text:
    Danial Ray STEELS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00107-CR.
    Court of Appeals of Texas, Waco.
    July 20, 2005.

      Brad K. Cune, Bryan, for appellant.
    James M. Kuboviak, County Atty. for Brazos County, Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Danial Ray Steels was convicted by a jury on three counts of reckless driving, all charged in a single charging instrument. The court sentenced him to 30 days in jail on each count and no fíne. Steels appeals the factual sufficiency of the evidence of counts one and two. We will vacate and set aside the judgments on counts one and two.

BACKGROUND

In 2002, Steels was driving his car to the mall during his lunch break. On the way to the mall, Steels allegedly drove recklessly and became confrontational with three men in another car. The three men contacted the police, reported the incident, and met with the police across the street from the mall. As the three men were speaking with the officer, they saw Steels driving in the parking lot of the mall across the street. The three men pointed Steels out to the officer, and another officer drove over to the mall parking lot.

Steels sped away from the officer, around a corner and close to a large group of people, including infants and children. The group had just exited the mall and was stepping off the curb when Steels sped around the corner, and the adults had to pull the children back. Steels swerved down one of the parking lot lanes to avoid the group. The group flagged down the officer and said that Steels had almost hit them. Another police officer stopped Steels down the road, and he was cited for a traffic violation (no insurance), warned that a warrant would be sought for the reckless driving charges, and was allowed to go back to his workplace. Later, an arrest warrant was issued and served on Steels for reckless driving.

Steels was charged by information on counts one and two for driving a motor vehicle upon a public roadway in willful and wanton disregard for the safety of Vickie Frucci and Kim Becan, respectively. Steels was also charged with a third count as to Ettie Orts. Frucci, Becan, and Orts were the adults in the group of people exiting the mall.

DOUBLE JEOPARDY

Our examination of the entire record convinces us that we must vacate the convictions on counts one and two because of fundamental double-jeopardy error. We acknowledge that Steels did not object as to double jeopardy, has not raised the issue on appeal, and we are mindful of the admonishment in Hailey v. State, cautioning against reversal based on unpreserved complaints of error at trial that violate “ordinary notions of procedural default.” Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002). For reasons we will state, review of this fundamental double-jeopardy error does not violate the rules about procedural default.

Authority to Review

It has long been settled that no assignment of error on appeal is required in a criminal case. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990); Carter v. State, 656 S.W.2d 468, 468 (Tex.Crim.App.1983). “There is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record,. ...’ ” Carter, 656 S.W.2d at 468 (citing The Republic v. Smith, 1841 WL 3098, 1841 Tex. LEXIS 16, Dallam, 407 (Tex.)). Thus, once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. Id. at 469; see also Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App.1986). The Texas Constitution and the statutes provide “a broad scope of review and revision ... that is still recognized, acknowledged and confirmed by the Legislature.” See Carter, 656 S.W.2d at 469; Tex.Code CRiM. PROC. Ann. art. 44.25 (Vernon Supp.2004).

Further, the right to be free from cumulative punishments for the same crime, as guaranteed by the U.S. and State Constitutions, is such a basic and fundamental part of the American scheme of justice that we may “ex mero motu or ex proprio or sua sponte” address an issue involving this right in the interest of justice. See Carter, 656 S.W.2d at 468; Martin v. State, 630 S.W.2d 952, 957-58 (Tex.Crim.App.1982) (Teague, J., dissenting); see also Hensarling v. State, 829 S.W.2d 168, 173 (Tex.Crim.App.1992); Howeth v. State, 645 S.W.2d 787, 788 (Tex.Crim.App.1983).

We may review an unpreserved double-jeopardy issue when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); Ramirez v. State, 36 S.W.3d 660, 666 (Tex.App.-Waco 2001, pet. ref'd); Murray v. State, 24 S.W.3d 881, 888 (Tex.App.-Waco 2000, pet. ref'd). Both elements must be satisfied as a precondition to our review of this issue that was not complained of in the trial court. See Murray, 24 S.W.3d at 888-89.

First, the record is fully developed. Steels stood trial on all three counts and has presented a complete record of that trial for our consideration. This error can be resolved on the basis of the existing record, and it is not necessary to conduct further proceedings to expand the record with new evidence. See Gonzalez, 8 S.W.3d at 643; Murray, 24 S.W.3d at 889. Thus, if there is a double jeopardy violation, it can be determined from undisputed facts clearly apparent on the face of the record. See Gonzalez, 8 S.W.3d at 643; Murray, 24 S.W.3d at 889.

Second, enforcement of the usual procedural default rules serves no legitimate state purpose in this situation. The appropriate remedy for a double-jeopardy violation here is to vacate two of the convictions. Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 1673-74, 84 L.Ed.2d 740 (1985); Landers v. State, 957 S.W.2d 558, 559 (Tex.Crim.App.1997). As a matter of state law, if there is a double jeopardy violation, we would be required to retain the conviction with the “most serious punishment,” and vacate any remaining convictions that are the “same” for double jeopardy purposes. Landers, 957 S.W.2d at 560. Because Steels’ convictions each had the same punishment, a finding of a double jeopardy violation would result in a judgment vacating two of the convictions. See id. at 559 (Tex.Crim.App.1997); Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002, pet. ref'd). These changes would not require retrial or even a remand to the trial court. Thus, there are no adverse consequences resulting from a review of an unpreserved double jeopardy issue, and no legitimate state interests are negatively impacted by doing so. See Shaffer v. State, 477 S.W.2d 873, 875-76 (Tex.Crim.App.1971); Duckett v. State, 454 S.W.2d 755 (Tex.Crim.App.1970). Because both elements of the Gonzalez test are satisfied, we will review “ex mero motu or ex proprio or sua sponte” an unpreserved double jeopardy issue.

Double Jeopardy Authority

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This provision is applicable to the States through the Fourteenth Amendment. See Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The Texas Constitution provides that “[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty.” Tex. Const, art. I, § 14. The Double Jeopardy Clause embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App.1994); see also Saenz v. State, 166 S.W.3d 270, 272 (Tex.Crim.App.2005); Harris v. State, 34 S.W.3d 609, 612-13 (Tex.App.-Waco 2000, pet. ref'd) (finding double jeopardy violation by defendant’s convictions for manslaughter and intoxication manslaughter; vacated manslaughter conviction); Price v. State, 15 S.W.3d 577, 578 (Tex.App.-Waco 2000, pet. ref'd) (finding double jeopardy violation by defendant’s conviction for possession of cocaine and possession of cocaine with intent to deliver; vacated possession offense).

The protection against double jeopardy is inapplicable where separate and distinct offenses occur during the same transaction. Spradling v. State, 773 S.W.2d 553, 556 (Tex.Crim.App.1989). Cumulative punishment, consistent with the Double Jeopardy Clause, may be imposed where separate offenses occur in the same transaction, as long as each conviction requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Although Blockbur-ger addressed a situation where the criminal conduct violated separate statutory provisions, its rationale is instructive to those situations where multiple victims are injured in violation of a single statute. Spradling, 773 S.W.2d at 553. In Block-burger, the Supreme Court set forth the applicable test:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. “At trial there may be a substantial overlap in the proof of each offense; however, it is the separate statutory elements of each offense which must be examined under this test.” Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex.Crim.App.1980) (op. on rehearing); see also Ex parte Scott, 633 S.W.2d 823, 825 (Tex.Crim.App.1980) (op. on rehearing) (holding there is no double jeopardy violation in applicant’s convictions for aggravated rape and robbery). The Double Jeopardy Clause does not restrict a legislature from carving as many offenses as it chooses from one transaction so long as each offense requires “proof of a fact which the other does not.” Phillips v. State, 787 S.W.2d 391, 394 (Tex.Crim.App.1990). The Double Jeopardy Clause prohibits multiple punishments for conduct that violates a statute “only once.” See State v. Houth, 845 S.W.2d 853, 870-71 (Tex.Crim.App.1992) (Benevides, J., concurring).

The Legislature defines whether offenses are the same “by prescribing the ‘allowable unit of prosecution,’ which is a distinguishable discrete act that is a separate violation of the statute.” Ex parte Hawkins, 6 S.W.3d 554, 557 (Tex.Crim.App.1999). The discovery of the allowable unit of prosecution is a task of statutory construction. Id.

Examples of statutes that allow multiple prosecutions for multiple victims are the Penal Code provisions for assaultive offenses. The Court of Criminal Appeals has held that the allowable unit of prosecution for an assaultive offense is each victim. See Ex parte Hawkins, 6 S.W.3d at 560 (robbery); Phillips, 787 S.W.2d at 394-95 (assault); Ex parte Rathmell, 717 S.W.2d 33, 36 (Tex.Crim.App.1986) (voluntary manslaughter). A person commits the offense of robbery if the person, in the course of committing a theft and with the intent to obtain or maintain control of the property, “intentionally, knowingly, or recklessly causes bodily injury to another ” or “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Tex. Pen.Code Ann. § 29.02(a) (Vernon 2003) (emphasis added). A person commits the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” Id. § 22.01(a)(1) (Vernon Supp.2004-05) (emphasis added). A person commits the offense of voluntary manslaughter (criminally negligent homicide) if the person “causes the death of an individual by criminal negligence.” Id. § 19.05(a) (Vernon 2003) (emphasis added). “Another” is defined as “a person other than the actor”; “Person” is defined as “an individual, corporation, or association”; and “Individual” is defined as a human being who has been born and is alive. Id. § 1.07(a)(5), (26), (38) (Vernon Supp.2004-05).

Double Jeopardy Analysis for Reckless Driving Offense

The Legislature has the power to establish and define crimes. If the Legislature desired to establish separate and distinct crimes for each individual present and/or endangered at the time a defendant is driving recklessly, neither the Federal nor State Constitution would prevent the State from prosecuting for each offense. Thus, we must decide whether the Legislature intended that the defendant may be prosecuted for each individual present and/or endangered while a defendant is driving recklessly.

Section 545.401 of the Texas Transportation Code states:

(a) A person commits an offense if the person drives a vehicle in willful or wanton disregard for the safety of persons or property.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine not to exceed $200;
(2) confinement in county jail for not more than 30 days; or
(3) both the fine and the confinement.

Tex. Transp. Code Ann. § 545.401(a), (b) (Vernon 1999). Willful and wanton disregard as applied to reckless driving means deliberate and conscious indifference to the safety of others. Benge v. State, 94 S.W.3d 31, 36 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).

The wording of section 545.401 is unambiguous. It does not use the words “another,” “person,” or “individual.” See Tex. Pen.Code Ann. §§ 19.05(a), 22.01(a)(1), 29.02(a); Ex parte Hawkins, 6 S.W.3d at 560; Phillips, 787 S.W.2d at 394-95; Ex parte Rathmell, 717 S.W.2d at 36. It uses the plural word “persons,” and provides that a person commits the offense of reckless driving if he drives in willful or wanton disregard for the safety of persons or property. It does not provide a distinct offense against each person/individual present or endangered by a single act of reckless driving. See Spradling, 773 S.W.2d at 556. Proof of an identifiable individual as an additional element of the statute is not required, and thus an offense against each person present whose safety is endangered would not constitute a separate allowable unit of prosecution. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182; Phillips, 787 S.W.2d at 394. Thus, double jeopardy prohibits multiple punishments for the same incident of reckless driving. See Houth, 845 S.W.2d at 870-71.

Steels was charged and convicted of three counts of reckless driving. The only difference between the counts is the name of a person present whose safety was endangered. Steels received 30 days in jail for each conviction. All three persons were part of the same group at the same location in the parking lot, and were all endangered at the same time as a result of the same conduct of Steels. Because Steels violated the reckless driving statute “only once” as to these three victims, we find a violation of double jeopardy and vacate the convictions on counts one and two. See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182; Spradling, 773 S.W.2d at 556; Houth, 845 S.W.2d at 870-71; Phillips, 787 S.W.2d at 394.

FACTUAL SUFFICIENCY

Because we vacate the convictions on counts one and two, we need not address Steels’ factual sufficiency issue.

CONFRONTATION CLAUSE

Steels also argues a Confrontation Clause violation. Even though this is not presented as a separate issue, we will address it. A defendant waives an alleged violation of his right to confrontation by failing to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990). Accordingly, we find that Steels did not preserve his complaint regarding a violation of his right to confrontation. See Tex.R.App. P. 33.1; Briggs, 789 S.W.2d at 924. We overrule Steels’ confrontation issue.

CONCLUSION

Having found a violation of Steels’ double jeopardy right, we vacate the judgments on counts one and two. Because Steels does not raise issues regarding count three, we affirm the judgment as to that count.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

In Ramirez v. State, 36 S.W.3d 660 (Tex.App.-Waco 2001, pet. ref'd), we went through an exhaustive analysis of bringing a double jeopardy complaint on appeal. With regard to whether or not a double jeopardy claim had to be preserved at the trial court, we stated

Ordinarily, this initial lapse in preservation would end our discussion. See Tex.R.App. P. 33.1. However, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal or for the first time on collateral attack when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when (2) the enforcement of the usual rules of procedural default serves no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); Murray v. State, 24 S.W.3d 881, 888 (Tex.App.-Waco 2000, no pet.). See also Shaffer v. State, 477 S.W.2d 873, 876-877 (Tex.Crim.App.1971).

Id. at 666.

Allowing an appellant to raise, brief, and argue an issue not presented to the trial court, as described in the foregoing paragraph, is a far cry different than what the majority is doing in this case. When the appellant identifies the issue and includes in its brief a full discussion of the merits of the issue, the advocacy system works because the State also has notice of the opportunity to brief the issue and counter with its arguments. However, when the court, identifies, briefs, and decides an issue I have never known it to lose that argument. At least not at that level. We have, however, been repeatedly told that we should not do this for litigants. See Hadley v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App.2003). This is particularly appropriate in this case where, if the majority is correct, the appropriate vehicle through which to attack the issue is by a writ of habeas corpus originally filed in the trial court for development of necessary factual underpinnings, if any, which would attack the validity of the three judgments on double jeopardy grounds, if appropriate.

I do not join in the majority’s efforts to lawyer this case for the litigant. Because Appellant failed to preserve or present a double jeopardy claim, I dissent.

      . The court signed and entered three separate judgments.

      . One could argue that the issue on appeal “fairly includes a double-jeopardy complaint,” but we will treat it as not raising the issue.

      . Counts one and two are before us on a factual sufficiency issue.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    David JONES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00044-CR.
    Court of Appeals of Texas, Waco.
    July 20, 2005.

      John A. Kuchera, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   MEMORANDUM OPINION ON PETITION FOR DISCRETIONARY REVIEW

BILL VANCE, Justice.

As authorized by Rule 50 of the Rules of Appellate Procedure, we issue this modi-fled opinion within 30 days after Appellant filed a Petition for Discretionary Review. Tex.R.App. P. 50.

Introduction

Appellant David Jones, Jr. directly appeals his felony conviction for attempted burglary of a habitation (habitually enhanced). Punishment was assessed by the jury at 70 years in the Texas Department of Corrections.

In three issues, Jones alleges that his trial attorney rendered ineffective assistance of counsel by (1) failing to request a jury instruction on the lesser included offense of attempted criminal trespass, (2) failing to object to an instruction in the jury charge that allegedly instructed the jury that Appellant was charged with burglary, rather than attempted burglary, and (3) failing to object to the trial court’s response to a jury note.

Strickland v. Washington

The legal standard set out in Strickland v. Washington applies to Jones’s claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail on his claims, Jones must first show that his counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). Specifically, Jones must prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642.

Second, Jones must show that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (“This [prejudice prong] requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”). As explained in Mitchell, “[t]his means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Mitchell, 68 S.W.3d at 642. A “reasonable probability” is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Mitchell, 68 S.W.3d at 642.

Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional. See Goodspeed v. State, — S.W.3d —, —, 2005 WL 766996 at *2 (Tex.Crim.App. April 6, 2005); Mitchell, 68 S.W.3d at 642.

Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999) (to defeat the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness”); see also Johnson v. State, 68 S.W.3d 644, 655 (Tex.Crim.App.2002) (“[t]he record does not reveal defense counsel’s reasons for not objecting to the prosecutor’s comments. Given the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we see nothing in the present record that would compel us to find counsel ineffective.”); Mitchell, 68 S.W.3d at 642 (“[gjenerally the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient as to meet the first part of the Strickland standard. The reasonableness of counsel’s choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.”).

In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001) (“an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”) (quoting 3 W. Lafave, et al., CRIMINAL PROCEDURE § 11.10(c) (2d ed.1999) and citing Thompson, 9 S.W.3d at 814). But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it. See Thompson, 9 S.W.3d at 814; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). “A reviewing court can frequently speculate on both sides of an issue, but ineffective assistance claims are not built on retrospective speculation; rather, they must ‘be firmly founded in the record.’ ” Avila v. State, 2003 WL 21513440 at *10 (Tex.Crim.App. July 2, 2003) (not designated for publication) (quoting Bone, 77 S.W.3d at 833).

Analysis

Jones did not move for a new trial or request a post-verdict hearing on trial counsel’s strategies. Thus, we do not have in the record before us Jones’s trial attorney’s reasons for the conduct at issue. Nevertheless, we will analyze Jones’s claims to the extent possible.

Failure to request lesser included offense instruction

Jones, who was convicted of attempted burglary of a habitation, asserts that his trial attorney was ineffective because he failed to request a jury instruction on the lesser included offense of attempted criminal trespass. Failure to request a jury instruction on a lesser included offense can render assistance of counsel ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it. Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992). But the defendant bears the burden of overcoming the presumption that counsel’s decision not to request the instruction could be considered sound trial strategy. See Jackson, 877 S.W.2d at 771-72.

Attempted criminal trespass can be a lesser included offense of attempted burglary. Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985); Waddell v. State, 918 S.W.2d 91, 93 (Tex.App.-Austin 1996, no pet.). There was some evidence in the record that Jones’s intent was not to enter the premises to commit a theft or a felony: Jeremy Cooper, a witness, testified that he heard Jones say, after police had arrived, that he was trying to look for a place to sleep. We thus conclude that the trial court would have erred in refusing a lesser included offense instruction for attempted criminal trespass.

The record, however, is devoid of why such an instruction was not requested. By comparison, in Waddell, the defendant’s attorney testified at the hearing on the motion for new trial that he did not think that an instruction was available under the facts and the law. But he was wrong and that error amounted to ineffective assistance. Waddell, 918 S.W.2d at 94-95. In contrast, in Sendejo v. State, counsel was not ineffective where the defendant’s attorney was made aware of the instruction’s availability by the trial court, but with the defendant’s assent, counsel instead chose to “roll the dice” with an “all-or-nothing” strategy. Sendejo v. State, 26 S.W.3d 676, 678-80 (Tex.App.-Corpus Christi 2000, pet. ref'd).

Without a record that reveals the reason why a request for an instruction on the lesser included offense of attempted criminal trespass was not requested, we cannot speculate whether Jones’s trial counsel was ineffective as the attorney was in Waddell or employed an all-or-nothing strategy like the attorney in Sendejo.

Failure to object to instruction that Jones was charged with burglary, rather than attempted burglary

Jones next asserts that his trial attorney was ineffective because he failed to object to the jury charge’s instruction that Jones was charged with burglary, rather than attempted burglary. While there is less need for a reason for the attorney’s failure to object, in making this complaint Jones’s brief does not offer any argument that this failure prejudiced his defense. Tex.R.App. P. 38.1(h); see Walder v. State, 85 S.W.3d 824 (Tex.App.-Waco 2002, order).

Failure to object to the trial court’s response to a jury note

Lastly, Jones asserts that his trial attorney was ineffective because he failed to object to the trial court’s response to a jury note. The jury requested the testimony of witness Jeremy Cooper because there was disagreement about whether Cooper saw Jones around 6:00 p.m. The trial court responded that there was no such testimony. This response arguably was incorrect (Cooper’s testimony reveals that he did not see Jones at 6:00 p.m.—he only saw him around 11:30 p.m.) and a comment on the evidence, but in this instance Jones’s trial attorney may have strategically decided not to object because hearing Cooper’s testimony again would have reminded the jury that Cooper saw Jones at the scene of the offense near the time of the offense. Regardless, Jones’s brief fails to provide an argument that this failure to object prejudiced his defense. See id.

Conclusion

In this appeal, we have not decided that Jones did or did not receive effective assistance of counsel at trial. See Thompson, 9 S.W.3d at 814 (‘We are not deciding on this direct appeal, therefore, that appellant did or did not receive the effective assistance of counsel during trial.”). Instead, without a record revealing trial counsel’s strategy or motivation, Jones has not defeated the strong presumption that his trial counsel’s actions fell within the wide range of reasonable and professional assistance. See id. Thus, we overrule Jones’s three issues without prejudice. See Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000) (“the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant’s ability to dispute counsel’s effectiveness collaterally.”).

The trial court’s judgment and sentence are affirmed. Our opinion and judgment dated March 23, 2005, are withdrawn, and this opinion is substituted as the opinion of the court. Tex.R.App. P. 50. Jones’s Petition for Discretionary Review is dismissed by operation of law. Id.

Chief Justice GRAY concurs.

      . Jones, citing Bone v. State, acknowledges the presumption that trial counsel employed sound strategy cannot normally be overcome on direct appeal because the record will not contain evidence of the trial attorney’s reasons for his conduct. See Bone v. State, 77 S.W.3d 828 (Tex.Crim.App.2002). He states that he nonetheless seeks to comply with this Court’s directive that all appellate arguments be made that might "conceivably” persuade the Court. See Taulung v. State, 979 S.W.2d 854, 856 (Tex.App.-Waco 1998, no pet.).


text:
    Clinton R. HARDY and Karen Phelps as Next Friend of Anthony C. Hardy, Appellants, v. Vera Charlene ROBINSON, Appellee.
    No. 10-04-00344-CV.
    Court of Appeals of Texas, Waco.
    July 20, 2005.

      Timothy O. Ketchersid, Timothy O’Hare & Associates, Dallas, for appellants.
    Clay Lewis Jenkins, Jenkins & Jenkins PC, Waxahachie, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Anthony Hardy (“Anthony”) contracted Hepatitis A from eating tainted food at a Jack-in-the-Box. He sued Jack-in-the-Box for personal injuries (“Lawsuit”). His health deteriorated, and on the day he died, he signed a statutory durable power of attorney. The trial court held that this statutory durable power of attorney created a trust, which was funded with the Lawsuit, and recognized Anthony’s sons as beneficiaries and his sister (Vera Charlene Robinson) as the trustee. Anthony’s son, Clinton R. Hardy, and Karen Phelps (Hardy’s ex-wife), as next friend of Anthony C. Hardy, a minor, appeal the trial court’s judgment in four issues: (1) whether the trial court should have strictly construed the statutory durable power of attorney; (2) whether the evidence is legally sufficient to support the trial court’s finding that Anthony orally transferred the Lawsuit to a trust; (3) whether a trust in personal property (particularly a cause of action) may be created verbally by transfer of the personal property to a trustee; and (4) whether Appellants received insufficient notice of trial.

We will reverse the judgment and will render judgment that Anthony did not transfer his rights in the Lawsuit to Robinson, he did not express an intent to create a trust, and he did not create an oral trust or a written trust.

BACKGROUND

Anthony filed the Lawsuit against Jack-in-the-Box in Henderson County. As his health deteriorated, he considered hospice care. A nurse gave him a form for a statutory durable power of attorney to help with transfer to hospice. He signed the power of attorney and named Robinson as his agent.

The document is entitled “STATUTORY DURABLE POWER OF ATTORNEY” and begins with a notice:

NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO.

Anthony did not cross-out any of the powers listed in this power of attorney. The document includes the following section:

SPECIAL INSTRUCTIONS:
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
It is my desire to continue with the lawsuit against Jack-in-the-Box where I am represented by Jenkins & Jenkins. Proceeds from any settlement or payments for injury should be placed in trust for the benefit of my sons Clinton R. Hardy and Anthony C. Hardy. It is my desire that my sister, Vera Charlene Robinson be appointed trustee of the trust to benefit my sons.

Anthony died on the same day that he signed the document.

The trial court’s judgment held (1) a trust was created, (2) the beneficiaries are Anthony C. Hardy and Clinton R. Hardy, (3) the trustee is Vera Charlene Robinson, and (4) the property of the trust is the cause of action owned by Hardy at his death and brought in the 3rd Judicial District in and for Henderson County, Texas, entitled Bennett, et al. v. Jack in the Box Inc., No. 02-270.

ISSUE ONE:

CONSTRUCTION OF STATUTORY DURABLE POWER OF ATTORNEY

Appellants essentially argue that the trial court should have strictly construed the statutory durable power of attorney and considered the “special instructions” along with the other provisions of the power of attorney to find that Anthony did not create a trust. They argue that the special instructions were both an expansion and limitation on Robinson’s powers as an agent.

Robinson argues that strict construction is only required to determine the scope of an agent’s powers. She argues that the special instructions in the power of attorney are sufficient to create a trust.

The Supreme Court has set forth the following two rules of construction regarding powers of attorney: (1) the meaning of general words in the instrument will be restricted by the context, and construed accordingly; and (2) the authority will be construed strictly, so as to exclude the exercise of any power which is not warranted, either by the actual terms used, or as a necessary means of executing the authority with effect. Gouldy v. Metcalf, 75 Tex. 455, 12 S.W. 830, 831 (1889); see also Avis v. First Nat’l Bank, 141 Tex. 489, 174 S.W.2d 255, 259 (1943); Frost v. Erath Cattle Co., 81 Tex. 505, 17 S.W. 52, 54 (1891) (powers of attorney, unlike deeds and wills, are to be strictly construed). The nature and extent of the authority granted must be ascertained from the instrument granting the power of attorney. First Nat’l Bank v. Kinabrew, 589 S.W.2d 137, 145 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.).

The Durable Power of Attorney Act (the Act) states that a “durable power of attorney” means a written instrument that:

(1) designates another person as attorney in fact or agent;
(2) is signed by an adult principal;
(3) contains the words “This power of attorney is not affected by subsequent disability or incapacity of the principal,” or “This power of attorney becomes effective on the disability or incapacity of the principal,” or similar words showing the principal’s intent that the authority conferred on the attorney in fact or agent shall be exercised notwithstanding the principal’s subsequent disability or incapacity; and
(4) is acknowledged by the principal before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state or any other state.

Tex. PROB.Code Ann. § 482 (Vernon 2003). A statutory durable power of attorney is a form promulgated by the Act that may be used to grant an attorney-in-fact or agent powers with respect to a person’s property and financial matters. Id. § 490(a) (Vernon 2003). A power of attorney substantially in the statutory form has the meaning and effect prescribed by the Act. Id. “The validity of a power of attorney as meeting the requirements of a statutory durable power of attorney is not affected by the fact that one or more of the categories of optional powers listed in the form are struck or the form includes specific limitations on or additions to the attorney in fact’s or agent’s powers.” Id.

The power of an attorney-in-fact or agent terminates upon the death of the principal. Id. §§ 486(a), 487(a) (Vernon 2003).

Section 500 of the Act confers general authority with respect to claims and litigation. Id. § 500 (Vernon 2003). Section 499 empowers the attorney-in-fact or agent to act for the principal in all matters that affect an already existing trust. Id. § 499 (Vernon 2003); see also Ritter v. Till, 2005 Tex.App. LEXIS 2108, *15 (Tex. App.-Houston [14th Dist.] Mar. 15, 2005, no pet. h.) (an agent acting under a power of attorney cannot have the requisite intent to create a trust; the power under section 499 does not appear to allow the agent to create a trust and transfer property to it).

We find that the document Anthony signed on the day he died is a statutory durable power of attorney because: (1) it designates Robinson as his agent (attorney-in-fact); (2) is signed by an adult principal (Anthony); (3) states that “this power of attorney is not affected by my subsequent disability or incapacity”; and (4) was acknowledged before a notary. See id. § 482. Thus, we must follow the Supreme Court and strictly construe this document. See Gouldy, 12 S.W. at 831.

Because we must strictly construe Anthony’s statutory durable power of attorney, we read the language in the special instructions as an expansion of power granted to Robinson, i.e., a power to create a trust from any proceeds of the Lawsuit, which Robinson would not otherwise be entitled to exercise under section 499. See Tex. PROb.Code Ann. § 499; see also Ritter, 2005 Tex.App. LEXIS 2108, at *15. We interpret the first sentence of the special instructions as naming a specific lawsuit that Robinson would have the power to pursue as Anthony’s agent under the power of attorney and section 500. See Tex. PROb.Code Ann. § 500. When we strictly construe the power of attorney, we find that Anthony did not create a trust with the language he used in the special instructions.

We sustain issue one and render judgment that Anthony Hardy did not create a trust in the statutory durable power of attorney he signed on the day he died.

ISSUE TWO: LEGAL SUFFICIENCY OF ORAL TRANSFER

A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (I960)). We must credit favorable evidence if reasonable fact finders could, and disregard contrary evidence unless reasonable fact finders could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Generally, if the court of appeals sustains a “no evidence” point, it is the court’s duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (quoting Nat'l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969)).

Appellants argue that there is no evidence of a verbal transfer of the rights in the Lawsuit from Hardy to Robinson. Robinson argues that Anthony orally transferred his rights in the Lawsuit to her as trustee.

The trial court made specific findings of facts that (1) Anthony verbally transferred all rights in the Lawsuit to Robinson to be held in trust for the benefit of his sons; and (2) Robinson accepted title to all rights Anthony had in the Lawsuit to be held in trust for the benefit of Anthony’s sons.

Robinson’s testimony indicates that she understood the power of attorney to convey the Lawsuit to her to hold in trust for his sons. This is not evidence to support the trial court’s conclusion that Anthony then transferred his rights in the Lawsuit to Robinson. See Juliette Fowler, 793 S.W.2d at 666 n. 9. Thus, we find the evidence legally insufficient to support the trial court’s findings.

We sustain issue two and render judgment that Anthony Hardy did not verbally transfer his rights in the Lawsuit to Robinson.

ISSUE THREE: ORAL TRANSFER OF CAUSE OF ACTION

At issue here is the trial court’s conclusion of law: “A trust in personal property may be also created verbally by the transfer of the trust property to a trustee who is neither settlor nor beneficiary if the transferor expresses simultaneously with or prior to the transfer the intention to create a trust.”

Appellants essentially argue that the trial court found an oral trust based on its finding that Anthony verbally transferred all rights in the Lawsuit to Robinson to be held in trust for the benefit of his sons. They also argue that a writing is required to transfer a cause of action.

Robinson argues that a trust may be created through the oral transfer of personal property, and a cause of action is personal property.

A trust in either real or personal property is enforceable only if there is written evidence of the trust’s terms bearing the signature of the settlor or settlor’s authorized agent. Tex. PROP.Code Aun. § 112.004 (Vernon 1995). However, a trust consisting of personal property is enforceable if it is created by “a transfer of the trust property to a trustee who is neither settlor nor beneficiary if the transferor expresses simultaneously with or prior to the transfer the intention to create a trust.” Id. § 112.004(1). The definition of property includes “dioses in action, claims, and contract rights.” Id. § 111.004(12) (Vernon Supp.2004-05). The Property Code requires a writing for the sale of a cause of action. Id. § 12.014 (Vernon 2004).

The Lawsuit is personal property. Thus, Anthony created an oral trust if: (1) he transferred the Lawsuit to Robinson; (2) Robinson would not be the settlor or a beneficiary; and (3) he expressed his intention to create a trust simultaneously with, or prior to, the transfer. Id. §.112.004(1). First, Robinson would not be the settlor or a beneficiary of the alleged trust. Second, regarding Anthony’s intention to create a trust, Robinson testified that the only thing Anthony said to her with regard to the trust is what he stated in the special instructions. We find that this language does not evidence an intent to create a trust — it evidences Anthony’s intent to give Robinson the power to create a trust, as his agent under the power of attorney, with any proceeds realized from the Lawsuit. Lastly, we have already concluded that Anthony did not verbally transfer the Lawsuit to Robinson. Thus, we sustain issue three and render judgment that (1) the special instructions in Anthony Hardy’s statutory durable power of attorney did not evidence his intent to create a trust; and (2) Anthony Hardy did not create an oral trust.

CONCLUSION

Having sustained issues one, two, and three, we need not address Appellant’s fourth issue concerning notice of trial. We reverse the judgment and render judgment that (1) Anthony Hardy did not create a trust by the statutory durable power of attorney he signed on the day he died; (2) Anthony Hardy did not verbally transfer his rights in the Lawsuit to Robinson; (3) the special instructions in Anthony Hardy’s statutory durable power of attorney did not evidence his intent to create a trust; and (4) Anthony Hardy did not create an oral trust.

      . Clinton Hardy was a minor but has attained age 18.

      . This underlined portion was dictated by Hardy and handwritten by Robinson.

      . We reject Robinson's argument to apply the standard used by the Supreme Court in Perfect Union Lodge No. 10, A.F. and A.M. San Antonio v. Interfirst Bank of San Antonio, N.A., 748 S.W.2d 218 (Tex.1998), because the Supreme Court was construing a will.

      . In addition, we note that there is no evidence in the record that the Lawsuit can even be transferred. To determine if a lawsuit can be transferred, we must look at: (1) the words of the statute; (2) the purpose of the statute to determine whether assignment of claims is consistent with its goals; (3) related common law principles; and (4) whether assignment may increase or distort the litigation. PPG Indus., Inc. v. JMB/Houston Centers Partners Ltd. Partnership, 146 S.W.3d 79, 83-92 (Tex.2004) (finding DTP A claim was not assignable from the aggrieved consumer to someone else due to the personal and punitive nature of the claim); and cases cited therein. Robinson has provided no evidence of the claims asserted in the Lawsuit.


author: ANN CRAWFORD McCLURE, Justice.

text:
    Adam Rene SOTELO, Appellant, v. Lorie Eileen GONZALES, Appellee.
    No. 08-04-00185-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      Carol Gregg, Odessa, for Appellant.
    Lori Eileen Gonzales, Monahans, pro se.
    Greg M. Holly, Monahans, for Appellee.

      Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Adam Rene Sotelo (Sotelo) appeals from a modification order in a suit affecting the parent-child relationship in which the maternal grandmother was appointed a joint managing conservator with the exclusive right to determine the child’s primary residence. At issue is the sufficiency of the evidence to rebut the parental presumption. Because the parental presumption is inapplicable in a modification proceeding, we affirm.

FACTUAL SUMMARY

Adam Drake Sotelo (Adam) was born on Christmas Day in 1999 to Adam Rene Sotelo (Sotelo) and Lorie Eileen Gonzales (Lorie). The family lived together in Odessa, Texas until Lorie and Adam moved to Monahans to live with her parents about a year after the child was born. In April 2001, Sotelo filed a voluntary statement of paternity and sought sole managing conservatorship of Adam. Suit was filed in Ector County, Texas, where Sotelo continued to reside. Lorie filed a counterpetition. In November 2001, So-telo was adjudicated as Adam’s father. Sotelo and Lorie were named joint managing conservators and Lorie was given the exclusive right to establish the primary residence of the child. The court entered a standard possession order.

In April 2008, Sotelo moved to modify the parent-child relationship. He sought the exclusive right to determine Adam’s primary residence or, in the alternative, that Adam’s residence be restricted to Ector County and contiguous counties. Lorie filed a motion to transfer the cause to Ward County, a motion for writ of possession, a motion to modify the suit affecting the parent-child relationship, a motion for enforcement, and a motion for judgment on child support arrearages.

The trial court issued a writ of possession, finding Lorie was entitled to possession of the child, and transferred the proceedings to the 143rd Judicial District Court of Ward County. The maternal grandparents, Rose and Charles Cartwright, intervened seeking managing con-servatorship, possessory conservatorship, or reasonable access. Charles was non-suited and in February 2004, the trial court appointed Rose as the temporary sole managing conservator. Sotelo and Lorie were appointed temporary possesso-ry conservators. In March, Rose filed a motion for enforcement, complaining that Sotelo and Lorie had failed to return Adam to her.

In April 2004, Peggy Honaker filed a home study with the court. Honaker recommended that Adam be cared for by one of his parents but by that time, Lorie was no longer in the picture. Consequently, she recommended that Sotelo be appointed managing conservator.

The court found that appointment of a parent as sole managing conservator would not be in the best interests of the child because it would significantly impair Adam’s physical health or emotional development. The court then appointed Rose and Sotelo as joint managing conservators. Lorie was appointed as possessory conservator. Rose was given the exclusive right to determine the primary residence of the child. This appeal proceeds without benefit of findings of fact and conclusions of law.

In his sole point of error on appeal, Sotelo challenges the sufficiency of the evidence to defeat the parental presumption. As we will explain, the presumption does not apply in a modification proceeding. We reframe the issue for review as one challenging the sufficiency of the evidence to meet the statutory requirements for modification.

STANDARD OF REVIEW

Most orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Lide v. Lide, 116 S.W.Sd 147, 151 (Tex.App.-El Paso 2003, no pet.). However, an appellant may challenge the trial court’s findings of fact for legal and factual sufficiency of the evidence. See Hodson v. Reiser, 81 S.W.3d 363, 367 (Tex.App.-El Paso 2002, no pet.). In a bench trial where no findings of fact or conclusions of law are filed, the judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, Texas, 922 S.W.2d 945, 948 (Tex.1996). Where a reporter’s record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency points. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). The applicable standard of review is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989).

While an appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances that is not enough. Hodson, 81 S.W.3d at 367. In a case involving these overlapping standards of review, we engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Hodson, 81 S.W.3d at 367; Lide, 116 S.W.3d at 151. The traditional sufficiency inquiry applies to the first question. Hodson, 81 S.W.3d at 367; Lide, 116 S.W.3d at 151. Once we have determined whether sufficient evidence exists, we must then decide whether the trial court made a reasonable decision. Hodson, 81 S.W.3d at 367; Lide, 116 S.W.3d at 151. In other words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81 S.W.3d at 367; Lide, 116 S.W.3d at 151.

A “no evidence” point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact-finding. Lide, 116 S.W.3d at 151; In the Interest of De La Pena, 999 S.W.2d 521, 532 (Tex.App.-El Paso 1999, no pet.). When reviewing legal sufficiency, we consider only the evidence and inferences tending to support the trial court’s finding, disregarding all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). If any probative evidence supports the factual finding, it must be upheld. Hodson, 81 S.W.3d at 367. “Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. Lide, 116 S.W.3d at 151. In reviewing an issue asserting that a finding is factually insufficient or against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. Lide, 116 S.W.3d at 151. It is for the fact finder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Id.

The term “abuse of discretion” is not susceptible to rigid definition. Hod-son, 81 S.W.3d at 368. The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Id. Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Id. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965). An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision, Lide, 116 S.W.3d at 152. If, however, the trial court drew an incorrect conclusion of law by misapplying the law to the facts and the controlling findings of fact do not support a correct legal theory sufficient to support the judgment, an abuse of discretion would be shown.

THE PARENTAL PRESUMPTION

There is a strong presumption that the best interest of a child is served if a natural parent is appointed as a managing conservator. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990); De La Pena, 999 S.W.2d at 527; In the Interest of A.D.H., 979 S.W.2d 445, 447 (Tex.App.Beaumont 1998, no pet.); see also Brook v. Brook, 881 S.W.2d 297, 299 (Tex.1994); Tex.Fam.Code Ann. § 153.131(a)(Vernon 2002). A parent shall be appointed as sole managing conservator, or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. For the court to award managing conservator-ship to a non-parent, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. In the Interest of M.W., 959 S.W.2d 661, 665 (Tex.App.-Tyler 1997, writ denied); Brook, 881 S.W.2d at 298. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. M.W., 959 S.W.2d at 665. This link between the parent’s conduct and harm to the child may not be based on evidence which merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, “close calls” go to the parent. M.W., 959 S.W.2d at 666; Ray v. Burns, 832 S.W.2d 431, 434 (Tex.App.-Waco 1992, no writ).

This presumption also applies when a non-parent and parent are appointed joint managing conservators of a child but the non-parent is given primary custody. De La Pena, 999 S.W.2d at 534. The parent should be awarded primary possession unless such an order would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. Id. at 534-35. To hold otherwise would permit the court to apply the presumption in appointing the parent a joint managing conservator but nevertheless choose the primary residence of the child on the basis of a heads-up best interest test, with the court determining which of the parties is the “better” choice. Id.

Sotelo relies heavily upon Lewelling and De La Pena in his argument. In both of these cases, the custody dispute between the parent and non-parent arose in the context of an original suit affecting the parent-child relationship. The instant case involves a modification of a prior order. Consequently, our analysis must be guided by In re V.L.K., 24 S.W.3d 338 (Tex.2000). There, the Supreme Court explicitly pronounced that “the parental presumption applies only in original custody determinations and not in a modification proceeding.” Id. at 340. The court further specified that it makes no difference whether the parties to the original proceeding are identical to the parties in the modification suit. Id. at 343. Recognizing that the parental presumption is deeply embedded in Texas law, the court concluded that in a modification, the burden of proof derives from Section 156.101. Tex.Fam.Code Ann. § 156.101(a). Id. at 342. The current version of the statute applicable to our analysis provides in pertinent part:

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
(A) the date of the rendition of the order.

Tex.Fam.Code Ann. § 156.101(l)(Vernon 2004-05).

In his motion to modify, Sotelo affirmatively pled that “[t]he circumstances of the child, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified.” He does not challenge that element on appeal. Consequently, we must determine whether Rose established that the modification was in Adam’s best interest.

As we said in De La Pena, custody disputes by their very nature are inherently fact-intensive. De La Pena, 999 S.W.2d at 529. Concepts of psychological parenting, bonding, and the depth of attachments to parent-figures must be viewed in the context of the evidence presented. Id. Appellate courts routinely defer to the fact finder at trial concerning matters of credibility and demeanor, but perhaps in no other type of litigation is it more critical. Id. In most instances, the fact finder will not hear from the child the subject of the suit; the child’s behavior, experiences, fears, joys, and significant attachments will be conveyed through pictures and through the words of other witnesses, both lay and expert. Id. The individuals vying for con-servatorship may be scrutinized by the fact finder for such intangible signs as an animated smile when describing a child’s achievements, a furrowed brow when explaining typical affectionate concern, or even tears when anticipating the emotional impact the outcome of litigation will have on a child. Id. Because safety, security, and stability are critical to child development, the danger of uprooting a child is an important factor.

WAS THE MODIFICATION IN ADAM’S BEST INTEREST?

To prevail, Rose had to establish that it was in Adam’s best interest that she be appointed as a managing conservator with the exclusive right to determine the child’s primary residence. We now turn to the evidence elicited at trial.

Eddie Terrazas, a manager at a drug screen compliance lab, testified that Sotelo had taken five drug tests. The tests screened for seven specific drugs: amphetamine, barbiturates, benz, cocaine, opiates, POP, and marijuana. The tests were scheduled by Sotelo and administered on June 9, 2003, March 9,2004, April 20, 2004, May 13, 2004, and May 21, 2004. No drugs were found in Sotelo’s system. Marijuana stays in the system up to four weeks for a chronic user and seven days for an occasional user; cocaine remains for twelve to forty-eight hours.

Francis Hall, the office manager and assistant director at the Joe Pinner West-side YMCA, knew Sotelo, his mother, and Adam because the child had been enrolled at the facility for several months at a time Hall had an opportunity to observe Adam and did not notice anything that would cause her concern. She did not discern any behavioral problems and thought the child seemed happy. Sotelo would drop off Adam and pick him up. Hall had never seen Lorie or Rose.

Luis Rios, a friend of Sotelo, had an opportunity to observe Sotelo with Adam. Rios thought Sotelo was a good father and he did not see anything that would cause him concern. Rios would not worry about leaving his own children with Sotelo. Rios denied that Sotelo used cocaine or that cocaine had been used at any parties they attended together. He had seen Lorie smoke marijuana’around Adam. Lorie, on the other hand, testified that she, Rios, and Sotelo had all used drugs. She and Rios smoked marijuana and all three of them used cocaine.

Social worker Peggy Honaker prepared a home study. She visited the Cartwright home and Sotelo’s home and found Adam to be happy, secure, and well-adjusted in both places. She was aware of allegations concerning drug use but she found no indications of it in either home. The Cart-wrights had been earing for Adam most of his life and this was a positive thing. She also found that Sotelo played an active role in the boy’s life.

Tina Mason is Sotelo’s mother. She testified that Sotelo played a positive role in his son’s life. Adam lived with Sotelo in the spring of 2003 and from December 29, 2003 until February 9, 2004. During that time, Sotelo dropped off and picked up the child from daycare, cooked for him, and bathed him. In the four months preceding trial, Sotelo had fostered a positive relationship with the child. Adam was excited when he came for weekend visits.

Mason had seen nothing to cause her concern and she denied any knowledge of Sotelo using drugs. She thought his one-bedroom home was clean and well kept. She did not believe Adam would be safe in Lorie’s custody. Mason admitted that the child had been living with the Cartwrights for some time but she believed that allowing Adam to live with his father would be a positive and stabilizing experience.

Mason admitted that both times Adam had lived with Sotelo, it had occurred in violation of court orders. She was concerned when the child was in Rose’s care. Rose did not put Adam in a car seat and allowed him to jump on the trampoline unsupervised. Mason would pick the child up from the country club where Rose worked and Mason believed this was an inappropriate environment. Adam was always covered with mosquito bites in the summer causing Mason alarm due to the West Nile virus.

Sotelo described his house as having one bedroom and a fenced backyard. He had worked at Big Tex Trailers on the loading dock since January 2004. During the busy season, Sotelo worked approximately sixty hours a week. He had applied for a construction job where he would make more money.

Adam lived with Sotelo and Lorie until he was a year or a year and a half. When the couple split up, the court awarded primary custody to Lorie. Adam lived with Sotelo on two separate occasions in 2003. In March, Lorie dropped him off with Sotelo and left for Houston. Sotelo admitted that the Cartwrights asked him to bring the child back to their house, but he refused. The court ordered him to return the child. Lorie took Adam back to Sotelo in December. Sotelo testified that he only had an obligation to return Adam to Lorie, and she never asked. He also claimed that Rose had not asked him to bring Adam to her. Once again, it took a court order for Sotelo to surrender the child.

Sotelo believed that Adam should live with him since he was his father. He thought he was capable of taking care of the child. He admitted drug usage in the past but professed he had not done so since he was nineteen or twenty years old. He was twenty-five years old at the time of the trial. On cross-examination, he denied using marijuana since Adam’s birth. Adam was four at the time of trial. Sotelo also admitted to having used cocaine. He agreed to undergo random drug testing.

Sotelo exercised most of his weekend visitation and paid child support, even if he had not always paid the full amount due. He also gave Lorie money for rent. He admitted representing on his 2002 and 2003 federal income tax returns that Adam was living with him when he was not.

Harvey Gomez testified that on New Year’s Eve 2002, he went to the North Side bar. There were a couple of fights that evening. Sotelo got into a fight defending a friend. Gomez saw a lot of drugs that evening and Sotelo offered to sell him cocaine. But he never saw the drugs in Sotelo’s possession and he believed Sotelo was bluffing.

Velma Payan, a teacher at Monahans Head Start, testified that Adam was in her class. He attended class regularly except for missing school in January. Payan described Adam as an easygoing and social child who got along well with teachers and other students. Payan had contact only with Rose and Lorie. Sotelo never contacted her to check on Adam’s progress in school. Lorie would attend class parties and drop off and pick the child up from school. Rose volunteered on a daily basis and would eat lunch with Adam. She also attended class parties and was available for conferences. At the beginning, Adam was a little withdrawn and quiet, but he progressed well with his vocabulary and social skills improved. When eating breakfast, the children would often discuss their families. One child said that he wanted to ride a motorcycle like his dad. Adam responded that he wanted to go to bars and get drunk like his dad. Payan never heard Adam mention his father any other time.

Rose Cartwright testified that Adam lived with Sotelo and Lorie for about six months until Adam and Lorie came to live with her. She and her husband provided clothing, food, and medical insurance for Adam as well as a home. She had enrolled the child in Head Start.

When Sotelo failed to return Adam in the spring of 2003, Rose called him and his mother. She went to Odessa and left notes and letters asking that the child be returned. When Lorie again left Adam with Sotelo in December, Rose attempted to contact the child by calling Sotelo’s cell number, his mother’s number, and leaving notes. She spoke to Sotelo’s mother a few times, and she would make excuses as to why Sotelo could not come to the phone.

Rose testified that she did not use drugs. She was concerned about Adam living with Sotelo. The child had attended a party with his father and came home pretending to snort cocaine off a table. Due to the drug issues, Rose believed that placing the child with his father could significantly affect his emotional or physical development. She believed it was in Adam’s best interest that she be named managing conservator.

Charles Cartwright testified that he had taken on the responsibility of supporting and raising Adam. He had not used drugs within the last four years but had within the last ten years. Now he was “clean” and would not allow drugs in his house. He agreed that a person could use drugs at one point and then turn it around. He believed it would be in Adam’s best interests for Rose to be named managing conservator since Adam’s involvement with her had been a positive experience.

Lorie testified that she had moved back with her parents in Monahans when Adam was a year old and the child had lived there ever since. The Cartwrights provided financial support for the child and the whole family cared for him. Lori believed that Adam was safe with her parents and that Rose had the child’s best interests at heart. Although she had originally professed that Adam was better off with So-telo, by the time of trial she thought it was in Adam’s best interest for Rose to be his managing conservator.

The evidence is both legally and factually sufficient to established that modification was in Adam’s best interest. Sotelo offered to sell Harvey Gomez cocaine in 2002. Sotelo had no involvement in Adam’s daily school routine. Adam told his classmates that he wanted to be just like his father and go to bars and get drunk. He pretended to sniff cocaine after attending a party with his father and Sotelo had used cocaine around the child. He had deliberately violated court orders on two separate occasions, necessitating court intervention. As a result of the December 2003 incident, Adam missed a month of school in January 2004.

We acknowledge that the evidence shows that Sotelo frequently exercised his visitation and was perceived to be a good father by friends and family. And while the social worker suggested that Adam live with his father, there was evidence that Adam’s visits with Sotelo resulted in disruptive or uncharacteristic behavior. See De La Pena, 999 S.W.2d at 533. It was the responsibility of the trial court to determine the weight to be given to testimony and to resolve any conflicts. Because there is sufficient evidence of a substantive and probative character to support the appointment of Rose Cartwright as a joint managing conservator with the exclusive right to determine residency, we conclude that the trial court’s ruling was neither arbitrary nor unreasonable. Sotelo’s sole point is overruled and the judgment of the trial court is affirmed.


text:
    YSLETA INDEPENDENT SCHOOL DISTRICT, Appellant, v. Jose GRIEGO, Appellee.
    No. 08-05-00056-CV.
    Court of Appeals of Texas, El Paso.
    July 28, 2005.

      M. Mitchell Moss, Scott, Hulse, Marshall, Feuile, Finger & Thurmond, P.C., El Paso, for Appellant.
    Mark Berry, El Paso, for Appellee.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, and PARKS (sitting by assignment), JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

The Ysleta Independent School District appeals the denial of its motion to dismiss for lack of jurisdiction. This is an accelerated interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We reverse and render.

FACTUAL SUMMARY

Jose Griego was employed as a counsel- or at the Ysleta Independent School District (YISD) until 2004 pursuant to a term contract. By letter dated March 10, 2004, YISD notified Griego of the proposed non-renewal of his contract pursuant to Section 21.206 of the Texas Education Code. Grie-go requested the assignment of a certified hearing examiner and a hearing was conducted on May 17, 18, and 19. On July 2, the hearing examiner issued findings of fact and conclusions of law and recommended non-renewal. The report included a finding that Griego had violated district policies and Family Code Section 261.101 by failing to report suspected child abuse or neglect, and had only minimally cooperated in a police investigation into the abuse. On July 21, the Board of Trustees adopted the hearing examiner’s recommendation and voted for non-renewal. Griego did not file an appeal to the Commissioner of Education.

Griego then sued YISD alleging he was terminated because he cooperated in good faith with an investigation by a governmental entity relating to an allegation of child abuse or neglect. YISD filed a general denial and raised the affirmative defense of Griego’s failure to exhaust administrative remedies. It then filed a motion to dismiss for lack of jurisdiction based on that defense. The trial court denied the motion.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action. Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex.App.-Waco 2000, no pet.). Subject matter jurisdiction is a legal question which we review de novo. Id.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Under the Term Contract Nonre-newal Act, the Legislature created an administrative procedure by which a school teacher who is employed under a term contract may seek judicial review of a district’s decision not to renew the contract. Brown v. Amarillo Indep. Sch. Dist., — S.W.3d —, —, 2005 WL 331570, at *1 (Tex.App.-Amarillo 2005, no pet.)(not yet released for publication). If the teacher desires a hearing after receiving notice of the proposed nonrenewal, the teacher shall notify the Board of Trustees in writing not later than the fifteenth day after the date the teacher receives the notice of the proposed action. The Board must provide a hearing to be held not later than the fifteenth day after the date the Board receives the request unless the parties otherwise agree in writing. Tex.Educ.Code Ann. §§ 21.207(a), 21.253(a)(Vernon 1996 & Vernon Supp.2004-05). If a hearing is requested, the Board must take the appropriate action to renew or not renew the contract and notify the teacher in writing not later than the fifteenth day after the date on which the hearing is concluded. Tex.Educ.Code Ann. § 21.208(b). A teacher who is aggrieved by a decision of the Board on nonrenewal may appeal to the Commissioner of Education. Tex.Educ. Code Ann. §§ 21.209, 21.301. The Commissioner’s decision may then be appealed to (1) a district court in the county in which the district’s central administrative offices are located or (2) if agreed by all parties, a district court in Travis County. Tex.Educ.Code Ann. § 21.307.

By statute, professionals are required to report suspected acts of child abuse or neglect. Tex.Fam.Code Ann. § 261.101(b)(Vernon 2002).

(b) An employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who is a professional and who in good faith:
(1) reports child abuse or neglect to:
(A) the person’s supervisor;
(B) an administrator of the facility where the person is employed;
(C) a state regulatory agency; or
(D) a law enforcement agency; or
(2) initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse or neglect.

Tex.Fam.Code Ann. § 261.110(b). A person whose employment is suspended or terminated or who is otherwise discriminated against in violation of this Section may sue for injunctive relief, damages, or both. Tex.Fam.Code Ann. § 261.110(c). A public employee who alleges a violation of Section 261.110 may sue the employing state or local governmental entity for the relief provided for by this Section, and sovereign immunity is waived to the extent of liability created by this section. Tex. Fam.Code Ann. § 261.110(f). A suit under this section may be brought in a district or county court of the county in which: (1) the plaintiff was employed by the defendant; or (2) the defendant conducts business. Tex.Fam.Code Ann. § 261.110(j).

Texas requires that an aggrieved party must first exhaust all remedies provided under the statutory administrative scheme if the subject matter: (1) concerns the administration of school laws, and (2) involves questions of fact. Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570 (1945). Requiring exhaustion of administrative remedies is not meant to deprive an aggrieved party of any legal rights. It is meant, rather, to provide an orderly procedure by which aggrieved parties may enforce those rights. Hinojosa v. San Isidro Indep. Sch. Dist., 273 S.W.2d 656, 657-58 (Tex.Civ.App.-San Antonio 1954, no writ). An employee who alleges that a school district wrongfully terminated an employment contract must apply to the school authorities for relief before filing suit in the district court. Id. at 658. Texas law gives the Commissioner of Education the power to reverse a termination or contract nonre-newal on appeal. Id.

On appeal, YISD argues that Grie-go failed to exhaust his administrative remedies. In support of this argument, it directs us to Jones v. Dallas Independent School District, 872 S.W.2d 294 (Tex.App.Dallas 1994, writ denied) and Barrientos v. Ysleta Independent School District, 881 S.W.2d 159 (Tex.App.-El Paso 1994, no writ). In Jones, a special education teacher participating in an alternative certification program was denied certification by the review committee. Id. at 295. Jones sued the school district alleging the decision was made in retaliation for her filing a workers’ compensation claim. Id. The trial court dismissed her claim for want of jurisdiction. Id. Jones appealed, arguing that she had no duty to exhaust administrative remedies since she sued under the retaliatory discharge provision of the Texas Workers’ Compensation Act. Id. The Dallas Court of Appeals opined that a school employee who alleges that she has been wrongfully terminated must apply to the school authorities for relief before seeking the jurisdiction of a district court. Id. The court found that whether the school district’s decision not to recommend Jones for certification and placement was in response to her workers’ compensation claim was a question of fact and that any factual dispute regarding school administration must first be submitted to the school authorities unless the claim qualifies as an “exception” to the rule. Id. Since no exception applied and since Jones failed to exhaust her administrative remedies, the trial court did not have jurisdiction to entertain her claim.- Id. at 297.

In Barrientos, a teacher was reassigned from a second grade level to a sixth grade level. 881 S.W.2d at 160. Barrientos sued, alleging she was transferred for retaliatory reasons. Id. YISD argued that Barrientos was required to exhaust all administrative remedies under Section 11.13 of the Texas Education Code, the predecessor of Section 7.057. Id. Section 11.13 provided a comprehensive administrative appeal process for “persons having any matter of dispute among them arising under the school laws of Texas.” Id. We stated that “[w]hen a teacher is being terminated, questions of fact are involved and must be appealed to administrative authorities before the teacher resorts to the courts.” Id. We decided that Barrientos’s allegations raised questions of fact, such as the reasonableness of the principal’s decision to reassign her to the sixth grade and whether the principal had any retaliatory motive in making the reassignment. Id. We concluded that since Barrientos had not shown any of the exceptions to exhausting administrative remedies applied and since she had not exhausted administrative remedies, the trial court did not have jurisdiction over her claims. Id. at 161.

Griego responds that there is no requirement in the Family Code that he must first exhaust his administrative remedies. He complains that Section 11.13 of the Texas Education Code has been repealed and replaced by Section 7.057, in which the Legislature made clear that the new section was not intended to deny employees other remedies. Griego contends that he is not contesting the “school laws of [the] state” nor an action by the Ysleta School Board concerning the “school laws of [the] state” or “a provision of a written employment contract.” Instead, he is contesting employer retaliation under Section 261.110 of the Family Code. Greigo maintains that he must only exhaust administrative remedies if his complaint involves school laws or an employment contract, which is not the case here. We disagree.

Griego was a term contract employee of YISD. He was notified of the proposed nonrenewal of his contract for numerous reasons, including his failure to properly report an allegation of child abuse. He duly requested the assignment of a certified hearing examiner and he was afforded a hearing. The hearing examiner recommended non-renewal of his contract and specifically found that Griego had failed to report suspected child abuse or neglect, had responded only minimally to a police investigation, and had violated Family Code Section 261.101. The Board properly notified Griego of its decision to non-renew his contract. Griego’s next remedy was to appeal the board decision to the Commissioner of Education. See Tex. Educ.Code Ann. § 21.209.

We conclude that Griego cannot maintain a cause of action for employer retaliation. See Tex.Fam.Code Ann. § 261.110. The Legislature has specified that the administrative remedies set out in the Education Code apply to counselors who are contractual employees. Tex.Educ.Code Ann. §§ 21.201(1); 21.209; 21.301. Because Griego was required to first exhaust his administrative remedies under Chapter 21 of the Education Code before pursuing his action for employer retaliation under the Family Code, the trial court lacked jurisdiction. We sustain the issue for review, reverse and render judgment dismissing the suit.

      . "Teacher” is defined in the Act as including a superintendent, principal, supervisor, classroom teacher, nurse, counselor, or other full-time professional employee who is required to hold a certificate. See Tex.Educ.Code Ann. § 21.2010.

      . "Professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties has direct contact with children. Tex.Fam.Code Ann. § 261.101(b).

      . Section 7.057 provides: A person may appeal in writing to the commissioner if the person is aggrieved by:(l) the school laws of this state; or (2) actions or decisions of any school district board of trustees that violate: (A) the school laws of this state; or (B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee. Tex. Educ.Code Ann. § 7.057(a). This section does not deprive any parly of any legal remedy. Id. at § 7.057(b). This section does not apply to a case under Subchapter G, Chapter 21. Id. at § 7.057(e)


author: ANNE GARDNER, Justice.

text:
    Phillip DALE, Appellant, v. The STATE of Texas, State.
    No. 2-03-328-CR.
    Court of Appeals of Texas, Fort Worth.
    July 28, 2005.

      Robert G. Estrada, Wichita Falls, TX, for Appellant.
    Barry L. Macha, Criminal District Atty., and John Brasher, Asst. District Atty., Wichita Falls, TX, for Appellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted on eight counts of aggravated sexual assault involving two alleged victims. Counts I through Y involved the same complainant, who was identified by pseudonym as 0020. Counts VI through VIII involved another complainant, who was identified by pseudonym 0020-A. Both complainants were the stepchildren of Appellant and were younger than seventeen years of age. Appellant pleaded no contest to each count of the indictment. Following the presentation of evidence, the trial court sentenced Appellant to fifty years’ confinement on each of counts I through V, which were ordered to run concurrently. Appellant was also sentenced to twenty years’ confinement on each of counts VI through VIII, which were likewise ordered to run concurrently. However, the trial judge also ordered that the sentences pertaining to counts VI through VIII run consecutively with the sentences in counts I through V. In two points, Appellant argues that his punishment was excessive and that the trial court’s cumulative order was improper. We affirm.

Factual and PROCEDURAL Background

Because Appellant does not challenge the sufficiency of the evidence, we need only briefly discuss the facts of this case. The record shows that Appellant married the complainants’ mother, Amy Triplet, in August 1991. The complainants were Triplet’s daughter and son from a previous marriage and were between approximately four and seven years old when Triplet married Appellant. The complainants were identified by the use of a pseudonym. Triplet’s daughter was identified by pseudonym 0020, and Triplet’s son was identified by pseudonym 0020-A. The evidence showed that shortly after Triplet and Appellant married, Appellant began to routinely sexually assault both complainants separately. This abuse lasted throughout the marriage and spanned a period of approximately seven years.

Punishment

In his first point, Appellant argues that his punishment was excessive. Appellant states that he presented mitigating evidence, including his lack of a criminal history, his character for honesty and integrity, his stable employment, and his family background, and he argues that he is a good subject for treatment instead of confinement. Therefore, he contends that his sentences, even though within the statutory range, are excessive. Appellant also argues that his sentences violate the Eighth Amendment’s prohibition against sentences that are grossly disproportionate to the offense.

A. Excessiveness

Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment. Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973); Alvarez v. State, 63 S.W.3d 578, 580 (Tex.App.-Fort Worth 2001, no pet.).

Appellant pleaded no contest to eight counts of aggravated sexual assault, a first degree felony punishable by imprisonment for life or “for any term of not more than ninety-nine years or less than five years” and up to a $10,000 fine. See Tex. Penal Code Ann. § 12.32 (Vernon 2003), § 22.021 (Vernon Supp.2004-05). Thus, Appellant faced a possible life sentence on each count. Additionally, there is no indication in the record that the trial court did not take into consideration the mitigating evidence introduced by Appellant. Therefore, based on the record, we hold that Appellant’s sentences are not excessive in that they do not exceed the statutory limits.

B. Proportionality

A narrow exception to the general rule that a sentence within the statutory limits is not excessive, cruel, or unusual is recognized when the sentence is grossly disproportionate to the offense. Alvarez, 63 S.W.3d at 580; see Moore v. State, 54 S.W.3d 529, 542 (Tex.App.-Fort Worth 2001, pet. ref'd); see also Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).

The Supreme Court has identified three criteria to be used to evaluate the proportionality of a particular sentence. Alvarez, 63 S.W.3d at 580-81; see Solem, 463 U.S. at 292, 103 S.Ct. at 3011. They are (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions. Alvarez, 63 S.W.3d at 581. In a proportionality analysis, we first make a threshold comparison of the gravity of the offense against the severity of the sentence. Id. We judge the gravity of the offense in light of the harm caused or threatened to the victim or society and the culpability of the offender. Id. Only if we determine that the sentence is grossly disproportionate to the offense do we consider the remaining Solern factors. Id.

The evidence showed that Appellant committed these offenses by penetrating the sexual organ, mouth, and anus of pseudonym 0020 with his sexual organ; causing the mouth of pseudonym 0020 to contact his sexual organ; penetrating the sexual organ of pseudonym 0020 with his tongue; penetrating the mouth of pseudonym 0020-A with his sexual organ; causing the mouth of pseudonym 0020-A to contact his sexual organ; and causing the sexual organ of pseudonym 0020-A to penetrate Appellant’s anus. These acts were done over a span of approximately seven years and occurred on a weekly, and sometimes daily, basis. Therefore, given not only the nature of these offenses, but also the regularity with which they occurred, we conclude that Appellant’s sentences are not grossly disproportionate to the offenses. Appellant’s first point is overruled.

Consecutive Sentences

In his second point, Appellant argues that the trial court erred in ordering that his sentences in counts VI through VIII run consecutively to his sentences in counts I through V. Appellant argues that penal code section 3.03(b) allows consecutive sentencing of certain offenses only when there is a single victim.

A trial court may consolidate cases for trial when the charged offenses arise out of the same criminal episode. Salazar v. State, 127 S.W.3d 355, 363-64 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); see Tex. Penal Code Ann. § 3.02(a) (Vernon 2003). Ordinarily, when a defendant has been convicted of multiple offenses that have been properly joined and prosecuted in a single trial, the sentences must run concurrently. Owens v. State, 96 S.W.3d 668, 671 (Tex.App.-Austin 2003, no pet.); see Tex. Penal Code Ann. § 3.03(a). There are, however, statutory exceptions to this rule that allow courts to impose consecutive sentences in certain circumstances or for certain offenses. Owens, 96 S.W.3d at 671; see Tex. Penal Code Ann. § 3.03(b). These exceptions were enacted in 1997 when the legislature amended section 3.03 of the penal code and were specifically made nonretroactive. Owens, 96 S.W.3d at 671; see Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 7, 1997 Tex. Gen. Laws 2250, 2252-53. The exception pertinent to this case allows courts to impose consecutive sentences for certain sexual offenses, including aggravated sexual assault of a child. Owens, 96 S.W.3d at 671; see Tex. Penal Code Ann. § 3.03(b)(2)(A). Section 3.03(b)(2) states in relevant part,

If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(2) an offense:
(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against

Tex. Penal Code Ann. § 3.03(b)(2)(A).

Appellant contends that the language of the statute authorizes consecutive sentencing only in offenses against the same victim. Therefore, he argues that because this case involved two victims, the statute did not authorize the trial court to order Appellant’s sentences to run consecutively.

This issue was recently addressed by one of our sister courts. See Salazar, 127 S.W.3d at 364-65. In Salazar, the court stated,

In construing a statute, we must give effect to the plain meaning of the text unless the text is ambiguous or the plain meaning would lead to absurd results. Parfait v. State, 120 S.W.3d 348, 349 (Tex.Crim.App.2003). Once again, section 3.03(b) provides “[i]f the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of [an offense] under Section ... 22.021 ... against a victim younger than seventeen years of age.... ” Tex. Penal Code Ann. § 3.03(b). Thus, the statute requires that “each sentence” be for an offense against “a victim younger than 17 years of age.” There is no language in the section supporting appellant’s preferred interpretation that all of the sentences must be for offenses against the same victim. To the contrary, so long as the victim of each of the offenses was under 17, the requirements of the statute’s plain language are clearly met. Cf. Prudhomme v. State, 47 S.W.3d 683, 691-92 (Tex.App.-Texarkana 2001, pet. ref'd) (interpreting section 3.03(b)(2)(A) as applying when the alleged offenses were against multiple complainants); Hill v. State, No. 12-01-00356-CR, 2003 WL 292316 (Tex.App.-Tyler February 12, 2003, no pet.) (not designated for publication) (same). This interpretation is bolstered by the fact that a criminal episode is defined in section 3.01 to potentially encompass offenses against more than one person. See Tex. Penal Code Ann. § 3.01.

Id.

We agree with the court’s analysis in Salazar. Accordingly, we hold that the trial court did not err in ordering consecutive sentences in this instance. We overrule Appellant’s second point.

Conclusion

Having overruled Appellant’s points, we affirm the trial court’s judgment.

      . A "criminal episode” is defined as
      the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
      (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
      (2) the offenses are the repeated commission of the same or similar offenses. a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section....

        Tex. Penal Code Ann. § 3.01.

      . Each count of the indictment alleged that the crime occurred "on or about the 1st day of January, 1998.” Therefore, the State was permitted to prove a date other than the one alleged in the indictment as long as the date was anterior to the presentment of the indictment and within the statutory limitation period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). However, in order for the trial court to impose consecutive sentencing under penal code section 3.03(b), there had to be some evidence that Appellant committed the offenses after September 1,1997, the effective date of this section. See Owens, 96 S.W.3d at 672. The State offered evidence that the offenses occurred frequently, beginning shortly after Appellant and Triplet married in August of 1991 and ending in 1998. Appellant does not contend that the sexual assaults did not continue after September 1, 1997. Appellant’s sole challenge to the consecutive sentencing is that it should not apply in a situation where there is more than one victim.