be traded back and forth, scrutinized by counsel for the parties with the opportunity to comment and seek revision, and then offered to the parties to be executed. Rather, according to the record, at the time the releases were read into the bankruptcy court record, the parties had been in trial for at least three days and the terms of the releases were negotiated during trial and at recesses. So, it is not unreasonable for the parties and the Bankruptcy Judge, who was asked to approve the settlement and pronounce it to be enforceable, to have discussions on the record to clarify and hone the terms.

ii Analysis of Agreement Language

Our first step in the comprehensive review of the language is to analyze the standard, general release language. The standard, general release language is virtually identical for both Smith and Edwards. The language of Smith’s release of Edwards expressly provides that “Lionel Smith for himself, his heirs, administrators, executors, agents, servants, employees, attorneys, successors and assigns, and anyone claiming, by through or under him does hereby release and forever discharge Edwards ...” Although the claims released in this standard, general release language include all claims of any kind, and specifically, the Dallas County suit, that language does not expressly refer to claims by MFC against Edwards.

Second, we consider the reference to MFC in the discrete provision asserted by Edwards. That part of the release is set out in the early language of the agreement and prior to the recitation of standard, general release language. This discrete portion is described as “mutual” in the respect that “each party” releases “the other” from “any claim or right to assert a claim against the other in any way relating to any claim by Medifund Management Corporation or Medifund Financial Corporation, collectively Medifund, relating to any payment due or claimed to be due by Edwards to Medifund, if any.”

No mention is made anywhere in the record of MFC releasing either Edwards or Smith. The words merely identify a release of “the parties,” who are Smith and Edwards, by “the parties,” again, who are Smith and Edwards, “relating to any payment due or claimed to be due by Edwards to Medifund, if any.” Nowhere in the agreement does Medifund Financial Corporation appear as a grantor of a release, nor does any language describe anyone granting a release for, or on behalf of, MFC.

It is axiomatic that “[a] release does not bind one who is not a party to it.” Anderson Furniture Company v. Roden, 255 S.W.2d 345, 352 (Tex.Civ.App.-Amarillo 1952, writ ref'd n.r.e.). Further, a person is not bound by a release executed by a third party unless he authorized the third party to act for him. City of Amarillo v. Hill, 278 S.W.2d 332, 334 (Tex.Civ.App.-Amarillo 1954, no writ); Dwyer v. Sabine Mining Co., 890 S.W.2d 140, 143 (Tex.App.-Texarkana, 1994, writ denied). MFC is not a party to the release, nor is there any authorization by MFC in the record to release its rights or claims.

The release must be interpreted according to its express terms. Accordingly, we conclude the clear intention expressed in this release is to comprehensively dispose of all claims between “the parties,” i.e., Smith and Edwards.

C. Edwards Asserts that First Trust Attacks Smith’s Authority

As additional support for his position, Edwards asserts that First Trust’s argument on the limits of the release is actually a challenge to the authority of Smith to grant the release. On that premise, Edwards says First Trust has the burden to plead and prove matters of avoidance such as lack of authority. However, since First Trust did not plead or prove that position, Edwards claims that defense is waived. As support, Edwards cites us to Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 297 (1960) and Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990).

We cannot agree that the legal propositions described in Womble and Williams are applicable. In Womble, the plaintiff sought to set aside a release on the grounds that such a release was not based upon a valid consideration and had been procured by fraud. Womble, 331 S.W.2d at 295. Similarly, in Williams, the plaintiff sought to set aside a release on the grounds of mutual mistake. Williams, 789 S.W.2d at 264. Both Womble and Williams involved a party seeking to avoid or set aside a release which otherwise, by its terms, purported to effect a release. That is markedly distinguishable from the facts before us.

Here, First Trust simply argued that the release in the settlement agreement, by its language, did not discharge MFC’s claims against Edwards. The use of the settlement agreement by Edwards as a bar to First Trust’s claims puts in focus the meaning of the language of the release, not the authority of the executing parties. The question here is: does the release discharge a corporate, MFC claim against Edwards? We have concluded that the release does not do so. Accordingly, First Trust was not required to plead lack of authority or related affirmative defenses.

In a slightly different vein, Edwards asserts that, even if First Trust did not waive its position, the record in the trial court below includes evidence that Smith, as the sole shareholder and president of MFC, effected a release. We disagree with Edwards.

Once again, the issue here is not one of authority. It is a matter of the scope and meaning of the language of the release. The language of the discrete provision urged by Edwards is not a release of MFC’s claims as an act of MFC. On this record, MFC is simply not a party to the settlement agreement or the discrete release language and cannot be bound by the language of the release. See Dwyer, 890 S.W.2d at 143. Furthermore, the status of Smith, asserted to be the sole shareholder and officer of MFC, is not set out in the language of the release, nor does that status relate to the interpretation of the language of the release itself which the parties agree is unambiguous. To inject into the language of the release Smith’s shareholder and officer status of MFC, as Edwards would have us do, would cause us to improperly vary the clear and unambiguous language that reflects the mutual releases of individuals. It would cause us to rely upon evidence which is extrinsic to the language within the “four corners” of the release. See Coker, 650 S.W.2d at 393. We will not do that when the language is unambiguous, as in this case.

D. Edwards Asserts MFC’s Charter Forfeiture Vests Smith with Power to Release

Next, we address another argument Edwards made to the trial court asserting that Smith was empowered and authorized individually to effect a release of MFC’s claims against Edwards. Specifically, Edwards asserts that since MFC had forfeited its corporate charter on March 9, 1999, and the charter was not reinstated until after the release was made on the bankruptcy court record, Smith was vested with the power, individually, to discharge MFC’s claims, and he did so.

The record reflects that the forfeiture of MFC’s corporate charter was ordered by the Texas Secretary of State, in accordance with Section 171.309 of the Tax Code, because of nonpayment of fees and failure to file its franchise tax report. See Tex. Tax Code Ann. § 171.309 (Vernon 2002 & Supp.2004-05). Based upon this forfeiture, Edwards argued to the trial court that Smith’s participation in the settlement agreement effected a release of MFC’s claims since: (1) “the only person that’s left under the provisions of the Texas Business Corporation Act who has the obligation to wind down its operations” is Smith, (2) “there is no Medifund Financial other than through Mr. Smith,” and (3) Smith was MFC’s “alter ego.” We cannot agree with Edwards’s position on these arguments.

Forfeiture of a Texas corporation’s charter, by order of the Texas Secretary of State, causes an involuntary dissolution of the corporation. Tex. Tax Code Ann. § 171.309; See Tex. Bus. CoRP. Act Ann. art. 7.01 (Vernon 2003). However, a dissolved corporation “shall continue its corporate existence for a period of three years from the date of dissolution, for the following purposes: ... (3) holding title to and liquidating any properties or assets that remained in the dissolved corporation at the time of, or are collected by the dissolved corporation, after, dissolution, and applying or distributing those properties or assets, or the proceeds thereof ...” Tex. Bus. CoRP. Act Ann. art. 7.12A(3) (Vernon 2003 & Supp.2004-05). Accordingly, forfeiture of a corporation’s charter causes an involuntary dissolution, yet it continues to exist for three years for the limited purposes delineated in the statute. It is critical to note that the corporation continues to hold title to “any properties or assets.” Additionally, distribution of assets is required to proceed pursuant to Art. 6.04A(3). That section prescribes that only after corporate debts are paid, “the corporation shall” distribute the assets to the shareholders. Tex. Bus. CoRP. Act Ann. art 6.04A(3) (Vernon Supp.2004-005). “As a result, a corporation whose charter is forfeited under the Tax Code is considered to be involuntarily dissolved pursuant to Article 7.12 and the directors will have the duties and obligations provided for under Article 7.12, and the corporation may engage in the activities provided under that section.” Tex. Bus. Corp. Act. Ann. art 7.12 cmt.; In re ABZ Insurance Sens., Inc., 245 B.R. 255, 261 (Bankr.N.D.Tex.2000) (effect of charter forfeiture causes involuntary dissolution and continued existence with limited rights for three years under Art. 7.12).

The clear provisions of the statutes do not support Edwards’s contention during oral argument before us that once MFC forfeited its charter, there was no Medi-fund other than through Mr. Smith. Rather, according to Art. 7.12B(3), the corporation continues to exist for limited purposes set out in the statute. In fact, the dissolved corporation’s assets do not become those of its shareholders, but remain vested in the corporation. Article 7.12B(3), in conjunction with Art. 6.04A(3), requires that creditors be paid before any assets are distributed to shareholders. Accordingly, the corporate entity and form continues and cannot be disregarded by the trial court based solely upon forfeiture of its corporate charter. We have not been cited to any portion of the record or any authority which would support Edwards’s assertions to the contrary.

We conclude that First Trust has met its burden to show the facts are legally insufficient to support Edwards’s motion for judgment. First Trust’s two points on appeal are decided in its favor.

E. Edwards Asserts First Trust’s Lack of Proof on Claims Supports Granting Motion for Judgment

Now, we address Edwards’s cross point that the trial court’s grant of his motion for judgment must be upheld since First Trust failed to present any evidence in support of its claim that MFC performed its obligations under its agreement with Edwards and that Edwards breached that agreement. We cannot agree with Edwards’s position.

The record reflects Edwards’s motion was based solely upon the defense of release. The general rule is that, in a nonjury trial, where no findings of fact or conclusions of law are requested or provided by the court, the court’s judgment will be upheld if there is any factual basis to do so supported by the facts and the pleadings. In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984). However, where the judgment is rendered based upon a motion for judgment narrowly focused upon only one issue, a reviewing court cannot sustain the granting of that motion for judgment on some premise not asserted. See Prather v. McNally, 757 S.W.2d 124, 126 (Tex.App.-Dallas 1988, no writ) (“[Djirected verdict should be affirmed if it is supported by any ground asserted in the motion, even though the rationale assigned by the trial court for granting the motion was erroneous.”); see also Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991) (“When the trial court states no reason why judgment n.o.v. was granted, and the motion for judgment n.o.v. presents multiple grounds upon which judgment n.o.v. should be granted, the appellant has the burden of showing that the judgment cannot be sustained on any of the grounds stated in the motion.”). We decide this point against Edwards.

IV. Conclusion

We conclude that the unambiguous language of the release given by Smith to Edwards does not effect a discharge of MFC’s corporate claims against Edwards. As a result, there is no evidence in the record to support the trial court’s judgment rendered on Edwards’s motion for judgment. The trial court’s judgment is reversed and the case is remanded for a new trial consistent with this opinion.

      . We do not quote or discuss language and terms recited in the court record up to this point in the hearing since it relates to parties other than Smith and Edwards.


author: STEVE McKEITHEN, Chief Justice.

text:
    Kenneth Keith ODNEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 09-05-114 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 2, 2005.
    Decided Aug. 24, 2005.

      Jack Lawrence, Beaumont, for appellant.
    Tom Maness, Criminal Dist. Atty., Wayln G. Thompson, Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J, GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Kenneth Keith Odneal appeals the revocation of his community supervision. The trial court originally convicted Odneal of felony driving while intoxicated with an open container in the vehicle and imposed a ten-year prison sentence, then suspended the imposition of the sentence and placed Odneal on community supervision for ten years. After Odneal pleaded true to the allegations in the State’s motion to revoke, the trial court ordered Odneal to serve his entire sentence of incarceration. The five issues raised in this appeal relate to the time credited on the sentence for pre-sentence confinement, and the trial court’s failure to conduct an evidentiary hearing to determine the appropriate amount of credit. Because we find the pertinent information is available without a hearing, we hold the trial court did not err in failing to conduct a hearing. We hold the trial court properly recorded on the judgment only time actually served in jail, and that the trial court did not err in failing to reflect time spent on trusty status. However, because we find an error in the judgment regarding the dates for which the appellant is entitled to flat time credits, we reform the judgment.

Issues one through three present the equal protection argument that the appellant is entitled to have the same good conduct time credited against his maximum sentence as are other similarly situated county jail detainees who are: 1) unable to post bond while awaiting trial; 2) awaiting transfer to the state penitentiary; and 3) awaiting disposition of their cases. In support of his claims, the appellant relies upon cases such as Ex parte Harris, 946 S.W.2d 79, 80 (Tex.Crim.App.1997), which held the equal protection clause of the Fourteenth Amendment requires that an indigent inmate receiving the maximum sentence must be credited with pre-trial jail time otherwise discretionary with the trial court; Ex parte Gomez, 15 S.W.3d 103, 104 (Tex.Crim.App.2000), in which the Court of Criminal Appeals ordered the Department of Criminal Justice to ensure that the applicant be considered for good conduct credit for pre-trial time spent in a juvenile detention facility; and In re Cortez, 143 S.W.3d 265, 267-68 (Tex.App.-San Antonio 2004, orig. proceeding), where the intermediate appellate court held the trial court could not order a jail sentence to be served “day for day” because a trial court has no authority to issue a sentence that limits the operation of statutes governing good time credit. In his case, however, the appellant invokes cases limiting the trial court’s discretion in awarding credit for time served to support his claim that the trial court has a duty to award good conduct credit. Specifically, Odneal contends the trial court erred in failing to record on the judgment credit against the appellant’s ten-year sentence for “good conduct time and Trusty time” accrued during his confinement in the county jail. Odneal asks this Court to reform his sentence to reflect an additional 692 days of time credit for the 331 days he spent in the county jail during the pendency of the cause.

The fundamental difference between the nature of time served and good conduct time presents an insurmountable obstacle to the underlying premise for appellant’s argument. “Good conduct time applies only to eligibility for parole or mandatory supervision as provided by Section 508.145 or 508.147 and does not otherwise affect an inmate’s term.” Tex. Gov’t Code Ann. § 498.003(a) (Vernon 2004). The trial court was not required to credit good conduct time against the sentence because good conduct time does not reduce the sentence to be served. Unlike time served, or “flat time,” good conduct time is not a required recital for a judgment in a criminal case. See TexCode CRIM. PROC. Ann. 42.01, § 1 (Vernon Supp.2005) (“The judgment should reflect: ... 18. The date sentence is to commence and any credit for time served”). Furthermore, the trial court does not award good conduct time. An inmate’s good conduct time is awarded — and forfeited — by the Department of Criminal Justice. See Tex. Gov’t Code Ann. § 498.003(e) (Vernon 2004). The sheriff has sole discretion in evaluating the inmate’s behavior while confined in a county jail facility, but the trial court’s role in the procedure for crediting good time is limited to “directing] the sheriff to attach to the commitment papers a statement assessing the defendant’s conduct while in jail.” TexCode Ckim. Proc. Ann. 42.03, § 4 (Vernon Supp.2005). In this context, the trial court had neither the right nor the duty to award good conduct time or to assess the appellant’s conduct while in jail; therefore, the court did not abuse its discretion by failing to include in the judgment an order for time credit for good conduct.

In his fourth issue, the appellant contends the trial court erred in failing to add good conduct time to the credit for time served in the county jail and in failing to take statutorily required steps that would enable Odneal to receive good conduct time credit on his sentence. Odneal contends the trial court failed to direct the sheriff to comply with Article 42.03, § 4, and suggests that his commitment papers do not include the sheriffs assessment. The record does not support his claim that he was transferred to the Department without the required assessment, because Odneal’s commitment papers are not included in the clerk’s record and the lack of such an assessment was not raised in the trial court. Furthermore, the “Motion for New Trial” asserts Odneal’s claim for good time credit but never mentions the trial court’s failure to issue a directive to the sheriff. A complaint must be raised in the trial court as a prerequisite to presenting a complaint for appellate review. Tex. R.App. P. 33.1(a). The alleged error is not preserved.

The appellant also contends that the judgment does not properly record his “flat-time” credit for the confinement in the county jail on this cause. The appellant was arrested on October 13, 2001, the date of the offense, and was apparently-released on October 17, 2001. He was rearrested on April 1, 2003, and remained in custody until the trial court placed the appellant on community supervision on November 3, 2003. The appellant then served ten days of confinement in the county jail as a condition of community supervision. Because appellant was granted community supervision in a prosecution for driving while intoxicated, the trial court did not have the discretion to grant credit off the sentence for the time served as a condition of probation. Tex.Code Crim. Proc. Ann. 42.12, § 13(e) (Vernon Supp.2005) (“The confinement imposed shall be treated as a condition of community supervision, and in the event of a sentence of confinement upon the revocation of community supervision, the term of confinement served may not be credited toward service of such subsequent confinement.”). Although properly recorded on the community supervision judgment, the judgment entered upon revocation erroneously recites that the appellant is entitled to credit for the time served from November 4, 2003, to November 13, 2003, as a condition of DWI community supervision. The appellant was again taken into custody on December 22, 2004, and remained in custody until March 7, 2005, when the sentence commenced. Odneal contends he is entitled to credit on his sentence for the time spent in the county jail from March 7, 2005, to April 4, 2005, the date of a letter generated by the sheriffs department. The letter indicated that the appellant was still in county custody on April 4, 2005. Nevertheless, the judgment recited that the sentence commenced March 7, 2005, so there is no need for the trial court to record the same information twice in the same document. The appellant is entitled to credit for time served in the county jail from October 13, 2001, to October 17, 2001; April 1, 2004, to November 3, 2004; and December 22, 2004, to March 7, 2005, for a total of 298 days served prior to sentencing.

The fifth issue urges the trial court erred in failing to conduct an eviden-tiary hearing in which the appellant could present evidence on his motion for new trial. A revocation proceeding is not a “trial” and a rehearing of the motion would not result in the setting aside of a finding of guilt. See Ochoa v. State, 536 S.W.2d 233, 234 (Tex.Crim.App.1976); Tex.R.App. P. 21.1. The Court of Criminal Appeals has noted that while “a trial judge was not without authority to grant leave to file a motion for new trial or to grant it,” that “no rule requires the trial court to consider a motion for new trial” in a probation revocation proceeding. Ochoa, 536 S.W.2d at 234. In any event, a defendant is only entitled to a hearing on a motion for new trial if the motion and accompanying affidavits “rais[e] matters not determinable from the record, upon which the accused could be entitled to relief.” Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993). The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion, and a hearing is required if the motion and affidavits reflect that reasonable grounds exist for holding that the requested relief could be granted. See Martinez v. State, 74 S.W.3d 19, 22 (Tex.Crim.App.2002). In this case, the motion for new trial was supported by an affidavit that was not made on personal knowledge. Furthermore, the time served in the county jail was discernable from the record, and the claim for a judicial determination of good conduct credit was not a claim presenting reasonable grounds upon which relief could be granted. Under these circumstances, the trial court could reasonably deny appellant a hearing on his motion for new trial.

We reform the judgment to reflect credit for time served from October IB, 2001, to October 17, 2001; from April 1, 2004, to November 3, 2004; and from December 22, 2004, to March 7, 2005. The other issues raised in the appellant’s brief are overruled, and the judgment is affirmed as reformed.

AFFIRMED AS REFORMED.

      . Odneal may have been transferred to Department custody during the pendency of this appeal. See Tex.Code Crim. Proc. Ann. 42.09, § 4 (Vernon Supp.2005).


author: CHARLES KREGER, Justice.

text:
    Adrian Dwayne ELEBY, Appellant, v. The STATE of Texas, Appellee.
    No. 09-05-041 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted May 31, 2005.
    Decided Aug. 24, 2005.

      George S. (Steve) Hebert, Huffman, for appellant.
    Michael R. Little, Dist. Atty., Michael A. Mark, Asst. Dist. Atty., Liberty, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Adrian Dwayne Eleby pleaded guilty to aggravated robbery and was sentenced by the jury to eighty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Eleby appeals raising three issues.

In his first issue, Eleby claims the trial court erred in depriving him of a hearing on the issue of his competency to stand trial. The record reflects the trial court signed an order for the examination of Eleby but does not demonstrate a hearing was conducted or evidence was otherwise submitted to the court. The motion to have Eleby examined requested an examination to determine competency but did not assert Eleby was incompetent and contained no evidence of any incompetency. That motion, in and of itself, does not require the trial court to hold a competency inquiry. See McDaniel v. State, 98 S.W.3d 704, 711 (Tex.Crim.App.2003). As the record fails to show that any evidence of incompetency was brought to the attention of the trial court, the mere fact that the trial court ordered an examination but none was ever conducted does not violate Code of Criminal Procedure article 46.02. See id. Issue one is overruled.

Issue two contends the trial court erred by failing to admonish Eleby of the consequences of his plea. The record does not demonstrate the trial court admonished Eleby either orally or in writing. We find the trial court erred in failing to show on the record that it admonished Eleby on the range of punishment when he pleaded guilty to the charged offense. See Aguirre-Mata v. State, 125 S.W.3d 473, 473(Tex.Crim.App.2003).

Our inquiry does not end here, however. The Court of Criminal Appeals has held the error to be nonconstitutional and therefore subject to a harm analysis under Tex.R.App. P. 44.2(b). Aguirre- Mata, 125 S.W.3d at 473. To perform that analysis, “a reviewing court must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court’s failure to admonish him of the punishment range.” Burnett v. State, 88 S.W.3d 633, 638(Tex.Crim.App.2002).

During the hearing on the Motion to Disqualify the Prosecutor, Eleby was asked, “Do you realize what your minimum and maximum sentence is?” Eleby replied, “I realize that.” Further, Eleby was asked, “You understand that the last person who did the same thing that you did, that did not have a criminal record you’ve got, I offered him 45 years and got him a life sentence at trial, you understand that?” Eleby answered, “Yes, sir....”

During opening argument, the State informed the jury that the range of punishment was fifteen to ninety-nine years or life. The charge on punishment was read to the jury and it instructed “that the punishment which should be assessed against this defendant is imprisonment in the Institutional Division of the Texas Department of Criminal Justice for any term of not less than 15 years nor more than 99 years or Life.”

The record reflects no objection or protest by Eleby or defense counsel when either the State or the trial court stated the range of punishment. At no time did Eleby ask to withdraw his guilty plea. Defense counsel did not file a motion for new trial on the grounds the plea was not knowing and voluntary. See id. at 640-41. “[T]o warrant a reversal on direct appeal, the record must support an inference that appellant did not know the consequences of his plea.” Id. at 638. We find the record before this court does not establish such an inference. Accordingly, issue two is overruled.

Eleby’s final issue asserts the trial court’s denial of his Motion to Disqualify the Prosecutor deprived him of a fair trial. The prosecutor in the instant case was employed as defense counsel in two prior cases being used to. enhance the current conviction. The record reflects Eleby pleaded true to both enhancement allegations and the record of conviction was entered for each one.

Eleby argues the prosecutor’s prior representation and the knowledge he gained from that representation created a conflict of interest. At the hearing on the motion to disqualify, Eleby testified he discussed the merits of those cases with the prosecutor but the prosecutor did not represent him through the conclusion of the case. Eleby testified he did not remember disclosing any private information that was not disclosed elsewhere. He did not testify he was concerned the prosecutor would disclose any private information. The prosecutor testified there was no information learned from his brief representation of Eleby that he intended to use in the current prosecution.

While it would most certainly be the better practice to recuse in cases of this nature, the conflict is not apparent, as opposed to cases where the representation is in the same case. See Ex parte Morgan, 616 S.W.2d 625, 626 (Tex.Crim.App. 1981); Ex parte Spain, 589 S.W.2d 132, 134 (Tex.Crim.App.1979). In those cases, no specific prejudice need be shown because the conflict is apparent. Otherwise, to properly disqualify a prosecutor a defendant must prove prejudice to his rights or deprivation of his right to due process. See State ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex.Crim.App.1994). Here, the representation did not occur in the same case, and the offenses in which the prosecutor had represented Eleby were being used for enhancement. Therefore, the conflict is not apparent and prejudice must be shown. See Munguia v. State, 603 S.W.2d 876, 878-79(Tex.Crim.App.1980); Reed v. State, 503 S.W.2d 775, 776 (Tex.Crim.App.1974); Canady v. State, 100 S.W.3d 28, 31-32 (Tex.App.-Waco 2002, no pet.); Pirtle, 887 S.W.2d at 927. On the record before this Court, we find Eleby has not established the prosecutor’s failure to recuse prejudiced his rights or deprived him of his due process rights. Issue three is overruled.

The judgment of the trial court is AFFIRMED.


text:
    Jason Aaron BURKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-076 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted June 16, 2005.
    Decided Aug. 24, 2005.

      Jerald D. Crow, Darden, Fowler & Creighton, Conroe, for appellant.

      Michael A. McDougal, Dist. Atty., Gail Kikawa McConnell, Asst. Dist. Atty., Con-roe, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Jason Aaron Burkett was convicted of capital murder and sentenced to life imprisonment. See Tex. Pen.Code Ann. § 19.03(a)(7) (Vernon Supp.2005). Burkett and a co-defendant, Michael James Perry, mortally wounded Sandra Stotler with a shotgun while she was in her home. A few hours later, they lured her son, James Adam Stotler, and a Mend named Arnold Jeremy Richardson, into a secluded area where they too were killed by shotgun blasts. Burkett and Perry then stole the Stotlers’ cars. On appeal, Burkett contends he committed a mass murder, not serial murders as alleged in the indictment, and argues that several errors flow from ambiguities in the State’s pleading and the variance between the indictment and the evidence adduced at trial. We affirm.

Burkett’s first two issues contend the trial court erred in denying his motion to quash the indictment. The motion to quash was filed after the State re-indicted Burkett to add the murder of Sandra Stotler to the murder of the two young men. The motion claimed the indictment did not provide adequate notice of whether the state intended to prove Burkett acted individually or as a party. The motion also argued the murder of Sandra Stotler was alleged “merely to bring in evidence of what is an otherwise irrelevant and unproved extraneous offense,” that the State lacked probable cause to believe that Burkett committed the murder of Sandra Stotler, and that “[t]he State has not pled facts sufficient to show that the killing of the three alleged victims were part of the same scheme and course of conduct.” On appeal, Burkett argues the indictment was subject to being quashed because the State failed to clearly allege whether it was prosecuting Burkett under section 19.03(a)(7)(A) (murders committed “during the same criminal transaction”), or 19.03(a)(7)(B) (murders committed “during different criminal transactions”). If the basis of the complaint raised on appeal varies from the complaint raised in the motion to quash, the issue is not preserved for appellate review. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004); Skillern v. State, 890 S.W.2d 849, 858-59 (Tex.App.-Austin 1994, pet. ref'd) (Motion to quash for failure to allege offense occurred within the jurisdiction of the court did not preserve issue on whether indictment alleged venue in county other than county of prosecution and failed to adequately allege justification for returning indictment in that county.). Rather than argue that the State failed to specify whether the murders were committed in the same or in different criminal transactions, Burkett’s motion to quash claimed that the indictment did not explain how the murders were committed as part of the same scheme or course of conduct under section 19.03(a)(7)(B). A complaint that the State failed to provide specific notice of the particular acts that constitute the same scheme or course of conduct is distinct from a complaint that the State failed to allege whether the charged conduct occurred in the same transaction or in different transactions. The complaint articulated in the motion to quash pertains only to an offense committed under section 19.03(a)(7)(B). We hold that the appellant failed to preserve error. Points of error one and two are overruled.

Points of error three through five contend the State’s failure to specify whether the murders were committed “during the same criminal transaction” or “during different criminal transactions” rendered the indictment void for failure to allege an offense constituting capital murder. The indictment alleged Burkett and Perry committed the murder of Sandra Stotler, and that “during the same scheme and course of conduct” Burkett and Perry committed the murders of James Adam Stotler and Arnold Jeremy Richardson. Burkett argues the indictment is void because the State failed to allege the murders were committed during “different criminal transactions but pursuant to the same scheme and course of conduct.” The omission of one element of the charged offense does not render an otherwise valid indictment fatally defective. Studer v. State, 799 S.W.2d 263, 270-71 (Tex.Crim.App.1990). “[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective.” Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997). The term “same criminal transaction” in section 19.03(a)(7) “amount[s] to something less than ‘same scheme or course of conduct.’” Rios v. State, 846 S.W.2d 310, 314 (Tex.Crim.App.1992) (construing earlier version of statute). Burkett concedes Rios held the terms are mutually exclusive, but contends the State’s failure to specify whether the murders were committed in the same or in different criminal transactions rendered him unable to determine whether he was charged as a mass murderer under Penal Code section 19.03(a)(7)(A), as a serial murderer under Penal Code section 19.03(a)(7)(B), or as an ordinary murderer under Penal Code section 19.02(b)(1). We disagree. Burkett concedes all of the elements of ordinary murder were alleged in the indictment, and the only homicide offense that includes “same scheme or course of conduct” as an element is section 19.03(a)(7)(B). Assuming for the sake of argument that the omission of the allegation “different criminal transactions but pursuant to” constitutes a defect of substance in the indictment, the defect does not deprive the indictment of its effect as a charging instrument. Points of error three, four, and five are overruled.

The appellant’s final two points of error contend the evidence is insufficient to support the conviction because the offense charged was not the offense proved, and that there is a material and fatal variance between pleading and proof because the State proved the three murders were committed during the same criminal transaction. A variance exists when there is a discrepancy between the evidence presented at trial and the language in the charging instrument. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). Only a variance that is material and affects the defendant’s substantial rights will affect the sufficiency of the evidence. Id. at 257. In reviewing an alleged variance for materiality, we determine whether the indictment “ ‘informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.’ ” Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).

Before a variance may be fatal, there must first be a variance between the indictment and the evidence adduced at trial. The Court of Criminal Appeals interpreted the term “same criminal transaction” in the capital murder statute to encompass “a continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of unbroken events.” Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App. 1992). The distinction between mass murder and serial murder in 19.03(a)(7) is “the continuity of the killing.” Rios, 846 S.W.2d at 314. The evidence adduced at Burkett’s trial established a temporal and geographic discontinuity between the murder of the woman and the youths. Testimony from the investigating detective established that Sandra Stotler died in her home from a shotgun blast delivered at close range. Her body was dragged out of the house and dumped in a lake. Shane Atkinson testified that Burkett admitted to him that Burkett and Perry went to a friend’s house, that Burkett asked to use the phone and was allowed in the front door by the friend’s mother, that Perry went to the back door and then Burkett heard shots. According to Burkett’s girlfriend, Kristin Willis, at 3:30 or 4:00 p.m. on the day of the murders, Burkett arrived shirtless at the sportswear shop where she worked and had her obtain a shirt for him. When Burkett and Perry picked her up sometime after 8:00, Burkett told her he had “talked to” a friend’s mother and asked Willis to drive him to the entrance of the Stotlers’ gated subdivision. A few minutes later Burkett, Perry, and Willis intercepted Stotler and Richardson at the gate and had them follow Burkett down a rural road to a wooded area. Stotler and Richardson were lured into the woods and fatally wounded with the shotgun. The story related to Shane Atkinson by Burk-ett was that Burkett and Perry “waited for some boys” when they could not find the keys t some vehicles, that they told the boys a story about a mutual friend needing help out in the woods, that Burkett shot the victim who was Perry’s friend and that Perry shot the other victim.

Because evidence established all three murders were committed in the course of the theft of the Stotlers’ vehicles, Burkett argues the three murders were part of the same transaction. This argument makes sense when the evidence is considered as proof of capital murder with robbery as the aggravating circumstance, but the sufficiency of the evidence must be reviewed as it relates to the theory on which the State actually obtained the conviction. Furthermore, the issue is not whether there is legally sufficient evidence that the murders were committed as part of the same criminal transaction, but whether there is legally sufficient evidence that the murders were committed in different criminal transactions but pursuant to the same scheme or course of conduct. The car thefts provide the common scheme between the murders of the woman and of the youths, and the use of the same weapon to commit the three murders provides the common course of conduct, but the separate locales and the lapse of several hours between the murders provides a break in continuity of the killings. We conclude there is no variance between the allegation in the indictment and the proof offered at trial. Accordingly, points of error six and seven are overruled. We affirm the conviction.

AFFIRMED.

      . Perry was convicted of murdering Sandra Stotler in the course of committing burglary and sentenced to death. Perry v. State, 158 S.W.3d 438, 439 (Tex.Crim.App.2004, cert. filed).

      . The trial court denied Burkett's motion to quash the first indictment. At that time, defense counsel argued that the murder of Sandra Stotler would be severable because "they are not the same murder. Not the same time and place.”

      . For these final points of error, Burkett presumes we find that the indictment alleges the commission of serial murder under Penal Code section 19.03(a)(7)(B).