author: Opinion by Justice CARTER.

text:
    Kiheem GRANT, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00011-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 28, 2005.
    Decided Aug. 5, 2005.

      David W. Barlow, Beaumont, for appellant.
    Phillip Babin, Asst. Dist. Atty., Tom Maness, Criminal Dist. Atty., Beaumont, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

After being properly admonished in writing, Kiheem Grant entered a plea of guilty to the offense of retaliation. He also entered a plea of true to the allegation that he had previously been convicted of attempted robbery in the State of New York. The plea of guilty was entered before the trial court October 18, 2004, and the trial court ordered a presentence investigation (PSI) report. The case was set for sentencing after the PSI report was completed.

On October 29, Grant reappeared for sentencing and requested that his plea of guilty be withdrawn. Further, counsel requested a factual hearing to determine Grant’s allegations that his plea was not voluntary and that threats were made to him inducing him to make his plea. The trial court denied the request to withdraw and the request for a factual hearing. After hearing arguments, the trial court found Grant guilty of retaliation and assessed punishment at twenty years’ confinement. Grant filed a motion for new trial alleging, among other things, that his life was threatened by law enforcement officers if he did not enter a plea of guilty and, therefore, it was not entered voluntarily. Grant’s unsworn statement concerning the allegations of coercion was attached to the motion. However, the affidavit attached to the motion for new trial was signed by Grant’s attorney on behalf of Grant, representing that such statements “made in the foregoing Motion for New Trial are true and correct, to the best of his knowledge.”

Issues

Grant raises two issues on appeal: 1) that the trial court abused its discretion in refusing to allow Grant to withdraw his plea of guilty and 2) that the trial court abused its discretion in denying Grant’s motion for new trial based on an involuntary plea.

1. Did the trial court abuse its discretion in refusing to allow Grant to withdraw his plea of guilty?

A defendant may withdraw his or her guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. See Stanton v. State, 159 Tex.Crim. 275, 262 S.W.2d 497, 498 (1953). However, when the defendant decides to withdraw his or her guilty plea after the trial court takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979) (citing McWherter v. State, 571 S.W.2d 312 (Tex.Crim.App.1978)). The passing of a case for a PSI report is considered “[taking] the case under advisement.” Jackson, 590 S.W.2d at 515; see Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.). An abuse of discretion is shown only when the trial court’s ruling lies outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

We find that the trial court did not abuse its discretion in failing to allow Grant to withdraw his plea of guilty. Grant had previously been admonished in writing and had stated that his plea was freely and voluntarily made and that he was “guilty of the offense.” The only evidence to support Grant’s allegation that his plea was entered involuntarily was Grant’s unsworn statements. The trial court personally witnessed Grant entering the guilty plea and observed Grant’s demeanor and had the opportunity to consider whether it appeared that Grant was in any way threatened at the time of the entry of his guilty plea. We cannot find the trial court’s ruling denying the withdrawal of the guilty plea to be outside the zone of reasonable disagreement.

2. Did the trial court abuse its discretion in denying Grant’s motion for new trial based on an involuntary plea?

After the entry of judgment, Grant filed a formal motion for new trial. In the motion, Grant alleged that his plea of guilty was entered involuntarily and that his life was threatened by law enforcement officers if he did not enter a guilty plea. Attached to the motion for new trial was an unsworn statement from Grant detailing how he had been told by a law enforcement officer that, if he did not plead guilty, he would be killed in his cell. To his motion for new trial, an affidavit was attached as follows: “BEFORE ME, the undersigned authority, personally appeared KIHEEM GRANT by and through his attorney of record, who, on oath, stated that the statements made in the foregoing Motion for New Trial are true and correct, to the best of his knowledge.” (Emphasis added.) The affidavit was signed as “Ki-heem Grant by & through his atty. Brock Jones, Jr.”

When an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him or her to relief, the trial court abuses its discretion in failing to hold a hearing. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App.2000) (citing Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App.1993)). The motion must, however, be supported by affidavits specifically showing the truth of the grounds of attack. Id. Otherwise, general entitlement to a hearing could lead to “fishing expeditions.” Id. Even though the State did not brief the sufficiency of the affidavit filed by Grant, we believe that it is proper for this Court to review it. If the trial court’s decision is correct based on any applicable theory of law, then it will be sustained on appeal. Judgments will be upheld on appeal if they are correct under any theory of law, even when the provision has not been cited by appellee. Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002) (citing Ex parte Taylor, 36 S.W.3d 883, 886 (Tex.Crim.App.2001)). In Martinez, the Texas Court of Criminal Appeals held that an intermediate court of appeals may properly affirm the denial of a hearing on a motion for new trial based on a holding that the affidavit supporting the motion was insufficient even though that specific claim was not made by the State. Martinez, 74 S.W.3d at 21.

When the grounds for a new trial are outside the record, the movant must support the motion by his or her own affidavit or by the affidavit of someone else specifically showing the truth of the grounds of attack. Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App.1983); Hicks v. State, 75 Tex.Crim. 461, 171 S.W. 755, 763 (1913) (op. on reh’g). In Vyvial v. State, 111 Tex.Crim. 111, 10 S.W.2d 83, 84 (1928) (op. on reh’g), it was held that a motion for new trial that points out extraneous matters which are necessarily hearsay as to the accused must have attached the affidavit of some person who has knowledge of the facts.

There are several deficiencies in the affidavit. The affidavit itself is not signed by Grant, but is signed by his attorney on his behalf. In analogous situations involving allegations of jury misconduct in a motion for new trial, it has been held as insufficient for an attorney to simply state in an affidavit that some juror told him or her of some misconduct. See Martin v. State, 823 S.W.2d 391, 393 (Tex.App.-Texarkana), pet. ref'd, 830 S.W.2d 137 (Tex.Crim.App. 1992). Such statements of counsel are hearsay and do not constitute admissible evidence. If the affidavit in this case is from counsel, it is inadmissible hearsay. Consequently, no error is shown in failing to hold a hearing based on the allegations from the attorney. McIntire v. State, 698 S.W.2d 652, 660 (Tex.Crim.App.1985).

Grant’s attached statement is not sworn. It appears the affidavit attached to the motion was prepared in such a manner as to allow counsel to attempt to testify on behalf of Grant. It is impossible for Grant’s attorney to state under oath on behalf of Grant that Grant knows certain facts are true. Such an attempt does not constitute sworn testimony from Grant. Here, we have no sworn evidence from Grant raising the issue of an involuntary plea. Further, no reason or excuse was presented for the failure of Grant to provide a supporting affidavit. Even if it is difficult to obtain a verification of a statement for one confined, other provisions of law could be utilized. Grant could have filed an unsworn declaration in lieu of verification or an affidavit in writing and subscribed to its truth under the penalty of perjury. See Tex. Civ. Peac. & Rem.Code Ann. § 132.001 (Vernon 2005). When no sworn affidavit is presented, the trial court does not err in failing to conduct a hearing on the motion for new trial and in overruling the motion. See Guidry v. State, 896 S.W.2d 381, 387 (Tex.App.-Texarkana 1995, pet. ref'd).

Further, years of authority make it clear that motions for new trial on information and belief without specific averment of facts or supporting affidavit, and in such forms as would not support prosecutions for perjury, are not sufficient and would force courts to go on limitless “fishing expeditions.” Vyvial, 10 S.W.2d at 84-85. An affidavit is considered insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned. Teixeira v. Hall, 107 S.W.3d 805, 809 (Tex.App.-Texarkana 2003, no pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975)).

Here, the truth of the statements was sworn only to the “best of his knowledge.” Even if Grant had sworn to the affidavit, it is not stated in such a direct and unequivocal manner that perjury could be assigned to it if the statement was found to be false.

For the reasons stated, we find the trial court did not abuse its discretion in denying the motion to withdraw the plea of guilty or in denying a hearing on the motion for new trial and overruling the motion.

We affirm the judgment of the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Clinton SUMMERS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00147-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 27, 2005.
    Decided Aug. 9, 2005.
    Ebb Mobley, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

Charles Clinton Summers was charged by indictment with driving while intoxicated (DWI) on or about November 15, 2003. The indictment further alleged that, before the commission of that offense, Summers had been convicted of DWI on June 8, 1988, and February 9, 2001, enhancing the charge to a third-degree felony. Evidence that Summers had also been previously convicted of DWI in 1993 was introduced outside the presence of the jury. After the close of the State’s evidence, Summers filed a motion for directed verdict, arguing the June 8, 1988, conviction was too remote to be used for enhancement. The trial court overruled Summers’ motion, citing Weaver v. State to hold that “the trial court is the gatekeeper on the question of whether or not the 1988 conviction was revived by a subsequent conviction, and it has been.” The jury found Summers guilty and assessed punishment at ten years’ imprisonment and a $5,000.00 fine.

On appeal, Summers only argues that the 1988 DWI conviction alleged in the indictment is too remote to be used to elevate the primary offense to a third-degree felony. We must now determine whether the 1988 DWI conviction met each of the requirements for remoteness under Tex. Pen.Code Ann. § 49.09(e) (Vernon Supp.2004-2005) and was therefore unavailable for enhancement.

Summers argues Getts v. State is the controlling case, and the State argues that Weaver is controlling. We believe both Getts and Weaver lead to the same conclusion—the 1988 conviction for DWI can be utilized for enhancement purposes because of the intervening 1993 conviction for DWI.

Section 49.09 allows a DWI indictment to be enhanced to a felony of the third degree if the defendant has been previously convicted two times of any offense relating to the operation of a motor vehicle while intoxicated. However, subsection (e) disallows the use of a prior conviction if:

(1) the conviction was a final conviction under Subsection (d);
(2) the offense for which the person is being tried was committed more than 10 years after the latest of:
(A) the date on which the judgment was entered for the previous conviction;
(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or
(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and
(3)the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision 2.

Tex. Pen.Code Ann. § 49.09(e).

In Weaver, the DWI conviction on July 24, 2000, was enhanced to a felony conviction with two prior DWI convictions from August 10, 1990, and January 17, 1984. Weaver, 87 S.W.3d at 558. This Court held that both of the convictions were too remote (more than ten years old) and the State failed to introduce evidence of an intervening conviction before the jury, thereby failing to prove an essential element of felony driving while intoxicated. Weaver v. State, 56 S.W.3d 896, 899 (Tex.App.-Texarkana 2001), rev’d, 87 S.W.3d 557. In reversing that opinion, the Texas Court of Criminal Appeals stated that “a prior intoxication-related conviction may not be used as an element of the offense of felony DWI if that prior offense was committed more than ten years before the instant offense, unless there is an intervening intoxication-related conviction.” Weaver, 87 S.W.3d at 561. The Texas Court of Criminal Appeals, however, accepted the evidence of a 1997 DWI conviction, not alleged in the indictment, which was offered outside the presence of the jury, and concluded that the 1990 and 1984 convictions were available for enhancement because the 1997 conviction acted as an intervening intoxicated-related conviction. Id. The Texas Court of Criminal Appeals held that Section 49.09(e) was more akin to a rule of admissibility as opposed to an element of the offense. Therefore, it was unnecessary to allege the intervening conviction in the indictment or submit it to the jury. It is sufficient if the State proves the intervening conviction to the trial court in its case-in-chief. Id.

Similarly, here, the State offered evidence of Summers’ prior January 25, 1993, DWI conviction during its case-in-chief, but outside the presence of the jury. For the 1993 DWI conviction, Summers was sentenced to twenty-four months of community supervision ending January 25, 1995.

The 1993 DWI conviction for which the community supervision ended in 1995 is an intervening alcohol-related conviction within ten years of the 1988 conviction. We also note that the relevant date, January 23, 1995, when Summers was discharged from community supervision, is likewise within ten years of the primary offense alleged here. In accordance with Tex. Pen.Code Ann. § 49.09(e)(2)(B), the trial court did not err in allowing the State to use the prior 1988 DWI alleged in the indictment to enhance the present 2003 DWI offense.

In Getts, the Texas Court of Criminal Appeals addressed the time limitations between enhancements for DWI cases. Getts, 155 S.W.3d 153. Getts had three DWIs: the charged offense was 2002, and the enhancements were from 1997 and 1984. The court held that, based on the 2001 amendments to the DWI statutes, these enhancements could not elevate Getts’ 2002 DWI to a third-degree felony. The 1984 conviction was too remote and there was no intervening alcohol-related conviction within ten years of the 1984 conviction. The court reasoned that all three conditions of Tex. Pen.Code Ann. § 49.09(e) were met, making the 1984 conviction unavailable for enhancement purposes: (1) the 1984 conviction was a final conviction, (2) the 2002 offense was committed more than ten years after April 29, 1984 [the date of the 1984 conviction], and (3) Getts was not convicted of another alcohol-related offense within ten years of April 29, 1984. Getts, 155 S.W.3d at 156-57.

In contrast, here, only the first two conditions of Section 49.09(e) have been met: (1) the 1988 conviction is a final conviction, and (2) the 2003 offense was committed more than ten years after June 8, 1988 [the date of the 1988 conviction]. However, the third condition has not been met because Summers was convicted of another alcohol-related offense within ten years of the 1988 DWI conviction — the 1993 conviction. Since all three conditions needed for the 1988 conviction to be unavailable for enhancement were not present, the 1988 conviction was available for enhancement purposes.

We affirm the judgment of the trial court.

      . 87 S.W.3d 557 (Tex.Crim.App.2002).

      . 155 S.W.3d 153 (Tex.Crim.App.2005).

      . " ‘Community supervision' means the placement of a defendant by a court order under a continuum of programs and sanctions, with conditions imposed by the court for a specified period_" Tex.Code Crim Proc. Ann. art. 42.12, § 2(2) (Vernon Supp.2004-2005). Community supervision was previously known as probation.


author: Opinion by Justice MORRIS.

text:
    HOPE’S FINANCIAL MANAGEMENT and Me Okere, Appellants, v. CHASE MANHATTAN MORTGAGE CORP. & Lori J. Lamoreaux, Appellee.
    No. 05-04-00796-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 9, 2005.
    Rehearing Overruled Oct. 6, 2005.

      ME Okere, Dallas, pro se.
    Wm. Lance Lewis, Quilling, Selander, Cummiskey & Lownds, P.C., for Appellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by Justice MORRIS.

This is the latest appeal in a series of lawsuits arising out of an ongoing dispute over the ownership of residential property located in Dallas, Texas. The trial court granted summary judgment to appellee Chase Manhattan Mortgage Corporation on its counterclaims. Appellants Hope’s Financial Management and ME Okere challenge the trial court’s judgment. For the reasons that follow, we affirm the trial court’s judgment.

This dispute dates back to 1996 when Victor Okere purchased property on Castle Bay Drive from Linda and Glen Sewell. At the time of Victor’s purchase, Chase Manhattan held a mortgage on the property. Victor transferred the property to Hope’s Financial, a sole proprietorship whose principals are Victor and ME Ok-ere. In 1997, Chase Manhattan foreclosed on the property asserting the note it held on the property was in default. The property was sold at a non-judicial foreclosure sale and later deeded to the Secretary of Veteran Affairs. The VA deeded the property back to Chase Manhattan on February 28, 2003. About six months later, on August 26, 2003, ME Okere recorded a deed dated February 8, 1999 that purported to convey the property from the VA to Hope’s Financial.

Hope’s Financial first filed the present lawsuit against Chase Manhattan Mortgage Corp. and Lori J. Lamoreaux alleging the 2003 VA deed to Chase Manhattan was fraudulently obtained and invalid. The petition further alleged that Hope’s Financial is the legitimate property owner, has been in possession of the property since 1996, and paid off the balance of the Chase Manhattan loan before the foreclosure sale. Chase Manhattan then filed a counterclaim against Hope’s Financial and ME Okere asserting claims for trespass, unjust enrichment, and injunctive and declaratory relief. Later, the trial court signed an order granting Hope’s Financial’s motion for nonsuit on its affirmative claims. The trial court then granted Chase Manhattan’s motion for summary judgment and rendered a final judgment awarding Chase Manhattan damages, in-junctive and declaratory relief, and attorney’s fees. This appeal followed.

Before turning to the merits of this appeal, we first address the adequacy of appellants’ briefing on certain issues. Appellants represent themselves. Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure. See Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex.App.-Dallas 2004, pet. denied). Although appellants present eleven issues, the five-page argument portion of their brief does not present any discussion, argument, or authority with respect to issues one, two, five, six, seven, nine, and eleven. To the extent appellants mention these issues in other portions of its brief, there is a lack of any cogent argument and a complete absence of any legal authority to support its positions. Rule 38.1 requires appellants’ brief to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex.R.App. P. 38.1(h). Issues are waived if an appellant fails to support his contentions by citations to appropriate authority. See Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex. App.-Dallas 2000, no pet.). Because appellants have provided no discussion, legal analysis or cited any appropriate authority with respect to their first, second, fifth, sixth, seventh, ninth, and eleventh issues, they present nothing for us to review.

Although not one of their numbered issues, appellants also contend the trial court erred in granting declaratory relief to Chase Manhattan because the YA and Victor Okere were not joined as parties to the action as required by section 37.006 of the Texas Civil Practice and Remedies Code. Again, appellants have provided no discussion, authority, or record citations to support their contention that failure to join these parties was reversible error. Accordingly, this complaint is waived. See Tex.R.App. P. 38.1(h); Wolfe, 24 S.W.3d at 647.

In their third and fourth issues, appellants contend the trial court erred in granting summary judgment because the summary judgment evidence raised material fact issues. Appellants do not specifically identify what material fact issues are raised by the summary judgment evidence, but they appear to be exclusively related to ownership of the property. In their brief, appellants mention “plaintiff has a title filed with the public record and an abstract of title was filed.” They also claim Chase Manhattan’s admission that it sold the property to the VA, and its claim that appellants’ deed was fraudulent, “raised controverted issues.” They further assert the 2003 VA deed to Chase Manhattan was not valid or was fraudulent because a February 8, 1999 letter appellants received from the VA stated the VA had no interest in the property. Finally, they assert, without any elaboration or supporting evidence, that the affidavits attached to Chase Manhattan’s summary judgment are a sham that Chase prepared and forced the affiants to sign.

Clearly, ownership of the property was a pivotal issue on which most, if not all, of Chase Manhattan’s claims hinged. In its summary judgment motion, Chase Manhattan asserted multiple grounds for its position that the evidence conclusively established it was the current legal and record owner of the property. In addition to providing evidence of its chain of title, Chase Manhattan also argued res judicata and collateral estoppel precluded appellants from contesting its ownership because appellants raised or could have raised their current ownership claims in their earlier wrongful foreclosure lawsuit against Chase Manhattan. They also contended that even if appellants’ 1999 VA deed was valid, the summary judgment evidence conclusively established Chase Manhattan was the rightful legal and record owner as a bona fide purchaser for value.

Because the trial court did not specify the basis for its ruling, appellants must challenge every ground upon which summary judgment could have been granted to obtain a reversal. See Cullen/Frost Bank v. Commonwealth Lloyd’s Ins., 852 S.W.2d 252, 256 (Tex.App.-Dallas 1993), writ denied per curiam, 889 S.W.2d 266 (Tex.1994). Appellants have not addressed Chase Manhattan’s res judicata, collateral estoppel, or bona fide purchaser grounds. Because appellants have failed to address these alternative grounds, they have not established their evidence precluded summary judgment on the ownership issue. Accordingly, we resolve appellants’ third and fourth issues against them.

In their eighth and tenth issues, appellants argue Chase Manhattan’s claims are barred by various affirmative defenses. To defeat summary judgment based on an affirmative defense, appellants must present sufficient summary judgment evidence to raise a fact issue on each element of the defense. See Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994). Appellants have not cited us to any evidence supporting their affirmative defenses. Appellants have the burden of directing us to the evidence in the record which supports their contentions. See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). It is not our duty to make an independent search of the voluminous summary judgment record for evidence supporting their position. Id. Appellants have thus waived their appellate arguments with respect to their affirmative defenses. We resolve appellants’ eighth and tenth issues against them.

We affirm the trial court’s judgment.


author: HOLLIS HORTON, Justice. DAVID GAULTNEY, Justice,

text:
    AMERICAN INTERSTATE INSURANCE COMPANY, Appellant, v. William E. HINSON, Appellee.
    No. 09-04-369 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on June 16, 2005.
    Decided Aug. 11, 2005.

      Robert T. Cain, Jr., Joseph M. McElroy, Zeleskey, Cornelius, Hallmark, Roper & Hicks, LLP, Lufkin, for appellant.
    Gerald K. Payte, Gloria J. Kologinczak, Payte & Kologinczak, PLLC, Houston, for appellee.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Is the evidence in this workers’ compensation case sufficient to support the jury’s finding that William E. Hinson was not intoxicated at the time of his injury? We review all of the evidence admitted at the trial to evaluate if the jury’s verdict should be affirmed.

HINSON’S EVIDENCE REGARDING INTOXICATION

While employed by Constructors and Erectors (C & E) and working with fellow employees as a steel connector on a raising gang at the Abitibi paper mill in Lufkin, Texas, Hinson fell from a steel structure. Hinson had approximately four or five years of experience in his trade prior to his injury. Hinson worked for C & E for only four days prior to his injury. Hin-son’s work on the morning of the accident began around 7:30 a.m., and he fell at approximately 11:45 a.m. Prior to the accident, Hinson had no problems doing his work, and had worked atop the structure being constructed all morning without coming down for a break.

Just prior to the fall, Hinson and a coworker detached a steel clip that weighed 75 to 80 pounds from the end of a steel cross-piece while sitting on horizontal beams above ground level. Unfortunately, Hinson neglected to re-attach his safety lanyard after moving to the point where he sat on the beam. Hinson attempted to excuse his failure to tie his safety lanyard to a safe structure to an alleged exception to the general tie off rules while working under overhead loads, and to helping his co-worker remove the clip.

When Hinson and his co-worker removed the heavy clip from the steel crosspiece attached to a crane, the end of the cross-piece where Hinson sat swung up and struck him in the face. Hinson was unaware that bolts he had previously secured attaching the opposite end of the cross-piece had been removed by a coworker. When Hinson removed the clip, the end where he was working swung up and struck him. Hinson fell to the ground, and next recalled waking up in the hospital a few days later.

Hinson testified that prior to his injury that morning he felt normal, and he had no trouble aligning the beams in the structure. Prior to the fall, Hinson’s work required him to rely on his balance and walk across beams approximately thirty to thirty-five feet above the ground.

Hinson also testified at trial regarding his use of marijuana. He began using marijuana for recreational purposes at age fifteen, and then began to use marijuana regularly about a year later. Hinson stated that regular use meant that he used marijuana two to three times per week, and as much as daily. Hinson testified that when he began working as a steel connector, he continued to use marijuana regularly but did not normally use marijuana on weekdays. Hinson testified that he never used marijuana while on a job, or before he went to a job. Hinson testified that when he did smoke marijuana after work, he smoked, on average, three to five joints. Hinson denied that smoking three to five joints made him drunk. Hinson testified that he felt the effects of the marijuana five to ten minutes after smoking a joint, and that the effect of the marijuana lasted 25 to 30 minutes.

According to Hinson, on the morning after using marijuana he felt no different than on a morning where he had not smoked marijuana. Hinson testified that the marijuana relaxed him mentally, but he denied that marijuana ever affected him physically. Hinson testified that he used marijuana on a regular basis for four years prior to his accident.

Hinson addressed the effect of his marijuana use at the time of the accident. He denied smoking any marijuana during the two days prior to the incident. On the morning of the incident, a Wednesday, Hinson testified that he felt alert and denied that he suffered from any physical or mental impairment. Hinson testified that no one complained that he was not working at a normal speed, and no one on the morning of the incident criticized his work performance. Nevertheless, Hinson admitted there was marijuana in his system a the time of the injury. Hinson admitted that he smoked marijuana on the week-end before his accident, but could not recall how many joints he smoked the week prior to his accident. Hinson admitted that the urine sample taken after the accident tested positive for marijuana. Hinson presented no expert witness testimony regarding whether his marijuana use would have caused mental or physical impairment. Hinson was the sole witness called to testify on his behalf.

AMERICAN INTERSTATE’S EVIDENCE REGARDING INTOXICATION

American Interstate called three witnesses to testify before the jury. Its first witness, Elmo Hall, Jr., testified that he was C & E’s foreman on the job at the time of the accident. Hall estimated that Hinson was working twenty-five to thirty feet above the ground prior to the fall.

Hall explained that at the time of the accident, Hinson and another C & E employee were attempting to place a T-brace into position while it was held in place by a crane. Hall agreed that the workers needed to swap out a clip on a piece of steel to correct a problem encountered in fitting the steel together.

Hall testified that under the conditions on the day of the incident there were no excuses for Hinson’s not tying off the safety lanyard. Hall disputed Hinson’s testimony that there was other steel suspended above Hinson in the structure prior to the accident. Hall testified that immediately prior to the fall, he observed Hinson walk across a beam without being tied off. Because Hall was concerned that if he yelled he might distract Hinson, Hall began to walk toward the structure to correct Hin-son’s failure to follow the safety rules requiring workers at elevations to be tied off safely. Just as Hall reached the structure, Hinson fell to the ground.

Hall testified that Hinson’s failure to tie off violated the company’s safety policy, and the violation was not normal behavior. Hall gave no testimony that Hinson appeared intoxicated at any time prior to the accident, and described no other incidents involving Hinson that might have evidenced any impairment in Hinson’s normal use of his mental or physical faculties. On cross-examination, Hall admitted that Hin-son had been tied off all day prior to this incident, and was doing his job.

Robert Marsh, a safety director, was American Interstate’s second witness. Marsh investigated Hinson’s accident and concluded that the cause of the accident was Hinson’s failure to use his safety lanyard. Marsh testified that Hinson’s failure to tie off under the circumstances violated company policy. Marsh also testified that his investigation was inconclusive about whether the cross-piece hit Hinson prior to his fall.

In addition, Marsh identified the post-accident urinalysis, and testified that employees were required to consent to post-accident testing as a condition of employment. At some time after the accident, Marsh testified that he was advised the urinalysis showed 264 nanograms per milliliter of marijuana metabolite in Hinson’s urine. Marsh did not testify regarding when the urinalysis sample was taken, or provide any opinions about whether the urinalysis showed impairment at the time of the accident.

The third witness called by American Interstate was Dr. Thomas Kurt. Dr. Kurt, a physician specializing in medical toxicology, has been licensed to practice medicine in Texas since 1978. Dr. Kurt indicated that one-third of his time is spent preparing to testify or testifying in matters regarding causes of injury or death where toxicology is an issue.

Dr. Kurt stated that he was familiar with the definition of intoxication under the Texas Labor Code, and that based on reasonable medical probability, Hinson was intoxicated under the meaning of the term as defined by the Labor Code at the time of his injury. There were no objections to Dr. Kurt’s testimony that Hinson was intoxicated at the time of the accident.

Dr. Kurt testified that his opinion was based on the proper collection of a urine specimen within a few hours of the accident. Dr. Kurt noted that the urinalysis was performed with a gas chromatography mass spectrometry technique that he described as state-of-the-art. Also, in forming his opinion, he looked for circumstances that could have interfered with the urinalysis results. Finally, Dr. Kurt testified that his opinion was also based on his experience and the relevant scientific literature regarding the quantity of marijuana sufficient to cause impairment. None of the scientific literature upon which Dr. Kurt relied is contained in the record.

Dr. Kurt testified that, in his opinion, Hinson’s impairment at the time of the accident was mental, but not physical. Dr. Kurt indicated that studies showed a relationship between impairment in mental function and marijuana use. Dr. Kurt testified that chronic marijuana users suffer an impairment in mental function.

Because the level of marijuana metabolite reported in the urinalysis test result was fairly significant, Dr. Kurt questioned Hinson’s history in which Hinson had denied smoking marijuana for two days prior to the incident. Dr. Kurt explained that a urinalysis test result of 100 to 150 is typical in a subject tested two to three hours after smoking one joint of marijuana. Dr. Kurt also indicated that addicts are not usually reliable historians, and that their histories of drug use are usually understated.

With respect to whether the urine test result demonstrated that Hinson was impaired, Dr. Kurt testified that there was a consensus between two of his toxicological colleagues and himself that impairment begins at a level of 100 nanograms of marijuana metabolite per milliliter. Dr. Kurt opined that at the level of 264 nanograms per milliliter, as shown on Hinson’s urine test, there was no question on his impairment.

On cross-examination, Dr. Kurt explained that the metabolite in the urine is inactive from a psychoactive standpoint. At the point the metabolite is in the urine, it does not affect the brain. In heavy marijuana users, the metabolite can stay in the urine for up to two weeks or longer before being completely out of the system.

At one point, Dr. Kurt indicated studies existed that showed some individuals with no loss of mental or physical function with urinalysis results of between 1085 to 2700. Dr. Kurt then attempted to limit his response and assert that these studies did show some mental deficits in individuals testing positive at these levels. Dr. Kurt acknowledged an anecdotal report in The Journal of Forensic Sciences of a patient with a urinalysis result of 2700, who, on observation, appeared unimpaired. Dr. Kurt pointed out that this anecdotal report was not a peer reviewed study or widely accepted in the field of toxicology.

Dr. Kurt testified that although one could measure the active chemical produced by marijuana in the blood, there were studies that extrapolated the level of active chemicals in the blood from urine tests. Dr. Kurt conceded that because the chemicals that lead to the presence of marijuana metabolite in the urine are stored in organs and body fat, it would be important to know the blood level of the active ingredient in marijuana. Nevertheless, Dr. Kurt did not testify to the level of active chemicals from marijuana use in Hinson’s blood either at the time of the test, or the time of the accident, based upon Hinson’s urinalysis test result.

To explain why no testing for marijuana had been done on Hinson’s blood, Dr. Kurt testified that blood testing is not routinely done in employee testing programs and no blood tests were submitted to him in this case. Dr. Kurt did not recall reviewing any information that indicated Hinson’s blood was tested for marijuana’s active ingredients.

Dr. Kurt agreed that he had never conducted a scientific study on the effects of marijuana. Dr. Kurt testified that he did not need to know Mr. Hinson’s normal physical or mental capacity, and, despite the absence of a blood test, he stated that he could base an opinion regarding Hin-son’s impaired capacity on the urine test results and Hinson’s history of marijuana use.

American Interstate then re-called Hin-son. American Interstate’s attorney reexamined Hinson regarding his historical use of marijuana, and attempted to show that Hinson’s testimony at trial regarding his use of marijuana had changed from his previous testimony before the hearing officer at the administrative trial of his claim. In summary, Hinson’s credibility regarding the accuracy of his history of marijuana use was a hotly contested evidentiary issue.

STANDARD OF REVIEW

The jury, after being presented the evidence in the trial, found that Hinson was not intoxicated at the time of his injury. Because Hinson’s claim was denied at the administrative level, Hinson had the burden of proving by a preponderance of the evidence that he was not intoxicated at the time of the accident. Tex. Lab.Code Ann. § 410.303(Vernon 1996).

In reviewing the jury’s verdict for the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party “crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Thus, we must credit favorable evidence for Hinson if reasonable jurors could, and disregard evidence contrary to the jury’s finding that Hinson was not intoxicated unless reasonable jurors could not.

INTOXICATION UNDER THE COMPENSATION ACT

The workers’ compensation laws of Texas prohibit the recovery of compensation where, at the time of the injury, the employee is intoxicated. Tex. Lab.Code Aun. § 406.032(1)(A) (Vernon 1996). Section 401.013(a) of the Labor Code defines intoxication as the state of:

(1) having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or
(2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:
(A) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;
(B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code;
(C) a dangerous drug, as defined by Section 483.001, Health and Safety Code;
(D) an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or
(E) any similar substance, the use of which is regulated under state law.

Tex. Lab.Code Ann. § 401.013(a) (Vernon Supp.2005).

Since marijuana was the substance at issue, and is a controlled substance under Section 481.002 of the Health and Safety Code, the relevant section of the Labor Code for this appeal is Section 401.013(a)(2)(B). In cases involving marijuana or controlled substances, there is no per se level or test defined by the statute that establishes when a person is intoxicated. The statutory standard for marijuana is relatively subjective because intoxication is defined as “not having the normal use of mental or physical faculties” because of one’s voluntarily using marijuana. See Tex. Lab.Code Ann. § 401.013(a)(2) (Vernon Supp.2005).

As a result of the statutory definition of intoxication, the issue in a compensation case involving marijuana is not whether marijuana was to some degree, however slight, in the claimant’s body at the time of the accident. Also, the issue is not whether a lab test showed a fairly significant amount of a marijuana marker in a claimant’s urine at some point after the accident, although this evidence could be relevant to whether a claimant was physically or mentally impaired at the time of the accident. Rather, the issue is whether the claimant was intoxicated when the accident occurred.

The trial court provided the following definition of “intoxication” to the jury in the jury charge: “[Ijntoxication means the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of marijuana. Normal use of mental and physical faculties is to be judged by whether or not Plaintiff could or could not use his faculties in a manner that a normal, non-intoxicated person would be able to.” No party challenges the definition submitted. The issue submitted by the court along with this definition inquired whether Hinson was intoxicated at the time of the injury.

LEGAL SUFFICIENCY

Hinson’s testimony provided some evidence that he had the normal use of his physical and mental faculties at the time of the injury. American Interstate did not object to Hinson’s testimony regarding his subjective mental and physical status. American Interstate cites no cases, nor have we found any, indicating that, under the subjective test for intoxication established by the statute in a compensation case, the testimony of an expert is required.

American Interstate argues that the expert testimony of Dr. Kurt is conclusive on whether Hinson was intoxicated at the time of the injury. American Interstate asserts that expert testimony is generally necessary in a case involving intoxication due to the ingestion of marijuana, and cites as authority for this proposition Smithhart v. State, 503 S.W.2d 283 (Tex.Crim.App.1973).

Smithhart is distinguishable from the issue presented in this case. In Smith-hart, the Court upheld a trial judge’s evi-dentiary ruling excluding testimony from a police officer. 503 S.W.2d at 285. The police officer would have testified that a driver was under the influence of Valium based upon the officer’s observations of the driver prior to and after a traffic stop. Id. The Court’s opinion reflects that the proponent of the officer’s opinion did not lay a proper predicate to show the officer was familiar with the effects of taking Valium on one’s ability to drive before offering the officer’s testimony. Id. at 285 n. 1. Because no predicate was laid prior to the officer’s opinion being offered, the trial judge excluded the officer’s opinion regarding whether taking Valium affected the driver’s ability to drive his car. Without any other opinion evidence in the case to establish that the driver was intoxicated, the court reversed a jury finding of intoxication. Id. at 286.

In Smithhart, the Court cites Pointer v. State, 467 S.W.2d 426 (Tex.Crim.App. 1971). Id. at 285. In Pointer, the Court found no reversible error where there had been no objection to testimony regarding the fact that a defendant appeared to be under the influence of narcotics. 467 S.W.2d at 428. The Court also found no error in the admission of the testimony of a witness that the defendant appeared to be under the influence of narcotics where a proper predicate was laid that the witness had experience dealing with persons under the influence of narcotics. The court sustained a jury verdict based, in part, on the testimony admitted without objection. Id. This case is more similar to Pointer, than it is to SmithhaH, because as in Pointer there was no objection to the witness’s testimony.

Smithhart is also distinguishable because the ultimate issue was whether the driver was intoxicated, whereas the issue in Hinson’s case is whether Hinson was not intoxicated. The proffered testimony in Smithhart was a lay witness’s testimony that another person was intoxicated, and here, the proffered testimony is from a witness who ingested an illegal substance and testified to the effects of the substance on him. Potential evidentiary problems that may exist with respect to persons testifying to the effect of drugs on others, including the necessity to lay a proper predicate under Tex.R. Evid. 602, are completely different from whether the opinion testimony of the person who ingested the substance is rationally based on his perception under Tex.R. Evid. 701. In summary, even over objection, it is usually much easier to lay a predicate for testimony from a witness with personal knowledge than from a person who is an observer. We need not decide the question, however, because there was no objection to Hinson’s testimony. Although the evidence that Hinson had normal use of his faculties was controverted, the jury was entitled to believe Hinson’s testimony, together with the other circumstantial evidence that was consistent with Hinson’s contention that he was not mentally or physically impaired at the time of the accident. In addition to Hinson’s testimony, the record included testimony about the work activities Hinson successfully completed prior to his fall, including evidence that Hinson worked at heights requiring him to walk on steel beams while carrying up to eighty pounds.

Although not directly on point, this Court has addressed whether expert testimony is required in criminal cases involving alcohol in order to prove intoxication. In Letner v. State, 138 S.W.3d 539 (Tex. App.-Beaumont 2004, no pet.), the sole witness was a Department of Public Safety trooper who testified to his observations of Letner during a traffic stop, and who concluded that Letner did not have the normal use of his mental and physical faculties. Letner, 138 S.W.3d at 541. No evidence was introduced as to Letner’s blood alcohol level. The jury convicted Letner of driving under the influence of alcohol, and Letner argued on appeal that the evidence consisting of the observations of the police officer and a videotape showing that he had diminished control over his mental and physical faculties was insufficient to support his criminal conviction. Id. at 541. In discussing its decision to uphold the jury’s verdict against a sufficiency of evidence challenge, this court stated, “Unlike blood alcohol content, use of mental and physical faculties is patently observable and does not absolutely require scientific testing in order to be established.” Id. at 542.

Thus in a case of alcohol intoxication, in which the State bases its theory on statutory language involving the normal use of mental and physical faculties, we have held that expert evidence is not absolutely required to establish diminished use of physical and mental faculties. The rationale of that opinion is that abnormal behavior is observable, and that non-experts are competent to provide testimony relevant to whether a person acted abnormally. We believe the converse is also true, that normal behavior is observable, and that non-experts are competent to provide testimony relevant to whether a person acted normally. In summary, Hinson’s testimony and other testimony that tended to show Hinson acted normally immediately prior to the fall constitutes some evidence that he possessed normal control over his physical and mental faculties at the time of the injury.

We also review the evidence contrary to Hinson’s contention that he possessed normal control over his physical and mental faculties at the time of his injury. In reviewing the legal sufficiency of the evidence, because Hinson prevailed at trial, we are required to disregard Dr. Kurt’s testimony that Hinson was intoxicated at the time of the accident, and the urinalysis test results “unless reasonable jurors could not.” City of Keller, 168 S.W.3d at 808.

Dr. Kurt acknowledged that Hinson was not under any physical effect from his marijuana use at the time of the injury, and Dr. Kurt relied solely on the proposition that Hinson suffered a mental effect from his marijuana use at the time of his accident. Dr. Kurt further acknowledged that the effect on Hinson’s mental status due to marijuana at the time of the accident was subtle.

In evaluating Dr. Kurt’s opinion, the jury could also consider evidence that undercut his ultimate opinion on Hinson’s intoxication at the time of the injury. First, on cross-examination, Dr. Kurt acknowledged that he had no baseline on Mr. Hinson to establish what was “normal” for Hinson when Hinson had no marijuana in his body.

Second, Dr. Kurt did not define “normal” use of mental faculties. In absence of any scientific evidence conclusively establishing normal use, the jury was free to determine what would constitute normal use in Hinson’s case.

Third, one of the foundations of Dr. Kurt’s opinion, that the urinalysis had been collected “properly,” appears contradicted by information on the test itself. Dr. Kurt testified that his first step in forming his opinion was to “look for the proper collection of a urine specimen, approximately within a few hours of the time of the accident[.]” The test report of Hin-son’s urine specimen states that it was collected on May 18, 2001, sixteen days after Hinson’s May 2, 2001 injury. American Interstate offered no evidence to explain why the collection date on the urinalysis test that it offered into evidence showed that the urine was collected on May 18, and not within a few hours of the accident.

Fourth, Dr. Kurt’s testimony does not address how a urinalysis taken at a point in time after the accident correlates to an earlier time when an injury occurred. Dr. Kurt’s testimony in this case does not conclusively establish that Hinson was intoxicated due to his marijuana use at the time of the accident.

American Interstate argues that its evidence of Hinson’s intoxication is conclusive. It cites Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 828 (Tex.1998), and Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546 (Tex.App.-San Antonio 1994, no writ) in support of its argument. In Uniroyal, the Texas Supreme Court states “The general rule is that opinion testimony, even when uncontroverted, does not bind the jury unless the subject matter is one for experts alone[.]” 977 S.W.2d at 338. In Uniroyal, the court held that the jury was not bound by expert testimony that a tire rim design was unreasonably dangerous. Id. at 339. Thus, Uniroyal is one of a multitude of cases under Texas law in which expert testimony regarding a subject was not binding on the jury.

We also note that in Uniroyal, the Supreme Court cited Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944) in support of the proposition that expert witness testimony is not generally binding. Uniroyal, 977 S.W.2d at 339. In Coxson, the issue was whether a life insurance policyholder who died due to tuberculosis was in good health when he obtained a life insurance policy. Coxson, 179 S.W.2d at 943. The policyholder’s treating physician testified that in his opinion the policyholder had suffered from tuberculosis for over two years before the policy issued. Id. at 944. The policyholder’s beneficiary introduced no expert testimony, but produced witnesses who had known the policyholder during relevant time periods prior to the issuance of the policy, and who testified to facts and circumstances showing that during the time when the policy was issued the policyholder was in good health. Id. at 944^15. In Coxson, the Texas Supreme Court held that whether the policyholder was in good health when the policy issued was for the jury to determine, despite testimony to the contrary by the policyholder’s treating physician. Id. at 945.

In Novosad, the San Antonio Court of Appeals cites the general rule that “[u]n-controverted expert testimony may be regarded as conclusive if the nature of the subject matter requires the jury to be guided solely by the opinion of experts and the evidence is otherwise credible and free from contradictions and inconsistency.” Novosad, 881 S.W.2d at 550. The court then affirmed a jury verdict rejecting an award of future medical expenses for a future surgery because the evidence of whether claimant required future surgery due to injuries received in an accident conflicted with other expert opinion introduced at the trial. Id. at 551. Therefore, Novosad is yet another case in which a Texas court rejected the argument that a jury was bound by the expert testimony. In summary, American Interstate cites a general rule that uncontroverted expert testimony may be regarded as conclusive, but does not bring any cases to our attention that hold a jury is bound by expert evidence in a case where the issue is intoxication.

Although not cited by the parties, we have identified one circumstance where a scientific test conclusively establishes a disputed issue. In Murdock v. Murdock, 811 S.W.2d 557 (Tex.1991), a paternity case, the trial court found a putative father to be the father of a child despite evidence of a blood test excluding him as the biological father. 811 S.W.2d at 558. The Supreme Court reversed, and held that a paternity test establishing a zero probability of paternity is conclusive. Id. at 560. We note, however, that this case was decided under a Family Code provision that required trial courts to dismiss cases when blood tests showed that a putative father was not the biological father of the child. Id Thus, Murdock arose in the context of a statutory scheme making the blood test conclusive of the paternity issue, and is distinguishable from a case arising under the Labor Code where the Legislature has chosen not to make a drug test conclusive on intoxication.

In cases of alcohol intoxication, we note that scientific tests taken after the offending conduct are not treated as conclusive. For example, test results showing alcohol in a driver’s system taken after the person has been driving are not legally conclusive that the driver was intoxicated at the time he drove the vehicle. In Forte v. State, 707 S.W.2d 89, 94-95 (Tex.Crim. App.1986), the Court stated:

To be sure, if the State relies upon the 0.10% definition of intoxication, then such proof will normally appear in the form of a chemical test showing the alcohol concentration in a defendant’s body near the time of the offense. However, a conviction will not necessarily follow from the offer of such a test. First, the trier of fact must still be convinced beyond a reasonable doubt that the chemical test provides trustworthy evidence of alcohol concentration in a defendant’s breath, blood or urine. Second, the jury must still be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a 0.10% alcohol concentration in his body at the time of the offense.

707 S.W.2d at 94-95 (emphasis in original).

The jury, as the finder of fact, is the sole judge of the credibility of the witnesses and the weight to give their testimony. See Leyva v. Pacheco, 163 Tex. 638, 641, 358 S.W.2d 547, 549 (Tex.1962). The jury is free to believe one witness and disbelieve another, and to resolve inconsistencies in the testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

Since we are required to indulge in every inference in favor of the jury’s verdict, we conclude that a reasonable jury could have reasonably disregarded Dr. Kurt’s testimony and the urinalysis test result in reaching its conclusion that Hinson was not intoxicated at the time of his injury. In summary, the scientific and expert evidence introduced during the trial in this case is not conclusive as a matter of law that Hinson was intoxicated at the time of the accident. Therefore, in reaching its decision that Hinson was not intoxicated at the time of the accident, the jury in this case could reasonably accept Hinson’s evidence that he felt normal and that he was not mentally or physically impaired. The jury could also consider other circumstantial evidence showing his normal activity at work for half a day before the accident in a strenuous job without incident. American Interstate’s point of error challenging the legal sufficiency of the evidence is overruled.

FACTUAL SUFFICIENCY

American Interstate also argues that the evidence is factually insufficient to support the verdict. Because Hin-son had the burden of proving he was not intoxicated, American Interstate must show that there is insufficient evidence supporting the jury’s finding to overcome the jury verdict. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App.-Amarillo 1988, writ denied). In addressing the factual insufficiency point, we must examine both the favorable and unfavorable evidence regarding the jury finding that Hinson was not intoxicated at the time of his injury, and must set aside the jury verdict only if the evidence supporting the verdict is so weak that it is clearly wrong and manifestly unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

Based on the evidence in this record, we are unable to conclude that the jury verdict is manifestly wrong or unjust. In Letner, lay observations of a driver’s behavior supported a jury finding of intoxication. Implicitly, it must be true that persons capable of judging abnormal use of physical and mental faculties also have knowledge of what normal use of those same faculties would be. As a result, circumstantial evidence that a person behaved normally is some evidence that a person is not intoxicated.

American Interstate’s evidence of intoxication consisted largely of opinion evidence by Dr. Kurt. The opinions placed into evidence from Dr. Kurt were largely eonclu-sory, without a sufficient showing between the data relied upon and the opinion offered. The fact that Dr. Kurt’s opinion was offered, without objection, adds nothing to its probative force. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 713 (Tex.1997)(underlying data evaluated in determining if the opinion itself is reliable). Also, the ultimate issue in Hinson’s case was whether he had the normal use of his mental and physical faculties, an area not delegated solely to expert opinion.

On this record, the jury could rationally disregard the testimony of American Interstate’s expert. The scientific evidence might be more compelling under another record, and we do not intend to imply that expert evidence cannot in the appropriate case render lay testimony factually insufficient. On the other hand, when the record demonstrates why reasonable jurors could disregard evidence adverse to its answers to the issues, we may not substitute our judgment for that of the jury merely because we would have reached a different conclusion. We also overrule American Interstate’s factual insufficiency argument. Accordingly, we affirm the trial court’s judgment in favor of William E. Hinson.

AFFIRMED.

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. Because I believe the evidence is factually insufficient to support the jury verdict, I would reverse and remand the ease for a new trial.

Some scientific and medical information requires expert explanation for jurors and judges to understand the evidence. See, e.g., Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)(frostbite causation); Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713-14 (Tex.1966)(cancer acceleration). Under the facts of this case, that is true with respect to the drug test, a key piece of evidence. A urine sample taken within an hour of the accident demonstrated plaintiff had an intoxicant in his system at the time of the accident. That fact was undisputed at trial and is not disputed on appeal. Whether that level necessarily means Hinson was intoxicated requires expert explanation. Hinson offered none.

The only expert testimony in the record for the jury and for this Court to consider is that the level of intoxicant demonstrated by the urine sample established Hinson’s intoxication at the time of injury. The only evidence offered by Hinson was his own testimony. He testified he had not used the intoxicant within the last forty-eight hours; he did not feel anything but normal. Nevertheless, I believe under these circumstances, to meet his burden of proof, Hinson was required to offer controverting expert testimony to explain why the undisputed results of the urine sample did not establish intoxication.

I do not believe the various reasons suggested by the majority are sufficient to explain away Dr. Kurt’s testimony about the drug test results. Based on the urine sample test results and reasonable medical probability, Dr. Kurt testified Hinson was intoxicated, as that term is defined by the Labor Code, at the time of the injury. Tex. Lab.Code Ann. § 401.013 (Vernon Supp.2005). As the majority notes, there were no objections to Dr. Kurt’s testimony that Hinson was intoxicated at the time of the accident. Dr. Kurt explained he looks “for the proper collection of a urine specimen, approximately within a few hours of the time of the accident[J” Hinson says in his brief to this Court that urine samples were taken for drug screening purposes within an hour of the accident, and he did not argue at trial and does not say on appeal that a urine sample was collected untimely.

The majority relies on a date neither party mentioned at trial or on appeal. Given Dr. Kurt’s expert testimony that he checks for timely collection of a urine sample and the lack of any challenge to that assertion, the date on the report is likely of no actual significance to the intoxication issue. Rather, the date likely refers to the date the sample was submitted for testing. The safety director of Hinson’s employer explained what happened as follows:

Q. [Defense Counsel] Okay. Now, what — how did — how did it come that a urine sample was taken from Hinson after this accident? Did you direct that?
A. I directed by telephone to the hospital to take a post-accident drug screen sample.
Q. All right. And then subsequent to that time were you advised by the hospital that there was a presumptive positive on the test?
A. Yes. It wasn’t that particular day, but there was — time has elapsed, yes.
Q. Then in accordance with normal policy, because it was presumptive positive, did you request a quantitative analysis? A. I did.
Q. And that was conducted; and that is the report of that quantitative analysis that you have there, is it not, sir?
A. Yes, sir. That is.

Even if the jury rested its verdict on the date reflected on the report, that evidence is too weak to support the verdict given the undisputed contrary evidence concerning the date the sample was collected.

Hinson’s own testimony was some evidence he was not intoxicated, although too weak to support the verdict considering the contrary evidence in the record. Hin-son admits he had a certain level of intoxicant in his system at the time of the accident. He presented no evidence to explain the drug test. In my view, under the circumstances he did not meet his burden of proof. The case should be remanded for a new trial.

      . City of Keller v. Wilson, 168 S.W.3d 802, at 808 (Tex. 2005).

      . City of Keller, 168 S.W.3d at 808; Associated Indent. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998).

      . See, e.g., McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)(explaining that fact finder who is evaluating expert testimony has considerable discretion and may reject expert testimony and accept lay testimony instead); Broussard v. Moon, 431 S.W.2d 534, 537 (Tex.1968)(explaining that witness's qualification as an expert does not preclude fact finder from exercising considerable discretion in determining degree of reliance to afford expert’s opinion); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (Tex.l944)(explaining that uncontroverted expert opinion testimony is not conclusive as it "is peculiarly within the province of the jury to weigh opinion evidence, taking into consideration the intelligence, learning, and experience of the witness and the degree of attention which he gave the matter” unless the testimony’s subject matter about which, the fact finder, aided by its experience and knowledge would not be able to determine correctly). We previously have followed these cases as have other of our sister courts. See, e.g., O’Connor v. Miller, 127 S.W.3d 249, 254 (Tex.App.-Waco 2003, pet. denied); Selectouch Corp. v. Perfect Starch, Inc., Ill S.W.3d 830, 838 (Tex.App.-Dallas 2003, no pet.); Walker v. Ricks, 101 S.W.3d 740, 748 (Tex.App.-Corpus Christi 2003, no pet.); Ponce v. Sandoval, 68 S.W.3d 799, 806-07 (Tex.App.-Amarillo 2001, no pet.); Akers v. Stevenson, 54 S.W.3d 880, 884 (Tex.App.-Beaumont 2001, pet. denied); Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882 (Tex.App.-Beaumont 2001, pet. denied); Olin Corp. v. Smith, 990 S.W.2d 789, 797 (Tex.App.-Austin 1999, pet. denied)(“Opinion testimony does not establish any material fact as a matter of law and is never binding on the trier of fact.”); Green v. Parrack, 974 S.W.2d 200, 205 (Tex.App.-San Antonio 1998, no pet.); Sipes v. General Motors Corp., 946 S.W.2d 143, 154 (Tex.App.-Texarkana 1997, writ denied).

      . Former Family Code section 13.05, under which Murdock was decided, was repealed in 1995 as a part of the re-enactment of Family Code, Title 2. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Gen. Laws 282. Currently, Family Code section 160.505 addresses paternal genetic testing. Tex. Fam. Code Ann. § 160.505 (Vernon 2002).


author: PER CURIAM.

text:
      In re Jason Michael FERGUSON.
    No. 09-05-255 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted July 6, 2005.
    Decided Aug. 11, 2005.

      Bruce N. Smith, Smith & Webster, Beaumont, for relator.
    Michael S. Ratcliff, Jasper, for real party in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

PER CURIAM.

Relator Jason Michael Ferguson (“Jason”) seeks a writ of mandamus compelling the Honorable Joe Bob Golden, Judge of the 1st District Court of Jasper County, Texas, (“Respondent”) to grant his motion to transfer venue of a petition to modify in a suit affecting the parent-child relationship, and enter an order transferring venue to Jefferson County, Texas. Respondent has agreed, sua sponte, to stay further proceedings at the trial court level pending resolution of this mandamus. For reasons stated below, we conditionally grant relief.

FACTUAL AND PROCEDURAL BACKGROUND

In his second issue, Jason contends that Respondent abused his discretion by failing to enter the transfer order transferring the proceedings to Jefferson County, Texas, following an evidentiary hearing conducted on April 20, 2005. Jason argues that, pursuant to Tex. Fam.Code Ann. § 155.201(b) (Vernon 2002), the evidence produced at the hearing overwhelmingly supported his contention that D.T.F., the child subject to the modification suit, resided in Jefferson County, Texas, for a six-month period immediately prior to the filing of the modification action. Jason and real party in interest, Hope Lelay Ferguson Hood Durham (“Hope”), were divorced in Jasper County, Texas, on November 21, 1997, in Cause Number 19,654. The divorce decree made provisions for the then-unborn D.T.F., and later modified the decree with regard to visitation of D.T.F. by Jason. Apparently, Hope was named Sole Managing Conservator by the trial court at the time of the divorce and she remained in that capacity up to the day of the transfer hearing.

Subsequent to the 1997 divorce, Hope married Brian Durham. The record reflects that a hand-written instrument dated “July 10, 2003,” was apparently filed with the Jasper County District Clerk’s Office by Hope. The pertinent portion of this instrument reads as follows:

July 10, 2003
To Whom It May Concern:
reference: cause no 19654
Please change the address in my file to:
1003 Avenue B Apt 14
Nederland, TX 77627
new phone numbers are
home (409) 721-[_]
work (409) 866 — [_]
Could you please put these copies of my child support checks into my file?
Thanks
Hope Hood

On November 30, 2004, Jason filed a petition to modify the parent-child relationship in the Jasper County district court having continuing, exclusive jurisdiction, in Cause Number 19,654. Along with his petition to modify, Jason also filed his motion to transfer. Contained in his motion as “Grounds for Transfer,” was the following averment: “The principal residence of the child is in JEFFERSON County, Texas, and has been in that county during the six-month period preceding the commencement of this suit. Venue is proper in that county.”

Hope answered suit, and subsequently filed a controverting affidavit on February 23, 2005, and an amended controverting affidavit on April 20, 2005, the day of the hearing. Neither affidavit denied that she and D.T.F. were living in Jefferson County at the time Jason filed the motion to transfer. The affidavits did explain that D.T.F., Hope, Hope’s new husband, and another child had “plan[ned]” to move to Jasper County in December of 2004, but due to a life-threatening heart condition involving her new-born baby, the move to Jasper was delayed and would not occur until “the completion of the school year of 2005[.]” In her amended controverting affidavit, Hope stated for the first time that she and her family, including D.T.F., “five in two residents, [sic] and presently we are living in a dual residency of Jasper and Jefferson County.” This affidavit further explained that the Jefferson County residence would cease in May of 2005, at which time “in all likelihood, our permanent residence will be maintained in Jasper County, Texas.” As previously noted, testimony was taken by Respondent with regard to the motion to transfer. At this hearing, Jason introduced documents indicating that D.T.F. had been enrolled in an elementary school in Nederland, Jefferson County, Texas, for the school years of 2004 and 2005. There was also testimony from Jason to the effect that D.T.F.’s residence for “the last couple of years” had been in Nederland. Hope, on the other hand, testified that her residence, and that of D.T.F., was Jasper, and that they were “staying] in Nederland while my husband is working,” but that any time there is no school and her husband is off from work the family “come[s] back home to Jasper.” Hope testified to a particular address in Jasper County that was her residence with that address also used for purposes of filing her income tax return. A copy of a joint income tax return for the tax year 2004 was introduced into evidence displaying the Jasper address. Hope further testified that she and her family had returned to Jasper “every weekend” during the entire two-year period when they were also residing in Neder-land. She further indicated that once the 2005 school-year ended the family was relocating to Jasper “permanently.” Hope added that in addition to every weekend, she and her family also returned to Jasper on holidays.

Hope’s mother-in-law, Cindy Durham, was the next witness and provided essentially the same testimony as Hope; that D.T.F., Hope, and the rest of the family lived at Cindy’s home when in Jasper. Cindy agreed that Jasper County was “always” where Hope and her family maintained their residence and that they “moved” to Jefferson County because it was closer to Brian Durham’s job. Cindy believed that the total amount of time D.T.F., Hope and her family stayed at Cindy’s home during the year was greater than fifty percent.

PREREQUISITES TO MANDAMUS

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal. In re Daisy Mfg. Co., Inc., 17 S.W.3d 654, 658 (Tex.2000) (orig.proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.

MANDATORY TRANSFER

Transferring a case to a county where the child has resided for more than six months is a mandatory ministerial duty under section 155.201 of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987) (orig.proceeding); Bollard v. Berchelmann, 921 S.W.2d 861, 863 (Tex. App.-San Antonio 1996, orig. proceeding). An order transferring or refusing to transfer the proceeding is not subject to interlocutory appeal. Tex. Fam.Code Ann. § 155.204(e) (Vernon 2002). Therefore, mandamus is available to compel mandatory transfer in a suit affecting the parent-child relationship. Proffer, 734 S.W.2d at 672; In re Sanchez, 1 S.W.3d 912, 914 (Tex.App.-Waco 1999, orig. proceeding).

As the instant cause is not an original suit affecting the parent-child relationship, but is instead a request to transfer a suit to modify an order issued by a court with continuing, exclusive jurisdiction, Subchap-ter C of Chapter 155 of the Texas Family Code contains the pertinent statutory provisions. See Tex. Fam.Code Ann. §§ 155.201 — 155.207 (Vernon 2002). See also Tex. Fam.Code Ann. § 103.001(a)(1) (Vernon 2002). Section 155.201, entitled “Mandatory Transfer,” provides the following under subsection (b):

(b) If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.

Tex. Fam.Code Ann. § 155.201(b).

Additionally, section 155.203 provides additional instruction regarding such transfer proceedings:

In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the six-month period preceding the commencement of the suit.

Tex. Fam.Code Ann. § 155.203 (Vernon 2002).

Guidelines for initiating, responding to, and conducting a transfer proceeding are set-out under Tex. Fam.Code Ann. § 155.204 (Vernon 2002). If a timely motion to transfer is filed, any party desiring to contest the motion must file a controverting affidavit denying that grounds for the transfer exist. Id. at § 155.204(b). If a controverting affidavit contesting the motion to transfer is timely filed, each party is entitled to ten days’ notice of the hearing on the motion and only evidence pertaining to the transfer may be taken at the hearing. Id. at § 155.204(c), (d).

In the instant case, Hope filed her first controverting affidavit on February 23, 2005, and later filed an amended controverting affidavit on April 20, 2005. In his petition for writ of mandamus, Jason argues that the February affidavit cannot be considered a timely filed controverting affidavit because the affidavit does not deny the fact of D.T.F.’s residency in Jefferson County for at least six months prior to the filing of the suit. In support of this proposition, Jason cites two cases: In re Daly, 148 S.W.3d 578 (Tex.App.-El Paso 2004, orig. proceeding); and In re Sanchez, 1 S.W.3d 912 (Tex.App.-Waco 1999, orig. proceeding). Both cases are distinguishable in that in both cases the parties opposing transfer either failed to file controverting affidavits entirely, or the controverting affidavits filed were clearly untimely under the requirements of section 155.204(b). See Daly, 148 S.W.3d at 581; Sanchez, 1 S.W.3d at 915.

In our case, Jason admits Hope’s February affidavit was timely filed, but asserts that it did not deny D.T.F’s residence in Jefferson County. As it appears to be a good-faith effort on Hope’s part to controvert Jason’s allegation that D.T.F. did not reside in Jasper County at the time of suit, we decline to hold the February affidavit untimely as a matter of law. At any rate, the record contains Hope’s amended controverting affidavit filed on the day of the hearing which included the “dual residency” contention. Although Jason objected to Respondent’s consideration of the amended affidavit at trial, it is not clear that Respondent was prohibited from considering it. In any event, Jason does not provide argument or authority in his petition for writ of mandamus for excluding consideration of Hope’s amended affidavit as a clear abuse of discretion by Respondent. In Hope’s response to the petition for writ of mandamus, cases are cited for the proposition that a person’s “domicile” is distinct from a person’s “residence.” Hope’s general contention is that while the law permits a person only one “domicile,” the law does permit a person to have one or more “residences.” However, none of Hope’s cases involve application of provisions from the Texas Family Code. As sole managing conservator of D.T.F., Hope had the exclusive right to designate D.T.F.’s primary residence. See Tex. Fam.Code Ann. § 153.132(1) (Vernon Supp.2005). As noted above, the record contains a handwritten change of address dated “July 10, 2003,” filed with the Jasper County District Clerk’s office, which lists the new address in Jefferson County. To counter the effect of this evidence, Hope and Cindy testified that it was always Hope’s intention to keep Jasper as her permanent place of residence as shown by the fact of the family’s continued weekend, holiday, and summer-time presence in Cindy’s Jasper County home.

We do not deny that for purposes of construing other venue provisions contained in various Texas codes and statutes the concept of “dual residency” or of “domicile versus residence” has its place. See In re Estate of Steed, 152 S.W.3d 797, 803 (Tex.App.-Texarkana 2004, pet. filed) (citing Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 139-40 (1951)). However, section 155.203 requires the trial court to look to the child’s “principal residence” during the six-month period in question. As noted above, the order for which Jason seeks modification was rendered in Jasper County in Cause Number 19,654. Hope’s handwritten change of address notice to the Jasper County District Clerk’s office referenced it to “cause no 19654.” Therefore, Hope’s July 10, 2003, notice clearly designated the address listed in Jefferson County as her residence, and as D.T.F.’s residence, as required under the Texas Family Code. See Tex. Fam.Code Ann. §§ 105.006(a)(2), (b) & 105.007 (Vernon 2002 & Supp.2005). Unless other written designation by Hope was made subsequent to July 10, 2003, to the Jasper County District Clerk and/or to Jason indicating a “current residence” in Jasper County, the Jefferson County address was D.T.F’s “principal residence” for purposes of compliance with standard Texas court orders in suits affecting the parent-child relationship.

We find that Hope’s attempt to distinguish the legal concepts of “domicile” and “residence” do not aid her under the particular facts in the record before respondent at the time of his ruling. Recall that Hope’s contention at the hearing, and now before us, is that she proved that Jasper County was her, and D.T.F’s, permanent place of residence by proving “dual residency.” She directs our attention to the case of In re Estate of Steed, 152 S.W.3d at 803, for the proposition that a person may have only one domicile, but there may be several residences. Steed involved, inter alia, determination of the proper venue in a probate matter. Id. at 802. We do not decide or even imply that provisions contained in the Texas Probate Code concerning venue have any legal application to venue provisions in the Texas Family Code. Nevertheless, a portion of the discussion in Steed illustrates our concern with Hope’s proof.

As noted in Steed, the general elements proving the legal concept of “domicile” are: 1) an actual residence, and 2) the intent to make it a permanent home, with the word “home” being treated as meaning “a true fixed and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Steed, 152 S.W.3d at 804 (citing Snyder, 241 S.W.2d at 139). The record before us indicates that the “actual residence” in Jasper where Hope, D.T.F., and the rest of the family stayed on weekends and holidays belonged to Cindy Durham: there was no testimony that Cindy’s home was intended to be Hope’s permanent residence. Indeed, Cindy’s testimony indicated that Hope and her husband were “looking at various homes” over a six or seven month period prior to the hearing. With regard to the Jefferson County address, Hope’s affidavits and testimony indicated it was never intended to be her permanent residence but was used merely to facilitate her husband’s access to his job in Beaumont. In essence, the record is silent as to any evidence of “permanence” with regard to either the Jefferson County address or the Jasper County address.

Although evidence of intent is usually needed in order to prove a permanent residence, intent alone is not sufficient. See Owens Corning v. Carter, 997 S.W.2d 560, 570 (Tex.1999). In the instant case, even taking all of Hope’s evidence and testimony regarding her intent to have Jasper County as her permanent place of residence, the undisputed evidence is that the Jefferson County address was the one Hope designated as her residence with the Jasper County District Clerk’s office. The fact that D.T.F. was enrolled in a Jefferson County school until after the hearing date indicates the principal fixed residence for Hope, D.T.F., and the rest of the family for at least six months prior to the filing of Jason’s petition to modify was Jefferson County. Documents also before the trial court indicate that on two separate occasions Hope was served with civil process at the Jefferson County address. We decline to embrace the concept of “dual residences,” under the facts and circumstances of this case. We therefore find the respondent abused his discretion in his application of the facts to the controlling legal principles.

CONCLUSION

The respondent had a mandatory duty to transfer this suit affecting the parent-child relationship to Jefferson County because D.T.F. had resided in Jefferson County for at least six months prior to commencement of the modification suit. Respondent abused his discretion in denying the motion to transfer. Because Jason does not have an adequate remedy at law, we conditionally grant the mandamus relief requested. We trust that the respondent will vacate its order denying the motion to transfer and transfer this suit to Jefferson County. The writ will issue only if the respondent fails to do so.

WRIT CONDITIONALLY GRANTED.

      . Filed with her response to Jason’s petition for writ of mandamus was a motion for emergency relief to which Hope attached three "exhibits” which were not before the Respondent when he made his ruling. While we recognize that this Court may take judicial notice of its records made part of a mandamus proceeding, any additional documents or instruments must also have been made a part of the trial court record. See Tex.R.App. P. 52.3(j)(l)(A), (2); 52.7(a)(1) (requiring documents submitted with original proceeding to have been filed in the underlying proceeding). As the three "exhibits” attached to Hope's motion for emergency relief apparently came into existence after the April 20, 2005, hearing, they could not have been made part of the record in the trial court. We are, therefore, precluded from considering them in this original proceeding.