author: Justice WHITTINGTON.

text:
    Steven F. BRIGHT, Steven F. Bright, P.C., Crysta Entertainment, N.V., and Graham, Bright & Smith, P.C., Appellants, v. Howard ADDISON, Charles B. Lowe, and Questcom, Inc. f/k/a Quest Wireless Communications, Inc., Appellees.
    No. 05-04-00170-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 3, 2005.
    Rehearing Overruled Sept. 28, 2005.

      R. Spencer Shytles, Gary E. Smith, Graham, Bright & Smith P.C., G. Leroy Street, Street & Rudy, LLC, Dallas, for Appellants.
    Edward P. Perrin, Jr., C. Christian Fre-deriksen, Jr., Hallett & Perrin, P.C., Dallas, for Appellees.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

After a trial before the court, the trial judge found appellants had usurped appel-lees’ opportunity to manage a casino in Aruba. Steven F. Bright, Steven F. Bright, P.C., Crysta Entertainment, N.V., and Graham, Bright & Smith, P.C. appeal the trial court’s judgment awarding Howard Addison, Charles B. Lowe, and Quest-com, Inc. f/k/a Quest Wireless Communications, Inc. damages for breach of fiduciary duty, interference with prospective business relations, usurpation of business opportunity, and fraud. Bright, Steven F. Bright, P.C., and Crysta, in forty-four issues, urge reversal of the trial court’s judgment. In nine issues, Graham, Bright & Smith, P.C. also urges reversal of the trial court’s judgment. We affirm.

BACKGROUND

Appellees Addison, Lowe, and Quest-Corn sued appellants for usurping a business opportunity to manage a casino in Aruba. Appellant Bright is an attorney who practiced law as a member or shareholder of appellant professional corporations Steven F. Bright, P.C. and Graham, Bright & Smith, P.C. Appellant Crysta Entertainment N.V. is an Aruban corporation set up by Bright through which to manage the casino. Bright, Steven F. Bright, P.C., and Crysta Entertainment N.V. filed a joint brief on appeal and will be referred to as the Bright appellants. Graham, Bright & Smith, P.C. filed a separate brief on appeal and will be referred to as GB & S. The parties dispute most of the facts material to their claims. Because many of appellants’ issues challenge the sufficiency of the evidence, we will not summarize facts here but will review the evidence relevant to particular issues as we address them.

STANDARDS OF REVIEW

The Bright appellants raise issues challenging whether the evidence adduced at trial supports the trial judge’s findings. A party who challenges the legal sufficiency of the evidence to support an issue upon which he did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex.App.-Dallas 2000, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)). When reviewing a “no evidence” point, we determine “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.,2005).

A trial judge’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency of the evidence. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996)(per curiam). When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.Dallas 2001, no pet.) (citing Croucher, 660 S.W.2d at 58). In reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the finding, and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)(per curiam).

In making this review, we are not a fact finder. Thus, we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Holmes, 62 S.W.3d at 329; Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Barnett v. Coppell North Texas Court, Ltd., 123 S.W.3d 804, 813-14 (Tex.App.Dallas 2003, pet. denied).

Appellants also challenge the constructive trust imposed and the declaratory judgment entered by the trial judge, as well as the admission of expert testimony. We review these rulings for abuse of discretion. See Medford v. Medford, 68 S.W.3d 242, 249 (Tex.App.-Fort Worth 2002, no pet.)(whether constructive trust should be imposed is within discretion of trial court); Ter-Vartanyan v. R & R Freight, Inc., 111 S.W.3d 779, 781 (Tex.App.-Dallas 2003, pet. denied) (evidentiary rulings, including rulings on expert testimony, reviewed for abuse of discretion); Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex.1995)(trial court has discretion to enter declaratory judgment as long as it will serve useful purpose or will terminate the controversy between the parties). The trial court abuses its discretion only if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Finally, appellants challenge the award of punitive damages. We will discuss the relevant standards of review when we address the issues relating to the award of punitive damages.

BREACH OF FIDUCIARY DUTY

In their first three issues, the Bright appellants challenge the legal and factual sufficiency of the evidence supporting the trial judge’s findings that they owed fiduciary duties to appellees, breached those duties, or failed to act in good faith in acquiring rights in the Aruba casino. Appellees urge Bright was their lawyer, and as their lawyer, owed them fiduciary duties. Bright contends he was their business associate but never their attorney.

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for the client. Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex.App.Houston [1st Dist.] 1999, pet. denied). The relationship may be expressly created through a contract or it may be implied from the actions of the parties. Honey-cutt, 992 S.W.2d at 581. To determine whether there was a meeting of the minds, a fact finder uses an objective standard examining what the parties said and did and does not look at their subjective states of mind. Roberts v. Healey, 991 S.W.2d 873, 880 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

There was evidence Bright acted both as appellees’ attorney and as their business associate. Bright points to the evidence showing he oversaw construction at the casinos, purchased furniture, bought equipment, met with contractors, and undertook other activities relating to the operation of the casinos. Appellees point to evidence Bright incorporated corporations, conducted due diligence, negotiated contracts, worked on licensing issues, advised on regulatory issues, and other activities related to the practice of law.

All parties point to Bright’s billing as supporting their arguments. Bright argues his invoices were consistent with the “consulting fees” agreed to in a non-binding term sheet signed by the parties to invest in and operate a casino in the Costa Caribe Hotel in Juan Dolio, Dominican Republic, and did not represent legal work he undertook for appellees. Appellees point to the designation on the bills for “professional services,” and argue the only “professional services” Bright could offer were legal services. The bills were on Graham, Bright & Smith, P.C. letterhead. Appellees’ funds were deposited into Graham, Bright & Smith P.C.’s client trust account.

Although Bright maintains most of his activities on Addison and Lowe’s behalf were not legal services, he did admit at trial that some of the work he performed for Addison and Lowe was legal work; he was uniquely qualified to perform certain work for Addison and Lowe because he was a lawyer; and his consulting fee did cover some activity he would describe as normal legal work. He admitted he advised Addison and Lowe regarding the attorney-client privilege. Lowe and Addison both testified they retained Bright as their lawyer. After working with Bright for several months, Lowe sent Bright an engagement letter, based on Bright’s advice about preserving the attorney-client privilege. The letter was written on behalf of all appellees. Bright did not respond to the letter or advise appellees they were mistaken about the nature of the relationship between them. Although the term sheet provided the parties would enter into a shareholders’ agreement, agreement on the terms was never reached and no written agreement was ever signed creating a contractual relationship among the parties as joint shareholders. After a review of the record, we hold there was legally and factually sufficient evidence to support the trial judge’s finding of an attorney-client relationship between Bright and appellees.

The relationship existing between attorney and client is characterized as “highly fiduciary,” and requires proof of “perfect fairness” on the part of the attorney. See Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 22 (Tex.App.-Tyler 2000, pet. denied) (citing Archer v. Griffith, 390 S.W.2d 735, 739 (Tex.1964)). As appellees’ attorney, Bright owed them the duty of full disclosure. Chappell, 37 S.W.3d at 22. As noted in Chappell, “[a] fiduciary has much more than the traditional obligation not to make any material misrepresentations; he has an affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes.” Chappell, 37 S.W.3d at 22 (citing Montgomery v. Kennedy, 669 S.W.2d 309, 312-14 (Tex.1984)). The breach of the duty of full disclosure by a fiduciary is tantamount to fraudulent concealment. Chappell, 37 S.W.3d at 22 (citing Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988)). The parties agree that Bright did not tell appellees about the availability of the Aruba opportunity until after he had begun managing the Aruba casino himself and appellees learned about it from another source. Appellees contend Bright was, or should have been, acting on their behalf when he undertook to manage the Aruba casino, while Bright contends appellees decided not to invest in any new projects, and stopped paying Bright’s invoices, months before the opportunity to manage the Aruba casino became available. We hold there was legally and factually sufficient evidence to support the trial judge’s finding Bright breached fiduciary duties to appellees.

In their thirteenth issue, the Bright appellants challenge the legal and factual sufficiency of the trial court’s finding that Bright usurped a business opportunity of appellees. The Bright appellants argue this finding is based upon the same factual and legal elements as appellees’ claim for breach of fiduciary duty, and rely on their arguments and authorities relating to fiduciary duty in support of their thirteenth issue. We therefore overrule the Bright appellants’ thirteenth issue as well as their first, second, and third issues.

Negligence

In their fourth and fifth issues, the Bright appellants challenge the legal and factual sufficiency of the evidence to support the trial judge’s findings that Bright owed and breached a duty of care to appellees. In a negligence action, an attorney is held to the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989); Rodgers v. Weatherspoon, 141 S.W.3d 342, 345 (Tex.App.-Dallas 2004, no pet.) As discussed above, there was legally and factually sufficient evidence to support the trial judge’s findings Bright, as an attorney, owed a fiduciary duty to appellants, and breached that duty. We therefore overrule the Bright appellants’ fourth and fifth issues.

INTERFERENCE WITH PROSPECTIVE CONTRACT

The Bright appellants challenge the legal and factual sufficiency of the evidence to support the trial judge’s findings regarding Bright’s intentional interference with appellees’ prospective business relationship. Appellees contend the Aruba opportunity was part of a three-casino “package deal” with the Allegro Corporation. Bright contends the Aruba opportunity was presented separately from the deals for the other two casinos. After Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex.2001), courts have adopted the following elements to determine whether interference with contractual relations has occurred: (1) a reasonable probability that the parties would have entered into a contractual relationship; (2) an “independently tortious or unlawful” act by the defendant that prevented the relationship from occurring; (3) the defendant acted with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant’s interference. COC Services, Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex.App.-Dallas 2004, pet. filed).

Appellees presented evidence the Allegro Resorts Corporation sent out a request seeking proposals for the management of three casinos it or its subsidiaries owned. The three casinos were Jack Tar Village, located in Puerto Plata, Dominican Republic, the Turks & Caicos casino, located on the Turks & Caicos Islands, and the Aruba Palm Beach casino, located in Aruba. Both Allegro’s President, Benny Guevara, and its general counsel, Kent Richey, testified regarding the request for proposal. These witnesses testified to Allegro’s desire to have a single group managing all three casinos, both to “simplify matters” for Allegro and to provide incentive to the management group “that if they lose money in one casino but they make it up in another casino, they’ll still be willing to continue to operate with us.” Minutes from meetings of Allegro’s board of directors confirmed Guevara’s and Richey’s testimony. Bids “had been obtained from various casino operators to operate the Corporation’s casinos in Puerto Plata, Turks & Caicos and Aruba.” A board member “recommended a group led by Steve Bright, a Texas lawyer, and including Bill Martindale (formerly of Global Casinos), Charles Lowe and Howard Addison.”

Allegro entered into agreements with appellees for the Jack Tar and Turks & Caicos casinos. Richey testified he used the same management agreement for all three casinos, sending them to Bright for signature. Richey also testified that when he sent the agreement for the Aruba casino to Bright, Bright told him Addison and Lowe were not interested in investing in it because they were losing money in the other two casinos. Bright told Richey he would take the deal for himself and would let Addison and Lowe in on the deal later if they wanted to participate. Richey testified if he had known Addison and Lowe had not been advised of the opportunity, he would have contacted them to discuss whether they wanted to participate.

Addison and Lowe both testified they were not made aware of the opportunity to manage the Aruba casino until after Bright had begun managing it. Lowe received an e-mail from Richey asking for monthly profit and loss reports for all three casinos, including Aruba. Lowe and Addison then met with Richey and learned Bright had been operating the Aruba casino for three months. Bright admitted he did not tell Addison and Lowe about the availability of the opportunity when it arose and before he took the opportunity for himself; he is “absolutely sure that I did not” tell Lowe he was managing the Aruba casino because “it’s none of their business.” Lowe testified he continued to meet with Bright in the time period between Bright’s signing of the Aruba contract and Lowe’s learning of it, and further testified Bright continued to tell him the Aruba casino was unavailable.

Bright points to evidence Guevara and Richey were not absolutely sure the Aruba casino was included in the request for proposal; the request for proposal was not included in the evidence at trial; and the Aruba casino would not have been included in a package to provide incentives for profit when the other casinos were losing money, because at the time the projections for the other two casinos were also showing a profit. He argues Lowe and Addison were ambivalent about the Aruba opportunity and had terminated their relationship with Bright by the time it arose. The trial judge’s findings of interference, based on appellees’ evidence there was a reasonable probability Allegro would have entered into a third contract with appellees absent Bright’s fraud and breach of fiduciary duty, is not “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain, 709 S.W.2d at 176. We hold there was legally and factually sufficient evidence to support the trial judge’s findings of Bright’s intentional interference with appellees’ prospective business relationship with Allegro with respect to the Aruba casino, and overrule the Bright appellants’ sixth, seventh, and eighth issues.

FRAUD

The Bright appellants next challenge the legal and factual sufficiency of the trial judge’s findings relating to appel-lees’ claims of fraud. As noted above, Bright concealed from appellees the availability of the opportunity to invest in and manage the Aruba casino, and owed a fiduciary duty to Addison and Lowe to disclose this information. See Chappell, 37 S.W.3d at 22. This failure to disclose constitutes fraud. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex.1997) (fraud by non-disclosure is subcategory of fraud because, where a party has a duty to disclose, non-disclosure may be as misleading as positive misrepresentation of facts).

Bright argues there is insufficient evidence of appellees’ reliance or that his fraud was the proximate cause of damage to appellees. Lowe testified he continued to inquire as to the availability of the Aruba casino and was told by Bright there were still issues to be resolved as to licensing. Lowe also testified he felt he had made a commitment to the funding of all three casinos and never told Bright he was not interested in investing in the Aruba casino. He testified he had sufficient cash on hand to satisfy any commitment to invest in the Aruba casino. He also testified that at Richey’s request, he and Addison made efforts to negotiate with Bright to become a part of the Aruba investment after they learned Bright had begun to manage the casino. Allegro terminated the contract with Crysta, however, because of Crysta’s failure to comply with the contract’s terms regarding the casino’s bank accounts. Appellees lost the opportunity to invest in the Aruba casino at the time Allegro made it available. Appellees presented evidence regarding the damage suffered from the loss of the opportunity to invest in and manage the Aruba casino, discussed in detail below. We overrule the Bright appellants’ issues nine through twelve.

In issues seventeen through twenty-two, the Bright appellants urge there was legally and factually insufficient evidence to support a finding of a causal connection between their conduct and appellees’ damages. We hold there was legally and factually sufficient evidence to support the trial judge’s findings and conclusions that Bright’s conduct was the proximate cause of damage to appellees, for the reasons discussed under Bright’s challenges to the various causes of action. We overrule the Bright appellants’ seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second issues.

CONSTRUCTIVE TRUST

In their fourteenth, fifteenth, and sixteenth issues, the Bright appellants challenge the constructive trust imposed by the trial court. The judgment imposes a constructive trust in favor of Addison and Lowe on Crysta and all its assets. The Bright appellants contend there is no dispute the money used to incorporate Crysta, to purchase the management contract for the Aruba casino, and to open and operate the Aruba casino did not come from appellees. A constructive trust, appellants argue, can only be imposed on wrongfully acquired property.

Appellees contend the constructive trust was proper because Crysta’s only function was to obtain the contract to manage the Aruba casino and operate it. Crysta holds contractual rights and entitlements, appel-lees argue, that rightfully belong to Addison and Lowe. Because the trial judge found the casino opportunity and the management agreement were the property of Addison and Lowe, appellees argue, the constructive trust was proper.

Actual fraud as well as breach of a confidential relationship justifies the imposition of a constructive trust. Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974). As noted by the supreme court in Meadows:

Constructive trusts, being remedial in character, have the very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. A transaction may, depending on the circumstances, provide the basis for a constructive trust where one party to that transaction holds funds which in equity and good conscience should be possessed by another. Moreover, there is no unyielding formula to which a court of equity is bound in decreeing a constructive trust, since the equity of the transaction will shape the measure of the relief granted.

Meadows, 516 S.W.2d at 131 (citations omitted). Whether a constructive trust should be imposed is within the discretion of the trial court. Medford, 68 S.W.3d at 249.

We have held there is legally and factually sufficient evidence to support the trial judge’s findings of breach of fiduciary duty and fraud. The trial judge also found the casino management agreement between Crysta and Allegro was the property of Addison and Lowe. The evidence showed Bright formed Crysta for the purpose of entering into the contract with Allegro to manage the Aruba casino. Allegro subsequently terminated the contract, and Crys-ta has filed three lawsuits in Aruba and Florida to enforce its rights under the contract. Crysta holds rights and assets of Addison’s and Lowe’s. Even though Addison’s and Lowe’s funds were not used for the initial capital for Crysta, Crysta “holds funds which in equity and good conscience should belong to another.” See Meadows, 516 S.W.2d at 131. The trial court’s judgment imposes the constructive trust on specific, identifiable property. See Meadows, 516 S.W.2d at 129 (constructive trust on unidentifiable cash proceeds inappropriate); see also Omohundro v. Matthews, 161 Tex. 367, 380, 341 S.W.2d 401, 410 (Tex.1960) (constructive trust appropriate where three parties agreed to share equally in royalty interest even though no evidence any of three put money into venture). The trial judge did not abuse his discretion in imposing the constructive trust.

The Bright appellants also contend the constructive trust acts as a double recovery. The trial judge, however, entered an amended judgment providing any value recovered by appellees through the constructive trust shall be credited to the amounts owed on the judgment for past and future lost profits. We overrule issues fourteen, fifteen, and sixteen.

ExpeRt Testimony

The Bright appellants challenge appel-lees’ expert testimony on lost profits on several grounds. In their twenty-third through thirty-first issues, the Bright appellants allege appellees’ expert witness was not qualified; the expert’s methodology and opinions were unreliable; lost profits were not proven with a reasonable degree of certainty; and the evidence was legally and factually insufficient to support the trial court’s award of damages.

The Bright appellants first argue appellees’ expert Rodney Sowards was not qualified to testify as an expert on lost profits from the operation of a casino in Aruba. The Bright appellants contend So-wards had very limited experience with casinos and tourism, and lacked the appropriate experience and training in international transactions. Citing Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex.1998), the Bright appellants argue So-wards was not an expert on the subject of his testimony in this case, and thus was not qualified to offer an expert opinion on lost profits from the Aruban casino.

Appellees’ evidence showed Sowards is a certified public accountant licensed in Texas. He testified he has performed hundreds of lost profits evaluations in the course of his sixteen-year career. He was retained by the Resolution Trust Company to evaluate two casinos in Arizona and New Mexico, analyzing their historical financial performance, budgets, cash flow, and prospects for future profitability. He also evaluated a Las Vegas casino’s plan of reorganization in bankruptcy and prospective cash flow. Further, he reviewed the operations of a casino in Puerto Rico after a manager was accused of improprieties. Sowards testified he had experience in a number of international matters, including analyses of businesses in the Caribbean. Sowards emphasized, however, that the analyses he undertook to determine lost profits in this case were not specific to casinos or international businesses; they were generally accepted in the field of accounting regardless of industry. He testified he used standard, widely-accepted accounting methodologies in reaching his conclusions regarding lost profits, determining revenue and expenses for a particular time period to attempt to “put the injured party in the same financial position they would have been but for the alleged wrongdoing.”

In deciding if an expert is qualified, trial courts “must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001) (quoting Gammill, 972 S.W.2d at 719). There were at least two pretrial hearings on the lost profits evidence proffered by appellees. The trial judge and an associate judge both considered the Bright appellants’ objections to Sowards and other experts designated by appellees to testify as to lost profits. Ap-pellees provided additional evidence for the trial judge’s consideration after he voiced concerns about the qualifications of appellees’ experts and the reliability of their testimony. Although the Bright appellants contend Sowards’s qualifications and experience were inadequate, we conclude the trial judge did not abuse his discretion in finding Sowards qualified to give his opinion regarding lost profits from the Aruban casino.

The Bright appellants also challenge the reliability of Sowards’s testimony. All expert testimony must be based on a rehable foundation to be admissible. See Gammill, 972 S.W.2d at 726 (expert testimony should be shown to be reliable before it is admitted). As noted in Helena Chemical Co., the trial court “should ensure that the opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of the discipline.” Helena Chem. Co., 47 S.W.3d at 499 (quoting Gammill, 972 S.W.2d at 725-26). The Bright appellants specifically challenge Sowards’s use of a correlation between hotel occupancy percentages and a casino’s net revenue to determine expected profits. Sowards opined that as a hotel’s occupancy increased, the net revenue of the casino associated with the hotel would also increase. The Bright appellants point to several examples in Sowards’s analysis in which hotel occupancy percentages were similar but net revenues were different; in one instance revenue was more than double despite similar occupancy percentages. Sowards acknowledged these “outlier” results but testified his figures taken from actual operation of appellees’ hotels and casinos in the Caribbean for over a year demonstrated the correlation nonetheless. Sowards did not disregard these outlier figures; they were included and considered in his analysis with all of the other data. Sowards explained if there were many outliers of large magnitude, there would be no correlation shown by the analysis. Here, however, a correlation was shown despite the outliers.

The Bright appellants further contend Sowards’s opinions do not meet the standards set forth by the Texas Supreme Court for recovery of lost profits; that is, appellees have not established their loss “by competent evidence with reasonable certainty.” See Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994) (quoting Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-99 (1938)). The Bright appellants complain the casino business is too uncertain and dependent upon local government regulation of gambling, location of the casino, length of stay, and other factors to assure a reasonably certain determination of lost profits. The Bright appellants complain Sowards took none of these factors into account in his determination of lost profits. Sowards, however, used actual data in his calculations, including twenty months of actual net revenue data for the Aruba casino itself as well as thirty-nine months of actual hotel occupancy rates for Aruba. He also used thirty-nine months of actual data from appellees’ other three casinos, Costa Caribe, Jack Tar, and Turks & Caicos, including occupancy rates and net revenue. As the trial judge noted, reliance on actual data from an existing business would reflect or take into account all of the factors noted by the Bright appellants. The effects of government regulations, location, occupancy rates, and other factors would be reflected in the actual figures used by Sowards. The trial judge did not abuse his discretion in finding appellees had established lost profits by competent evidence with reasonable certainty. See Tex. Instruments, Inc., 877 S.W.2d at 279.

Finally, the Bright appellants urge the evidence is legally and factually insufficient to support the trial court’s award of actual damages. Their arguments are based upon Sowards’s lack of qualifications and the unreliability of his analysis. We have rejected these arguments, and hold the trial judge did not abuse his discretion in admitting Sowards’s testimony. So-wards’s analysis of lost profits damages in the range of $3.7 to $4.2 million was admissible, and there was legally and factually sufficient evidence to support the trial judge’s finding appellees suffered actual damages in the amount of $3,656,395.00. We overrule the Bright appellants’ issues 23 through 31.

Exemplaey Damages

In their thirty-second through thirty-sixth issues, the Bright appellants challenge the trial judge’s award of exemplary damages. They challenge the legal and factual sufficiency of the evidence supporting the trial judge’s findings of fraud or malice and the amount of the award. They also challenge the imposition of exemplary damages on Crysta and Steven F. Bright, P.C. for the acts of Bright. They challenge the constitutionality of the award and argue it exceeds the statutory cap.

We first consider the Bright appellants’ challenge to the punitive damages award on federal due process grounds. Even if an assessment of punitive damages is not deemed excessive under governing state law, it may violate a party’s substantive due process right to protection from “grossly excessive” punitive damages awards. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 45 (Tex.1998) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). BMW establishes three “guideposts” for determining whether a punitive damages award is unconstitutionally excessive: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between actual and punitive damages; and (3) a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct. Malone, 972 S.W.2d at 45 (citing BMW, 517 U.S. at 574-75,116 S.Ct. 1589).

Under the first guidepost, which the Supreme Court has described as the most important, we should consider whether the harm caused was physical as opposed to economic; the tortious conduct evinced a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, deceit, or mere accident. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). The Bright appellants argue “at most” only the last factor weighs in favor of the award. We agree the harm suffered by appellees was economic and did not involve their health, safety, or financial vulnerability. Bright’s conduct, however, was an intentional breach of his fiduciary duty to his clients. He testified he had no intention of disclosing to appellees he had taken the opportunity to manage the Aruba casino, and there was evidence he affirmatively misrepresented the status of the opportunity to appellees after he usurped it. Although Bright had a duty of “perfect fairness” to appellees, including an “affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes,” see Chappell, 37 S.W.3d at 22, he testified at trial the Aruba opportunity was “none of their business.” The evidence showed Bright acted with intentional malice, trickery, and deceit rather than mere accident. See Campbell, 538 U.S. at 419, 123 S.Ct. 1513.

As to the second guidepost, the Supreme Court noted in Campbell there was “a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish.” Campbell, 538 U.S. at 425, 123 S.Ct. 1513. The trial court awarded $3,656,395.00 in compensatory damages, and punitive damages in the amount of $1,500,000.00 against Bright, $1,500,000.00 against Crysta, $1,500,000.00 against Steven F. Bright, P.C., and $500,000.00 against GB & S. The ratio of actual to punitive damages does not indicate the punitive damages awards were excessive.

As to comparable penalties, the Bright appellants argue the statutory damages cap is $750,000, so that Bright did not have “reasonable notice ... his conduct could result in $4,500,000 in punitive damages.” The statute, however, allows exemplary damages in the amount of two times the amount of economic damages. See Tex Civ. Peac. & Rem.Code Ann. § 41.008(b)(1)(A) (Vernon Supp.2004-05). The trial judge’s award was within this limit.

Regarding the sufficiency of the evidence to support the punitive damages award, appellees were required to prove by clear and convincing evidence that the harm they suffered resulted from fraud, malice, or gross negligence. Tex. Civ. PRAC. & Rem.Code Ann. § 41.003(a) (Vernon Supp.2004-05). In reviewing the evidence for legal sufficiency under the clear and convincing standard, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that its finding was true. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004); see also Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 483 (Tex.App.-Fort Worth 2004, no pet.), citing In re J.F.C., 96 S.W.3d 256, 265 (Tex.2002). We must review all the evidence in the light most favorable to the finding and judgment. Garza, 164 S.W.3d at 623-25; Citizens Nat’l Bank, 142 S.W.3d at 483. We must also disregard all evidence a reasonable factfinder could have disbelieved, but we must consider undisputed evidence even if it does not support the finding. Garza, 164 S.W.3d at 623-25; Citizens Nat’l Bank, 142 S.W.3d at 483. In a factual sufficiency review, we must determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the allegations in the petition were proven. Citizens Nat’l Bank, 142 S.W.3d at 483.

The factors set forth in Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981), provide the framework for our review. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994) (when conducting factual sufficiency review of punitive damage award, court of appeals must detail relevant evidence and explain why evidence does or does not support award in light of Kraus factors); see also Dillard Dept. Stores, Inc. v. Silva, 148 S.W.3d 370, 373 (Tex.2004)(per curiam) (Kraus factors have value in determining reasonableness of exemplary damage award, but not substitute for threshold inquiry whether exemplary damages should be awarded in first place). The Kraus factors include: “(1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of the culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.” Kraus, 616 S.W.2d at 910. As noted above, appellees introduced evidence Bright intentionally breached his fiduciary duty to them, taking advantage of an opportunity that belonged to his clients and deliberately failing to disclose he had taken the opportunity for himself. Especially in light of the “highly fiduciary” relationship between attorney and client, Bright’s intentional fraud offends a public sense of justice and propriety. See Chappell, 37 S.W.3d at 22. There was no evidence of Bright’s remorse, a relevant factor in considering the situation and sensibilities of the parties. See Brosseau v. Ranzau, 81 S.W.3d 381, 396-97 (Tex.App.-Beaumont 2002, pet. denied). The trial judge’s award of punitive damages meets the criteria set forth in Kraus. See Kraus, 616 S.W.2d at 910.

In issue thirty-six, the Bright appellants argue the punitive damages awards against them should be aggregated for determining whether the statutory cap on punitive damages set forth in Chapter 41 of the Texas Civil Practice & Remedies Code has been exceeded. See Tex. Civ. Peac. & Rem.Code Ann. § 41.008 (Vernon Supp.2004-05). In issue thirty-four, they argue the evidence is insufficient to support exemplary damage awards against Crysta and Steven F. Bright, P.C. for the acts of an agent. They make no further argument and cite no authority for these propositions and have therefore waived these issues. See Tex.R.App. P. 38.1(h) (appellant’s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record); see also Brown v. Brown, 145 S.W.3d 745, 754 (Tex.App.-Dallas 2004, pet. denied) (issues not discussed in brief were waived on appeal).

We overrule the Bright appellants’ issues thirty-two through thirty-six.

DECLARATORY RELIEF AND ATTORNEYS’ FEES

The Bright appellants next challenge the award of declaratory relief in the trial court’s judgment, and further challenge the award of attorneys’ fees based upon the declaratory relief. In the final judgment, the trial judge entered a declaratory judgment regarding the parties’ rights in certain corporate entities formed by Bright to operate the casinos in which appellees had an interest. These entities are Envest, Ltd., an offshore holding company; Coral Coast Entertainment, S.A., a Dominican company; Costal, S.A., a Dominican company, and Calfry, Ltd., a Turks & Caicos company. Coral Coast was to operate the Costa Caribe casino located in Jan Dolio, Dominican Republic. Costal was to operate the Jack Tar Village casino located in Puerto Plata, Dominican Republic. Calfry was to operate the Turks & Caicos casino, located on the Turks & Caicos Islands. Each entity was a party to a written contract or lease to operate a specific casino. Each of the three documents was signed by Bright on behalf of Coral Coast, Costal, or Calfry. Coral Coast, Costal, and Calfry are all subsidiaries of Envest. Appellees were shareholders of the companies and invested funds in them. Appellees sought and obtained declaratory judgments that appellants had no rights or interest in En-vest, Coral Coast, Costal, or Calfry or authority to act on behalf of those entities. The declaratory judgment also addresses rights in lawsuits pending in Florida and Aruba between Crysta and the current and former owners of the Aruba casino.

The purpose of the Uniform Declaratory Judgments Act is to settle and afford relief from uncertainty and insecurity about rights, status, and other legal relations. See Tex. Civ. Peac. & Rem.Code Ann. § 37.002(b) (Vernon 1997). A trial court may construe a contract in a declaratory judgment suit either before or after a breach occurs. See Tex. Civ. Peac. & Rem. Code Ann. § 37.004 (Vernon 1997); see also Hasty, Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 499 (Tex.App.Dallas 1995, writ denied). A trial court has discretion to enter a declaratory judgment as long as it will serve a useful purpose or will terminate the controversy between the parties. See Bonham State Bank, 907 S.W.2d at 468.

The Bright appellants contend the declaratory relief sought by appellees was “merely incidental” to their other claims, and was not appropriate because appellees’ causes of action were mature and enforceable in a pending suit that involved the same parties and the same issues. Appel-lees’ causes of action, however, arose out of the alleged usurping of the business opportunity presented by the Aruban casino, not out of any breaches of the agreements relating to the other casinos. The declaratory judgments serve the purpose of clarifying the rights of the parties under the agreements relating to the other casinos. See J.E.M. v. Fid. & Cas. Co. of New York, 928 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (purpose of declaratory judgment is to obtain clarification of one’s rights). They act to fully terminate all controversies between the parties. Tex. Civ. Peac. & Rem.Code Ann. § 37.008 (Vernon 1997) (court may refuse to render declaratory judgment if it does not terminate uncertainty or controversy). We hold the trial judge did not abuse his discretion in entering the declaratory judgments. See Bonham State Bank, 907 S.W.2d at 468.

The Texas Uniform Declaratory Judgments Act allows the trial court to award reasonable and necessary attorneys’ fees and costs as are equitable and just. See Tex. Civ. PRAc. & Rem.Code Ann. § 37.009 (Vernon 1997). The decision to grant or deny attorneys’ fees and costs is within the trial court’s sound discretion. Hasty, Inc., 908 S.W.2d at 502. We broadly construe the trial court’s discretion to award attorneys’ fees and costs in a declaratory judgment action. Hasty, Inc., 908 S.W.2d at 502.

The Bright appellants argue that even if the declaratory judgment was proper, the trial judge abused his discretion by awarding attorneys’ fees because there was no evidence the fees were reasonable and necessary. Pursuant to the parties’ stipulation, appellees submitted the affidavit of Edward P. Perrin, Jr. to support their claim for attorneys’ fees. The affidavit offers evidence relevant to the factors set forth in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997), for determining whether attorneys’ fees are reasonable and necessary. We hold the trial judge did not abuse his discretion in awarding attorneys’ fees.

We overrule the Bright appellants’ issues 37 through 44.

Issues PResented by GB & S Law Firm

GB & S raises nine issues in its separate appeal. Eight of the issues challenge the legal and factual sufficiency of the evidence to support the trial judge’s findings and conclusions as to GB & S on issues of proximate cause, vicarious liability, negligence, fiduciary relationship, malice and fraud, exemplary damages, and attorney’s fees. The ninth issue complains of a potential “double recovery.”

We overrule GB & S’s issues one through seven because Bright’s acts are deemed to be those of GB & S. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999) (“When actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of the corporation itself.”); see also Burleson State Bank v. Plunkett, 27 S.W.3d 605, 619 (Tex.App.-Waco 2000, pet. denied) (corporation may be hable for exemplary damages if it acts maliciously through the actions of corporate officer). It is undisputed Bright is a vice-principal of GB & S. Bright formed the firm with Rick J.W. Graham and is an officer and director of GB & S.

In addition, if a servant’s act is closely connected with his authorized duties, a master is vicariously liable even where the servant’s act is intentional and the master did not specifically authorize it. GTE Southwest, 998 S.W.2d at 617-18. The trial judge heard evidence Bright’s only professional license was his law license; GB & S was incorporated for the purpose of the practice of law; Bright was a vice-principal of GB & S; Bright used GB & S letterhead in providing services to appellees; appellees’ funds were deposited in GB & S’s trust account; and statements sent to appellees and paid by appellees for professional services bore GB & S’s name. As noted above, Bright admitted at least some of the activities he undertook on appellees’ behalf were legal work. For the Aruba casino, Bright engaged in similar work to create a corporation and enter into a management agreement as he had done on appellees’ behalf on three prior occasions. There was sufficient evidence from which the trial judge could have found Bright was acting in the course and scope of his duties for GB & S in his dealings with appellees. “If the intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity, the employer may be hable.” GTE Southwest, 998 S.W.2d at 618; see also G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 884 (Tex.App.Dallas 2003, no pet.) (employer liable for act of employee, even if act contrary to express orders, if done within general authority as employee). Bright’s actions occurred while he was carrying out his duties of rendering professional services to appel-lees. There is evidence to support the trial judge’s findings regarding GB & S’s liability to appellees.

Because the trial court’s judgment may be upheld on theories of vicarious liability, we need not consider GB & S’s arguments regarding its direct liability for negligence and the necessity of expert testimony on that issue. See G.T. Mgmt., Inc., 106 S.W.3d at 885 (appeals court need not consider negligence theories where judgment could be upheld on theory of respon-deat superior).

We overrule GB & S’s issues one through seven. We have addressed the propriety of the attorneys’ fees award and the issue of double recovery in our discussion of Bright’s appeal. We overrule GB & S’s eighth and ninth issues.

We affirm the trial court’s judgment.


source: Caselaw Access Project

author: Justice FITZGERALD.

license: Public Domain

text:
    CITY OF CELINA, Appellant, v. Stacey BLAIR, Individually and as Next Friend of Courteney Blair and Caitlin Blair, Appellee.
    No. 05-04-01460-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 4, 2005.
    Rehearing Overruled Sept. 22, 2005.

      William W. Krueger, III, Rebecca Dur-rett, Fletcher & Springer, L.L.P., Dallas, TX, for Appellant.
    Andrew Korn, David M. Diaz, Korn, Bowdich & Diaz, L.L.P., Dallas, L. Alan Grundy, Austin, for Appellee.
    Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
   OPINION

Opinion By

Justice FITZGERALD.

Appellee Stacy Blair’s husband was killed in a motorcycle accident on a road within the limits of appellant City of Celina. Blair sued the City and the Texas Department of Transportation on a premises liability theory, alleging both a premise defect and a special defect with the road. Blair pleaded that the City’s sovereign immunity to premises liability claims had been waived in the Texas Torts Claims Act. The City filed its answer, which included a plea to the jurisdiction, a plea in abatement, special exceptions, and a plea to the jurisdiction. With a single exception, all of the City’s pleadings related to the theory that the City did not control the roadway on which the accident occurred so as to allow a premises liability claim against the City to proceed. The trial court denied all of the control-related requests for relief filed by the City, including its plea to the jurisdiction. The City brings a single issue in this interlocutory appeal, complaining that the trial court erroneously denied the City’s plea to the jurisdiction. We affirm the trial court’s order.

A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court’s authority to determine the subject matter of a pleaded cause of action. Tex. State Employees Union/CWA Local 6184, A.F.L.C.I.O. v. Tex. Workforce Comm’n, 16 S.W.3d 61, 65 (Tex.App.-Austin 2000, no pet.). The existence of subject matter jurisdiction is a question of law; thus, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id.

We look first to the petition in the case. The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We construe the petition liberally in favor of the plaintiff, and we look to her intent. Id. In this case, Blair’s petition included a section titled “Jurisdiction,” which stated:

This Court has jurisdiction over the parties in this action under the Texas Tort Claims Act because the Texas Legislature waived Defendants^] sovereign immunity for claims involving death caused by the condition and/or use of tangible real property. This Court has jurisdiction over the subject matter herein because the amount in controversy is within the jurisdictional limits of the Court.

In the “Factual Background” section, Blair alleged that FM 455, the road on which the accident occurred, “is owned, maintained, and/or controlled by Defendants” and that the “harm-causing incident” was caused by the “defective and dangerous condition” of that road. In'a section titled “Waiver of Sovereign Immunity,” the petition states:

Defendants may be held to answer in a court of law for the occurrence described herein because Plaintiffs’ claims arise from the condition and/or use of tangible real property, so that sovereign immunity is waived under the Texas Tort Claims Act.

Then, in identifying her specific claims against the two defendants, Blair pleaded under the heading “Count I Texas Tort Claims Act (Special Defect),” that the road contained a special defect, which posed an unreasonable risk of harm and recited that the defendants had failed not to injure her decedent through willful, wanton, or grossly negligent conduct. Likewise, under the heading “Count II Texas Tort Claims Act (Premises Defect),” Blair pleaded that the road contained a premises defect, which posed an unreasonable risk of harm, and recited the standard of care that had been violated. Blair attached the police report of the accident to the petition; the report stated that a Celina police officer investigated the accident and issued a citation in connection with that investigation.

The City’s plea to the jurisdiction avers that Blair’s petition did not identify the statutory basis on which she bases her claim and that the petition “does not explain how the claim escapes sovereign immunity from suit.” Blair’s pleading identified the specific legislative waiver of immunity on which Blair relied — the Texas Torts Claim Act. She identified the type of claim she was making that was within the Act’s statutory waiver — a premises liability claim. She also identified the specific type of premises liability claims she was asserting pursuant to the Act’s waiver — a premises defect and a special defect, both relating to the condition of the road where the accident occurred. And finally, she pleaded the standard of care that would apply to determine the City’s liability under these provisions of the Act. We conclude Blair met her burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. See Tex. Ass’n of Bus., 852 S.W.2d at 446.

The City argues, however, that even if Blair’s pleading were sufficient to invoke a waiver of immunity, the waiver does not apply to the City in this instance. The City asserts that to establish such a waiver under the Act, Blair “must prove the existence of a legal duty owed to her and her minor daughters by the City, and the violation of that duty.” In this vein, the City’s plea alleges: “Specifically, Defendant City does not own, occupy, control or maintain 15136 W. FM 455.” At the hearing on its plea the City offered several affidavits of employees, who testified that the City did not own, occupy, maintain, or control the road in question. From that premise, the City argues that it is not a “possessor” of the road where the accident occurred and, as a result, it owed no duty to Blair. If it owed no duty to Blair, the City argues, there has been no waiver of its sovereign immunity, and Blair’s lawsuit may not be maintained.

The supreme court recently addressed a plea to the jurisdiction in which undisputed evidence implicated both the court’s jurisdiction and the merits of the plaintiffs claim. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In Miranda, the supreme court catalogued the traditional rules for reviewing a trial court’s ruling on a plea to the jurisdiction. However, the court went further, stating that when a defendant’s jurisdictional challenge implicates the merits of the plaintiffs cause of action and the plea to the jurisdiction includes evidence, we must review the relevant evidence to determine if a fact issue exists. See id. at 227. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubt in the nonmovant’s favor. Id. at 229. If the evidence creates a fact issue regarding the jurisdictional issue, then the fact issue must be resolved by the fact finder. Id. at 227-28. “[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228.

In Miranda, the plaintiff was injured after a tree limb fell on her head at a state park. Id. at 221. According to the Court, the plaintiff was required to plead specific facts to establish the Department was grossly negligent in order to state a claim under the Texas Tort Claims Act and the recreational use statute. Id. at 230. The Court determined the plaintiff had done so in her third amended petition. This pleading alleged in relevant part that after plaintiff received a state employee’s recommendation for a safe camping location and proceeded there, she was struck by a falling tree branch, causing her severe injuries. Id. The pleading further alleged that

the unpruned, uninspected tree branches created a dangerous, defective condition on the premises of which the Department was aware; ... the Department knew of the dangers of its falling tree branches but failed to inspect, prune, alleviate the dangers, or otherwise make safe the dangerous conditions of its trees.

Id. Finally, the pleading alleged that the Department failed to warn the plaintiff of the extremely dangerous condition and that the Department’s conduct was grossly negligent. Id.

The Department challenged plaintiffs pleadings and submitted evidence in the form of an affidavit and deposition to controvert the factual allegations supporting jurisdiction. The Department’s evidence showed the park normally inspected and maintained its trees; tree limbs are only pruned or trimmed if dead; the tree limb that fell on plaintiff was living, fell from fifty feet above the campsite, and was not clearly observable without climbing the tree; there was no reason to conclude the tree from which it fell presented a dangerous or hazardous condition; and, although tree limbs have fallen on about twenty occasions, no one has ever been injured. Id. at 231. This evidence was sufficient to negate every allegation of gross negligence in the third amended petition.

Plaintiff cited no controverting evidence in her response. Id. The court concluded the evidence established the Department was not grossly negligent and that the plaintiff had failed to raise a fact question regarding the Department’s alleged gross negligence. Id. at 232.

In this case, the City offered evidence in support of its plea: affidavits of employees, who testified broadly that the City did not own, occupy, maintain, or control the road in question. However, Blair’s pleadings included the investigating police officer’s report of the accident. That document reported the investigation was performed by a City police officer and that the officer issued a citation as a result of the investigation. These specific allegations suffice to raise a fact issue as to the control of the roadway by the City. The City’s evidence did not address, let alone negate, the specific matters raised by the report. Thus, despite the City’s affidavits’ broad assertions of no control, a fact issue concerning control remains unaddressed. We conclude the City did not conclusively establish its no-duty theory so as to require Blair to come forward with evidence raising a fact issue on her claim. Cf. id. (concluding that evidence in record did establish defendant was not grossly negligent, requiring plaintiff to raise fact issue on that issue). At this point in the proceedings, the issue of the City’s control over the road in question remains within the province of the trier of fact. See id. at 227-28.

We conclude the trial court correctly denied the City’s plea to the jurisdiction. We overrule the City’s issue and affirm the order of the trial court.

      . One of the City’s special exception sought a pleading of the maximum amount of damages Blair sought to recover from the City.

      . The City's participation in the functions of constructing, designing, and maintaining roads is governmental in nature, rather than proprietary. Thus the City is civilly liable for damages pursuant to those functions only where the legislature has waived its sovereign immunity in the Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(a)(3), (4).

      . In support of this premise, the City cites two opinions that review the findings of a jury after full trial; they are not relevant to our review of the trial court’s ruling on a plea to the jurisdiction.

      . Because of our resolution of the appeal, we need not address whether the affidavits were properly offered for the trial court's consideration. We assume for purposes of this appeal that the affidavits were properly before the court.

      . Documents constituting all or part of the claim sued on may be made a part of the pleadings by being attached and referred to in the pleading. TexR. Civ. Pro. 59. A document so attached shall be deemed a part of the pleading for all purposes. Id. A suit brought pursuant to the Texas Tort Claims Act requires that notice of the claim be given to the governmental unit. Tex. Civ. Prac. & Rem. Code § 101.101. Accordingly, to show this part of her claim had been satisfied, Blair attached to her petition the notices of her claim that were sent to the two defendants. Bach notice, in turn, attached the police report of the accident at issue in the claim. Thus, the police reports became part of Blair's pleadings for all purposes.

      . This allegation is also contained within the petition itself under the heading "Notice & Conditions Precedent."


author: ADELE HEDGES, Chief Justice.

text:
    Michael George LaHOOD, Appellant v. The STATE of Texas, Appellee.
    Nos. 14-04-00442-CR, 14-04-00443-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 9, 2005.

      Lana Gordon, Houston, for appellant.
    Carol M. Cameron, Houston, TX, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Michael LaHood, appeals from his convictions for aggravated kidnapping and aggravated sexual assault. After finding him guilty, the jury assessed punishment at thirty years’ imprisonment. On appeal, appellant contends that the trial court erred in (1) failing to sua sponte conduct an inquiry into his competency to stand trial, (2) permitting the prosecutor to impeach his testimony with felony convictions that were more than ten years old, and (3) refusing to allow defense counsel to ask the complainant about her most recent drug use. Appellant further argues that he received ineffective assistance of counsel because his counsel failed to (1) request an inquiry into his competency, (2) request a jury submission on the doctrine of release to a safe place, and (3) object to improper jury argument. We affirm.

I. Background

Complainant, Shelly Boyd Mitchell, testified that she and appellant began living together in Aransas Pass in August 2003. She said that they spent their time fishing and taking illegal drugs and that they shoplifted and borrowed money when they needed things.

In September 2003, they discussed leaving Aransas Pass, but Mitchell told appellant she did not think it was a good idea. One day, appellant packed Mitchell’s car with fishing gear and dirty clothes, leading Mitchell to believe they were going to fish and wash laundry. When she realized appellant intended to take her out of town, Mitchell told him that she did not want to go, and he replied that “it wasn’t a question of whether [she] wanted to or not. [She] was going.” As they drove, she insisted that she wanted out of the car, but he wouldn’t stop and became very angry. She tried to open the door and get out while the car was moving, but he pulled her back. She tried several more times to get out of the car, but he told her that he would Mil her if she didn’t “mind” him. Appellant made various threats to Mitchell, including that he would cut her throat, beat her beyond recognition, and cut her tattoos out so that no one would recognize her. Appellant physically attacked Mitchell by pulling her hair, beating her head into the car’s console, biting her arms, and choking her. Mitchell was terrified and believed that appellant would carry out some of these threats. She said that he had a knife with him. She made several more attempts to escape, including by putting the car in park, trying to take the keys, trying to climb out the window, and telling him to pull over. Near Wharton, appellant stopped the car, gave Mitchell some pills, tied her wrists together, and told her to go to sleep.

Appellant told Mitchell that they were going to get “good dope.” She testified that at this point she was sick and tired, and she told him she didn’t want any “dope.” Once they arrived in Houston, appellant stopped in a parking lot, made Mitchell lie down in the back seat, and tied her ankles together. Mitchell said that she felt like she could have gotten out of the car at that time but that she couldn’t have gotten away because she was not familiar with the Houston area. Appellant then drove to another parking lot and sexually assaulted her. Afterwards, appellant fell asleep next to Mitchell in the back seat of the car. She later woke appellant, and they checked into a motel room. They made several trips to buy alcohol and drugs. At one point, when they exited the motel room to go buy drugs, they saw a police car near the motel, and appellant and Mitchell hurried back inside the room. When appellant and Mitchell later got in their vehicle to drive away, police pulled them over because of a faulty inspection sticker. Mitchell told the officers that she had been kidnapped, and appellant was arrested.

II. Inquiry into Competency

In his first issue, appellant contends that the trial court erred in failing to sua sponte inquire into his competency to stand trial because he had a history of mental illness, made outbursts during trial, and complained that he had not received his medication and had difficulty understanding the proceedings. We review a trial court’s failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App.1999). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Tex.Code Crim. PROC. Ann. art. 46B.003(b) (Vernon Supp. 2004-05). A defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding, or (2) rational as well as factual understanding of the proceedings against him. Id. art. 46B.003(a).

If, during trial, evidence is brought to the attention of the trial court from any source raising a bona fide doubt as to the defendant’s competency, the court must conduct an informal inquiry outside the jury’s presence to determine whether there is evidence to support a finding of incompetency to stand trial. Id. art. 46B.004; McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App.2003). In the inquiry, the court must determine whether there is “some evidence” to support a finding of incompetency, and, if the court so finds, it must then commence a hearing before a jury. McDaniel, 98 S.W.3d at 710; see also Tex.Code CRiM. PROC. Ann. arts. 46B.005(b), 46B.051. The requirements of each step must be fulfilled before the next step becomes applicable. McDaniel, 98 S.W.3d at 710-11. The naked assertion, “I am incompetent,” is not sufficient without supporting evidence to require either an inquiry by the court or a hearing before a jury. Id. at 711. Evidence capable of creating a bona-fide doubt about a defendant’s competency may come from the trial court’s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Evidence is usually sufficient to create a bona-fide doubt if it shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710. If evidence warrants a competency hearing, and the trial court denies such a hearing, the defendant is deprived of his constitutional right to a fair trial. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Appellant contends that he made in-court statements that constituted evidence of his incompetency to stand trial. Appellant testified on four consecutive days. He does not reference any statements he made on the first day. Indeed, on this first day of testimony he was responsive, remembered details, and spoke intelligibly. On the second day, before the jury entered the courtroom, appellant said “I need my medicine.” When his testimony began, appellant said that he did not get his “psych meds again toda/’ and that he was having trouble understanding things. Appellant then testified without any problems for a period of time before stating “I need my medication.... I am so uncomfortable. I’m seeing the lights blink. I take medication for manic depression, schizophrenia.... I haven’t had it. This is not right.” The judge excused the jury and recessed the proceedings for the day.

Before the jury entered the courtroom on appellant’s third day of testimony, he complained to the judge that someone he wanted subpoenaed had not been subpoenaed, and he claimed he was “getting railroaded.” Once the jury was brought in, appellant again testified without any apparent difficulty. In response to defense counsel’s questioning, appellant explained that he had difficulty testifying on the prior day because he had not been given his medication. He described his conditions and medication in some detail, and explained that he was much calmer on that day because he had received his medications the night before. Later that day, during the prosecutor’s closing argument, appellant made several brief interjections, which drew neither an objection from the prosecutor nor an admonishment from the trial judge.

The trial moved into the punishment phase on the fourth day. When a witness was asked about another witness’s drug use, appellant interrupted, “Shelley [complainant] is using drugs right now.” Shortly thereafter, the prosecutor asked the witness “How many mistakes does he get to make? ... How many assaults does he get to ... commit before we say enough?” Appellant again interrupted, “Not guilty. Outright lie-Find me in contempt. It’s a he.” The jury was removed from the courtroom, and the judge and the witness calmed appellant down. When the jury returned, appellant testified regarding his emotional problems, prescription medications, and substance abuse problems.

The fact that appellant made outbursts during trial is not evidence of an inability to communicate with counsel or to appreciate the proceedings against him. Moore, 999 S.W.2d at 395. Although inappropriate, the outbursts were immediate and logical responses to statements made or questions asked during trial. Id. If such actions were enough to demonstrate incompetency, a defendant could easily avoid prosecution through immature behavior. Id. Similarly, the fact that he may have been on psychiatric medication during trial and had a history of mental problems did not mandate a competency inquiry absent evidence of a present inability to communicate or understand the proceedings. See id. at 395-96.

The only time during trial that there was any indication appellant was having difficulty understanding the proceedings was on his second day of testimony when he stated that he was uncomfortable and seeing the lights blink and had not had his medication. The judge immediately recessed the proceedings. The next day, appellant continued testifying without any apparent difficulty, and he explained that he was doing much better because he had received his medication the night before. Because it appears from the record that the trial court acted appropriately in dealing with appellant’s difficulty in testifying on the second day, and there is no indication in the record that appellant did not understand the proceedings or had trouble communicating during any other portion of the trial, we find that the trial court did not abuse its discretion in failing to sua sponte inquire into appellant’s competency to stand trial. Accordingly, appellant’s first issue is overruled.

III. Impeachment

In his fifth issue, appellant contends that the trial court erred in permitting the prosecutor to impeach his testimony with felony convictions that were more than ten years old. Specifically, appellant complains that the State was permitted to introduce evidence that he was convicted in 1987 of burglary of a nonhabitation and credit card abuse. We review admission of this evidence under an abuse of discretion standard. Lucas v. State, 791 S.W.2d 35, 51 (Tex.Crim.App.1989).

Under Rule 609 of the Texas Rules of Evidence, evidence that a witness has been convicted of a crime is admissible to attack the witness’s credibility if the crime was a felony or involved moral turpitude and the court determines that the probative value of the evidence outweighs its prejudicial effect. Tex.R. Evid. 609(a). However, evidence of a conviction is not admissible under the rule if more than ten years has elapsed since the date of the conviction, or the release from confinement if later, unless the probative value substantially outweighs the prejudicial effect. Id. 609(b). In short, the general rule is that if a conviction is under ten years old, the test for admission is whether the probative value outweighs the prejudicial effect, and if the conviction is over ten years old, the test is whether the probative value substantially outweighs the prejudicial effect. Id. 609; Lucas, 791 S.W.2d at 50-51 & n. 9; Jackson v. State, 50 S.W.3d 579, 591 (Tex.App.-Fort Worth 2001, pet. ref d).

The Court of Criminal Appeals has created an exception or interpretation of the general rule such that Rule 609(b)’s “substantially outweighs” test will not be applied to a prior conviction over ten years old if the witness’s lack of reformation is shown by evidence of an intervening con-vietion for a felony or a misdemeanor involving moral turpitude. Lucas, 791 S.W.2d at 51; Jackson, 50 S.W.3d at 591. Here, appellant acknowledged at trial that he was convicted in 1999 and again in 2003 of misdemeanor theft. Theft is a crime of moral turpitude. Oldham v. State, 5 S.W.3d 840, 849 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Thus, there was evidence of appellant’s lack of reformation, and whether appellant’s burglary and credit card abuse convictions were admissible is properly analyzed under Rule 609(a)’s “outweighs” test.

In determining whether the probative value of the evidence outweighs the prejudicial effect, courts look to the factors proffered by the Court of Criminal Appeals in Theus v. State: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. 845 S.W.2d 874, 880 (Tex.Crim.App.1992).

In the present case, each of the factors leans towards admission. Regarding the first factor, the impeachment value of prior crimes involving deception or moral turpitude is greater than for crimes involving violence. Theus, 845 S.W.2d at 881; Deleon v. State, 126 S.W.3d 210, 215 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d.). Further, violent crimes are likely to have more of a prejudicial effect. Theus, 845 S.W.2d at 881; Deleon, 126 S.W.3d 210 at 215. Burglary and credit card abuse are crimes of deception rather than of violence. See Tex. Pen.Code Ann. § 32.31 (Vernon Supp.2004) (credit card abuse); White v. State, 21 S.W.3d 642, 647 (Tex.App.-Waco 2000, pet ref'd) (burglary). Accordingly, the first factor favors admission.

As discussed above, because there was evidence of intervening convictions suggesting appellant has not reformed his conduct, the second factor, concerning temporal proximity, can also be read as favoring admission. See Rodriguez v. State, 129 S.W.3d 551, 560 (Tex.App.Houston [1st Dist.] 2003, pet. ref'd); Jackson v. State, 11 S.W.3d 336, 340 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).

The third factor concerns the similarity between the past crimes and the offenses being prosecuted. The present case involves charges of aggravated kidnapping and aggravated sexual assault, neither of which is remotely similar to the prior convictions for burglary of a nonhabitation and credit card abuse. Thus, factor three leans in favor of admission because there is a lessened possibility of prejudice. See Theus, 845 S.W.2d at 881.

Factors four and five concern, respectively, the importance of the defendant’s testimony and the importance of the credibility issue. As the court stated in Theus, “When the case involves the testimony of only the defendant and the State’s witness, the importance of the defendant’s credibility and testimony escalates. As the importance of the defendant’s credibility escalates, so will the need to allow the State an opportunity to impeach the defendant’s credibility.” Id. As often happens in sexual assault cases, there were no eyewitnesses in this case other than the parties involved. Therefore, appellant’s testimony and the credibility issue were crucial elements at trial, and allowing impeachment of the witnesses’ testimonies was appropriate. See id.

In summary, each of the Theus factors favors admission of the prior convictions for impeachment purposes. Therefore, the trial court did not err in admitting evidence of the prior convictions. Appellant’s fifth issue is overruled.

IV. Exclusion of Evidence

In his sixth issue, appellant contends that the trial court erred in refusing to permit defense counsel to ask Mitchell about her most recent drug use. During trial, Mitchell testified that she had an addiction to cocaine, had used other drugs, and still used drugs occasionally; however, when defense counsel twice asked Mitchell about her most recent drug use, the State objected on relevance grounds, and the court sustained the objection. Appellant contends that the court’s ruling violated his right to confrontation under the Sixth Amendment. U.S. Const, amend. VI.

In order to preserve a complaint regarding the exclusion of evidence, a defendant generally must make an offer of proof or file a bill of exceptions to make the substance of the evidence known. See Tex.R. Evid. 103(a). Otherwise, it is usually impossible for the appellate court to assess whether the exclusion was erroneous or harmful. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex.App.-Houston [14th Dist.] 1997, no writ); Goode, Wellboen & Sharlot, Guide to the Texas Rules of Evidence § 103.3 (3rd ed.2002); see also Fox v. State, 115 S.W.3d 550, 558-59 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Tex.R. Evid. 103(a) for the proposition that when the content of the evidence is apparent from the context a formal offer of proof is not required). When excluded evidence goes generally to a witness’s credibility, including any impairment possibly effecting credibility, the offer-of-proof burden is less rigid. Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.1987) (plurality opinion); Humphrey v. State, 155 S.W.3d 651, 662 (Tex.App .-Texarkana 2005, pet. ref'd); Recer v. State, 821 S.W.2d 715, 717 (Tex.App.-Houston [14th Dist.] 1991, no pet.). In that situation, the defendant must merely establish the general subject matter on which he or she desired to examine the witness and, if challenged, show on the record why such should be admitted into evidence. Virts, 739 S.W.2d at 29; Mumphrey, 155 S.W.3d at 662; Recer, 821 S.W.2d at 717.

On appeal, appellant contends that the evidence may have shown that appellant was under the influence of drugs at the time of her testimony. But at trial, counsel made no such explanation; indeed, counsel offered no explanation as to what the testimony might show or why it should be admitted. See Mumphrey, 155 S.W.3d at 662 (holding issue was properly preserved where defense counsel stated that the evidence sought was relevant to the witness’s credibility and her tendency to imagine things). Thus, nothing was preserved for review. Appellant’s sixth issue is overruled.

V. Assistance of Counsel

In his second, third, and fourth issues, appellant contends that he received ineffective assistance of counsel because counsel failed to (1) request an inquiry into his competency to stand trial, (2) request a jury submission on the doctrine of release to a safe place, and (3) object to improper jury argument. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In reviewing an ineffective assistance claim, an appellate court “must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the two-pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel’s performance was deficient, ie., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App.1998). This is particularly true when the alleged deficiencies are matters of omission and not of commission that may be revealed in the record. Id. A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The case before us is not a habeas corpus proceeding, and there was no hearing on the motion for new trial.

A. Incompetency to Stand Trial

In his second issue, appellant contends that he received ineffective assistance of counsel because his counsel failed to request an inquiry into his competency to stand trial. He asserts that “[cjounsel was apparently aware of Appellant’s diminished mental state”; however, since there was no hearing on the motion for new trial, the record contains no indication of counsel’s knowledge beyond the occurrences during trial, detailed under issue one above. As discussed, the evidence cited by appellant was not sufficient to warrant an inquiry into his competency. See Brown, 129 S.W.3d at 767 (overruling complaint alleging ineffectiveness of counsel for failing to request competency inquiry because there was no evidence defendant was incompetent); Hall v. State, 766 S.W.2d 903, 906-07 (Tex.App.-Fort Worth 1989, no pet.) (finding counsel was not ineffective for failing to request competency inquiry for substantially the same reasons as to why trial court did not err in failing to sua sponte order competency inquiry). Further, appellant asserts that counsel did not subpoena any of his medical or jail records and she did not provide any expert testimony regarding his mental health. However, the record is also silent as to what information defense counsel might or might not have obtained or as to what any expert would have had to say about appellant’s condition. See Brown, 129 S.W.3d at 767 (refusing to speculate on whether counsel investigated competency issue in light of a silent record). Accordingly, on the record before us, appellant cannot rebut the presumption that his counsel was effective; thus, he cannot satisfy the first prong of Strickland. See Thompson, 9 S.W.3d at 812. His second issue is overruled.

B. Closing Argument

In his third issue, appellant contends he received ineffective assistance because his attorney failed to object to improper closing argument by the prosecutor. Appellant had previously worked as an electrical contractor. During closing argument in the punishment phase, the prosecutor made a point regarding the safety of the community and then asked the jury “Do you really want to wake up 20 years from now, having worked [sic] on your house, and have [appellant] come in as the electrical contractor? Are you going to feel safe while that’s going on?” Defense counsel did not object to these statements.

There are four permissible areas of jury argument: (1) summations of the evidence; (2) reasonable deductions from the evidence; (3) responses to the defendant’s argument; and (4) pleas for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App.2000). Arguments similar to the prosecutor’s in this case have consistently been held to constitute proper pleas for law enforcement and reasonable deductions from evidence demonstrating that the defendant had a violent nature. See, e.g., Starvaggi v. State, 593 S.W.2d 323, 328 (Tex.Crim.App.1979) (“I just say this, that I hope he doesn’t come knocking on one of your doors at eight o’clock one evening.”); Moyer v. State, 948 S.W.2d 525, 531 (Tex.App.-Fort Worth 1997, pet. ref'd) (“How could any of you go to sleep at night wondering whether he was on the street?”); Fields v. State, 932 S.W.2d 97, 111 (Tex.App.-Tyler 1996, pet. ref'd) (“If you folks want to go home tonight and sleep, if you want to be sleeping fifteen years from now or twenty years from now or thirty years from now ... you know what you need to do.”); Lopez v. State, 860 S.W.2d 938, 942-43 (Tex.App.-San Antonio 1993, no pet.) (“[Y]ou know what he can do. And you decide what to do with him. Does he walk out with you? ... Or does he go to [prison] for as long as you can possibly put him away?”).

Here, the record contains detailed evidence of the violent crimes appellant committed against Mitchell; there was also evidence that appellant had previously restrained and physically and sexually assaulted another woman. We hold that the prosecutor’s argument was a proper plea for law enforcement and a reasonable deduction from the evidence. Thus, defense counsel’s failure to object to the argument did not constitute ineffective assistance of counsel. See King v. State, 649 S.W.2d 42, 45 (Tex.Crim.App.1983); Richards v. State, 912 S.W.2d 374, 380 (Tex.App.Houston [14th Dist.] 1995, pet. ref'd). Appellant’s third issue is overruled.

C. Jury Instruction

In his fourth issue, appellant contends that he received ineffective assistance because his attorney failed to request a jury submission regarding voluntary release to a safe place. Under Penal Code section 20.04(d), a defendant accused of aggravated kidnapping may raise an issue in the punishment phase as to whether he voluntarily released the victim in a safe place. Tex. Pen.Code Ann. § 20.04(d) (Vernon 2003). If the defendant proves the issue by a preponderance of the evidence, the offense is classified as a second degree felony as opposed to a first degree felony. Id. § 20.04(c), (d).

During the charge conference, defense counsel appeared to agree with the prosecutor that there was no evidence warranting a “safe release” submission. On appeal, in support of his safe release argument, appellant cites to evidence that: (1) the arresting officers saw appellant and Mitchell exit a motel room and then turn and go back in upon seeing the officers; (2) appellant and Mitchell appeared to be avoiding the officers; (3) no weapons were found in the room when it was searched after the arrest; (4) there was a telephone in the motel room; (5) the police pulled appellant and Mitchell over before arresting appellant; and (6) appellant left Mitchell alone in the room on two occasions while she pretended to sleep; he went to the car and then returned to the room.

In order to raise the issue of voluntary release to a safe place, a defendant must offer some evidence that he or she actually released the victim. See Ballard v. State, 161 S.W.3d 269, 273 (Tex.App.-Texarkana 2005, pet. filed) (“[T]he application of Section 20.04(d) should focus on whether the defendant performed an act of release....”); Harrell v. State, 65 S.W.3d 768, 772 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (“Appellant, in order to avail himself of the mitigating effect of section 20.04(d), must first have performed ‘some overt and affirmative act’ which brought home to his victim that she had been ‘fully released from captivity.’ ”) (quoting in part Wiley v. State, 820 S.W.2d 401, 411 (Tex.App.-Beaumont 1991, no pet.)). The first four pieces of evidence cited by appellant may have had some relevance to the question of appellant’s guilt as to the aggravated kidnapping charge; however, this evidence does not demonstrate that appellant ever released Mitchell. Although the fifth piece of evidence, regarding the vehicle stop by police officers, may have relevance to Mitchell’s release from appellant’s control, it was clearly at the intervention of the officers and thus cannot be deemed “voluntary” on appellant’s part. See Brown, 98 S.W.3d at 188. Lastly, appellant’s apparently brief absences from the room to go to the car and back while he thought Mitchell was sleeping cannot be considered “ ‘overt and affirmative act[s]’ which brought home to his victim that she had been ‘fully released from captivity.’ ” Harrell, 65 S.W.3d at 772 (quoting in part Wiley, 820 S.W.2d at 411).

Because appellant failed to provide any evidence that would have warranted a jury submission regarding voluntary release to a safe place, he has also failed to demonstrate that his counsel was deficient in failing to request such a submission. Accordingly, he has not satisfied the first prong of Strickland. See Thompson, 9 S.W.3d at 812. Accordingly, we overrule appellant’s fourth issue.

The trial court’s judgment is affirmed.

      . Contrary to appellant’s assertion on appeal, there is no mention at this point in the record of appellant’s not understanding all that was going on at trial.

      . We further note that the trial court was in a much better position than are we to assess appellant's demeanor both during his alleged period of confusion and during the rest of the trial. Additionally, beyond his own testimony, appellant cites no other evidence regarding incompetency. See McDaniel, 98 S.W.3d at 711 (suggesting that a defendant’s bare allegation of incompetency is not sufficient to raise a bona fide doubt requiring inquiry).

      . Appellant was convicted of burglary of a nonhabitation on March 3, 1987, and his sentence was probated. On November 12, 1987, appellant's probation was revoked, and he was ordered confined for four years. Appellant was convicted of credit card abuse on October 23, 1987, and was sentenced to five years’ incarceration.

      . During cross-examination, appellant expressly admitted the 2003 conviction, but when asked about whether he "did time” for the 1999 conviction, he stated "I could have. I might have. If it was a misdemeanor theft from a Home Depot, I think I could have done that.” Later, during re-direct, appellant stated he plead guilty to the "misdemeanor thefts” mentioned by the prosecutor because he was guilty. The prosecutor had only mentioned two such theft convictions, occurring in 1999 and in 2003.

      . The Court of Criminal Appeals has determined that a narrow rather than a broad definition of "voluntarily” applies to section 20.04(d), so that to be voluntaiy, the release must not have been occasioned by rescue by the police or others or escape by the victim, among other things. Brown v. State, 98 S.W.3d 180, 183-88 (Tex.Crim.App.2003). Factors relevant to determining whether the place of release can be considered safe in-elude: (1) the remoteness of the location; (2) the proximity of authorities or persons who could assist the victim; (3) the time of day; (4) climatic conditions; (5) the condition of the victim; (6) the character of the location or surrounding neighborhood; and (7) the victim’s familiarity with the location or surrounding neighborhood. Nolan v. State, 102 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).