source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    TRI-STEEL STRUCTURES, INC., Appellant, v. BAPTIST FOUNDATION OF TEXAS, Individually and as Trustee, Maurine P. Myers, Dorothy N. Myers And Mark A. Kuhn, Trustee of the Dewitt Luther Myers and Maurine Parker Myers Trust, Appellees.
    No. 2-03-207-CV.
    Court of Appeals of Texas, Fort Worth.
    May 26, 2005.

      William L. Wolf, P.C., William L. Wolf and Barton M. Reeder, Dallas, for Appellant.
    Haynes and Boone, LLP, Georger Bramblett, Jr., Patrick D. Keating and Charles G. Orr, Dehay & Elliston, L.L.P., and Charlene R. Echols, Dallas, for Appel-lees.
    Panel A: CAYCE, C.J.; WALKER and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

Appellant Tri-Steel Structures, Inc. (“Tri-Steel”) appeals from a final judgment granted to Appellees Baptist Foundation of Texas (“the Foundation”), individually and as trustee, Maurine P. Myers and Dorothy N. Myers (collectively “Myers”), and Mark A. Kuhn (“Kuhn”), trustee of the Dewitt Luther Myers and Maurine Parker Myers Trust (“the Trust”). We will affirm.

II. Factual Background

This case involves an attempted extension of a lease through a method of notice not in strict compliance with requirements under the lease. In 1982, Tri-Steel leased some real property in Denton County from Myers. The two lease agreements (“1982 leases”) were for five years, with a five-year option-to-extend provision. After exercising the option, Tri-Steel occupied the property through 1992 under the 1982 leases and extension provisions. A new lease was negotiated in 1992 for the property that had a three-year term commencing September 1, 1992. An addendum to the 1992 lease allowed a three-year extension option at the end of the term.

On December 12, 1995, the parties executed an Amendment to Lease Agreement (the “Amendment”), amending certain provisions and extending the 1992 lease until August 31, 2000. The Amendment provided that any term of the 1992 lease not amended by the Amendment remained in effect. The Amendment also specified in part that “[i]n order to exercise this option [to extend the lease beyond August 31, 2000], [tjenant must give notice to [landlord in writing, by certified mail, on or before 90 days prior to the termination of the extended term.”

Prior to the date of the Amendment, Myers and Tri-Steel had a history of not following the exact terms of their agreements with regard to written notifications and using certified mail but had on occasion acted more informally.

In August 1998, Myers transferred three-quarters’ ownership interest in the property to the Foundation and the remaining one-quarter to the Trust administered by Kuhn. Following this transfer, the Foundation managed the property, served as landlord, and enforced the terms and conditions of the lease agreements more strictly than Myers. On May 8, 2000, approximately four months before the 1992 lease was to terminate, the Foundation sent Tri-Steel a letter indicating in part that it had “every intention of enforcing all the rights of the landlord under the lease.” It is not disputed that Tri-Steel did not exercise its option to extend the 1992 lease by the method to which it had agreed — in writing by certified mail ninety days or more before the 1992 lease termination date.

III. Procedural Background

After not receiving a written notice of extension in conformance with the literal terms of the Amendment, the Foundation filed an eviction lawsuit in Denton County after Tri-Steel allegedly refused to remove all its possessions from the property at the expiration of the lease, August 31, 2000. Following a jury verdict in favor of the Foundation, a writ of possession was issued and Tri-Steel was evicted from the property on October 30, 2000. Tri-Steel sued the Foundation in June 2001 and also filed lis pendens notices. Following the filing of the Foundation’s original answer, Tri-Steel amended its petition on October 1, 2001, added Myers and Kuhn as defendants, and, inter alia, asserted that the Foundation breached the lease extension provision of the Amendment because TriSteel had properly exercised the lease extension option in conformance with its past dealings with the landlord. Tri-Steel also filed amended lis pendens. Myers and Kuhn answered on October 31, 2001. Following the filing of further lis pendens notices, the trial court lifted the notices and sanctioned Tri-Steel.

On November 2, 2001, the Foundation filed a motion for partial summary judgment on the issue of notice of lease extension. Shortly thereafter, Myers and Kuhn filed corresponding motions for partial summary judgment. On November 29, 2001, a hearing on the motions for partial summary judgment was held. Two days prior, the Foundation had filed its objections to Tri-Steel’s response and summary judgment evidence that had been filed by Tri-Steel on November 26. Kuhn and Myers lodged identical objections the day of the hearing. At the conclusion of the hearing, Tri-Steel, which had sought no discovery to that point, requested a continuance to take three depositions to address the form and hearsay objections that Ap-pellees had asserted to the evidence TriSteél had sought to introduce at the hearing. This motion was denied by the trial court, which also signed an order sustaining the majority of Appellees’ objections to Tri-Steel’s evidence. On December 12, 2001, the trial court granted the motions for partial summary judgment of the Foundation, Myers, and Kuhn. In October 2002, Tri-Steel declared bankruptcy, which stayed claims against Tri-Steel but did not affect Tri-Steel’s prosecution of its remaining claims against the Foundation, Myers, and Kuhn. See, e.g., In re United States Abatement Corp., 39 F.3d 563, 568 (5th Cir.1994). Finally, the trial court held a dismissal-for-want-of-prosecution hearing, at which Tri-Steel did not appear, resulting in the dismissal of Tri-Steel’s remaining claims and a March 26, 2003 final judgment in favor of the Foundation, Myers, and Kuhn. Following the denial of a motion for new trial, Tri-Steel perfected this appeal.

IV. Continuance

A. Background

In its first issue, Tri-Steel asserts error on the part of the trial court in failing to grant its motion for continuance of the hearing on the Foundation/Myers/Kuhn motions for partial summary judgment. At the conclusion of the hearing, counsel for Tri-Steel stated, “I have got a motion for continuance that I must file so that I could take depositions. And these are all form objections and we would ask that — ask to file that.” The court then stated, “Well, the motion for continuance is denied. You may file it, though.” Subsequently, on November 29, Tri-Steel filed Plaintiffs Motion for Continuance, which, in part, stated as the reason for the continuance that the plaintiff be allowed

to take the deposition of (i) Defendant Dorothy Myers, (ii) Jeff Smith, a representative of the Foundation and a recipient of a letter which is one of the Exhibits and (in) Tom Hollanger, a representative of the Foundation, in order to cure the hearsay objections raised by the Foundation. Hearsay objections are objections to form. [Citation omitted.] Plaintiff must be given an opportunity to cure these defects in form before the Court rules on the motions for summary judgment.

No other reason for requesting a continuance was stated. The record does not reflect that this motion was granted, so it therefore was implicitly denied.

B. Standard of Review

The denial of a motion for continuance is reviewed under an abuse of discretion standard. General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997) (orig.proceeding). The denial will be reversed if the trial court acted without regard to guiding principles or was arbitrary or unreasonable. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002). In order for a continuance to be granted, cause must be shown, supported by affidavit. Tex.R. Crv. P. 251. Further, if. the basis for the requested continuance is “want of testimony,” the affidavit must show (1) that the testimony is material, (2) that due diligence has been used to obtain the testimony, (3) that there is an explanation given for the failure to obtain the testimony, and (4) that the testimony cannot be procured from another source. Tex.R. Crv. P. 252.

C. Analysis

Tri-Steel’s Plaintiffs Motion for Continuance, when viewed in its entirety, does not meet requirements 2, 3, and 4 enumerated above. Further, the motion for continuance itself was not “in the required affidavit form” as asserted by Tri-Steel, nor was it supported by affidavit. Therefore, the motion for continuance did not meet the requirements of Rule 251 or 252.

Rule 166a(g) specifically allows a court to grant a continuance to permit depositions to be taken upon a showing that the requesting party “cannot for reasons stated present by affidavit facts essential to justify his opposition.” Tex.R. Crv. P. 166a(g). However, this procedure was not utilized by Tri-Steel.

Rule 166a(f) indicates that a party offering an affidavit that is defective in form, as pointed out by the opposing party, should have the “opportunity” to amend. Tex.R. Civ. P. 166a(f). Tri-Steel is correct that hearsay is a defect in form. A defect is substantive if the summary judgment proof is incompetent; it is formal if the summary judgment proof is competent, but inadmissible. Trusty v. Strayhorn, 87 S.W.3d 756, 764 (Tex.App.-Texarkana 2002, no pet.). Generally, a motion for continuance is the proper procedure to obtain this “opportunity.” Webster v. Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.-Houston [1st Dist.] 1992, no writ). If the “opportunity” is needed to take depositions, that is, for “want of testimony,” the rule is silent as to whether a continuance motion must meet the requirements of Rule 252. Tex.R. Crv. P. 252. No case law appears to have addressed this specific issue. We hold that if additional evidence is requested to be submitted through the initiation of discoveryofor “want of testimony,” (1) the summary judgment hearing must be continued to allow the new evidence to be presented to the court, and (2) a motion for continuance consistent with Rule 252 is required. Id. Otherwise, summary judgment affidavits would be replete with .hearsay, with little impetus to obtain proper discovery before the hearing to avoid hearsay rulings.

On the other hand, if an amended affidavit is requested to be substituted for the affidavit already admitted (for example, the original affidavit omits one of the form requirements- — the affiant is over the age of 18, the affidavit is based on personal knowledge, etc.) then the court may allow through a timely “request,” as opposed through a motion for continuance, a corrected affidavit to be substituted for the previous affidavit already considered. This would not require the initiation of discovery or continuance of the hearing. This is consistent with the language of this court’s' holding in Coleman v. Woolf, 129 S.W.3d 744 (Tex.App.-Fort Worth 2004, no pet.), that

[s]he did not request or file a motion for continuance; she did not tender an amended affidavit or seek leave to file an amended affidavit during the two weeks that the trial court had Dr. Wolfs motion for summary judgment under advisement. Coleman never made a timely request, objection, or motion seeking the opportunity to cure the defect....

Id. at 750 (emphasis supplied). Under the facts before us, additional discovery in the form of three depositions for Rule 252 “want of testimony” was sought, which required a formal motion for continuance meeting the requirements of Rule 252. We hold there was no abuse of discretion in the trial court’s denial of the motion for continuance and overrule Tri-Steel’s first issue.

V. Affidavit Objections

A. Exhibits C and I

In its second issue, Tri-Steel asserts that the trial court erred in sustaining certain objections to the affidavit of John Brown, filed in response to the Foundation/Myers/Kuhn motions. The only specific objections that Tri-Steel asserts as error by the trial court are in sustaining objections to Exhibit C (except paragraphs 5 and 6, which were admitted) and Exhibit I, both attachments to the Brown affidavit. Other general statements about objections are non-specific, vague, and not pointed out with sufficient clarity for this court to consider. See Tex.R.App. P. 38.1(h). As a result, they are waived. Exhibit C is an unsigned September 5, 1985 letter from John Brown to Dorothy Myers. The stricken paragraphs concern an invitation to Myers to come out and view work occurring at the premises. The paragraphs concerning the lease and extension of the lease term were admitted by the trial court (paragraphs 5 and 6). Exhibit I is a December 3, 1998 letter, unsigned, from John Brown to Jeff Smith at the Foundation, and is a discussion of their lease, an offer to buy out its remaining term, and a proposal for the Foundation to finance a move by Tri-Steel to another location. Tri-Steel argues that Exhibits I and the stricken part of Exhibit C, although hearsay, met the hearsay exception of Texas Rules of Evidence 803(15), entitled “Statements in Documents Affecting an Interest in Property.”

B. Interest in Property — Evidentiary Rule 803(15)

At issue in this appeal is whether it was necessary for Tri-Steel to timely send a written notice of lease extension by certified mail to the Foundation consistent with the literal terms of the 1995 Lease Amendment. Tri-Steel argues that the parties have a course of dealing between them such that literal compliance with notice obligations between the parties had been unenforced and therefore the right to enforce the provision in question had been waived by the Foundation. Further, TriSteel urges that Exhibits I and C show this informal relationship between the parties and thusly affect Tri-Steel’s interest in the leased property.

Another court has reviewed the history of Rule 803(15):

Texas Rule of Civil Evidence 803(15) [now Texas Rule of Evidence 803(15) ], effective in 1983, adopted the federal version of this evidence rule.... Federal Rule of Evidence 803(15) and Texas Rule of Civil Evidence 803(15) state:
Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
The advisory committee’s note accompanying the federal rule explains the rationale for this rule. The note states that “[dispositive documents often contain recitals of fact ... [and the] circumstances under which dispositive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness ...” One federal court stated that recitals contained in documents affecting interests in property are admissible as proof of the matters asserted and are strong evidence concerning such matters. Compton v. Davis Oil Co., 607 F.Supp. 1221, 1228 (D.C.Wyo.1985). This hearsay exception is based upon the reliability of such documents. Id. at 1229. In Compton v. WWV Enterprises, 679 S.W.2d 668, 671 (Tex.App.-Eastland 1984) no writ, the court of appeals construed Texas Rule 803(15) to relate to recitals or statements made in “deeds, leases, mortgages, and other such ‘documents affecting an interest in property' ”. (Emphasis supplied). Additionally, this Court has expressed that an exception to the hearsay rule should be liberally construed, but not mechanistically applied. Coulter v. State, 494 S.W.2d 876, 883 (Tex.Cr.App.1973) (interpreting business records exception).

Other cases have discussed Rule 803(15)⅛ application to a variety of documents. See, e.g., Guidry v. State, 9 S.W.3d 133, 146-47 (Tex.Crim.App.1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000) (sworn inventory of property filed, in a divorce proceeding held to be admissible under 803(15)); Harris v. State, 846 S.W.2d 960, 964-65 (Tex.App.Houston [1st Dist.] 1993, pet. ref d) (statements in an official General Motors’ Certificate of Origin regarding ownership of a vehicle were admissible under 803(15)). However, courts have not applied 803(15) to admit statements from documents that do not exhibit the same levels of reliability as found in formal or official documents or do not specifically meet the criteria of the rule. See McCraw v. Maris, 837 S.W.2d 646, 651 (Tex.App.-Dallas 1990), rev’d on other grounds, 828 S.W.2d 756 (Tex.1992) (refusing to admit an unfiled and unwit-nessed handwritten insurance beneficiary designation form under 803(15)); Compton v. WWV Enters., 679 S.W.2d 668, 671 (Tex. App.-Eastland 1984, no writ) (affidavit of heirship not admissible under 803(15)).

Predecessor statutes to the current version of Rule 803(15) allowed for an exception to the hearsay rule only for those documents that were recorded' instruments. At the time the federal courts adopted the "rule corresponding to Texas Rule 803(15), the rule’s scope was enlarged to include documents affecting an interest in property, even if unrecorded. However, the scope of the rule is not without limit, as stated in the advisory committee’s notes to the federal rule:

The circumstances under which disposi-tive documents are executed and the requirement that the recital be germane to the purpose of the document are believed to be adequate guarantees of trustworthiness, particularly in view of the nonapplicability of the rule if dealings with the property have been inconsistent with the document.

Fed.R.Evid. 803(15) advisory committee’s note.

C. Analysis

The issue presented is whether the stricken portions of Exhibit C, an unsigned letter of John Brown to Dorothy Myers dated September 5, 1985, and Exhibit I, a December 3, 1998 unsigned letter from John Brown to Jeff Smith at the Foundation, are documents containing statements subject to the hearsay exception in Rule 803(15). We hold that they are not. As noted in Texas Practice, Volume 2 by Goode, Wellborn, and Sharlot, “Documents covered by 803(15) include deeds, leases, and mortgages.” Goode, WellboRN, & ShaRLOT, 2 Texas Practice § 803.2 (3d ed.2003). While we acknowledge that the Court of Criminal Appeals has taken a more liberal approach to the application of this exception to the hearsay rule, the majority of cases addressing the rule require that the document have some sort of official or formal nature, which an unsigned letter does not possess. Further, the rule requires that dealings with the property not be inconsistent with the statement after it was made. The landlord has not treated Tri-Steel’s interpretation of its property interest consistent with that interpretation — the-Foundation did not acknowledge a non-conforming-lease extension notice, notified Tri-Steel that it intended to enforce all its rights as landlord under the lease, and notified Tri-Steel that the lease had expired on the date of expiration. In fact, the Foundation resorted to an eviction process against Tri-Steel. For the foregoing reasons, Exhibit I was properly excluded.

Also, with respect to Exhibit C, we observe that if any waiver occurred prior to August 14, 1998, it was by Myers and not by the Foundation and Kuhn, who held the property from that date following its transfer to them. The date of Exhibit C is 1985, and it can have no bearing on any waiver of Tri-Steel’s obligation affecting the Foundation or Kuhn, when viewed in conjunction with paragraph 26 of the 1992 lease, which remained in effect at the time the extension notice was to be given and stated that “(t]he waiver by [ljandlord of any brea'ch of any provision of this lease shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or different provision of this lease.”

Further, this court may look only to actions that occurred after the 1995 Amendment came into existence for actions purported to give rise to waiver of the lease extension requirements because “[i]n order to constitute a waiver, the right, benefit, or advantage in question must be in existence at the time.... A person cannot waive a right before he is in a position to assert it.” Smith v. McKnight, 240 S.W.2d 368, 371 (Tex.Civ.App.-Amarillo 1951, no writ). Put another way, “[wjaiver cannot exist until the thing waived is in existence.... To constitute a waiver, the right or privilege alleged to have been waived must have been in existence at the time of the alleged waiver.” Pennzoil v. Socony Mobil Oil Co., 421 S.W.2d 416, 423 (Tex.Civ. App.-El Paso 1967, writ dism’d). Additionally, the 1992 lease, in paragraph 32, contained an integration clause that stated, “[Tjhis agreement constitutes the sole and only agreement of the parties to this lease and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this lease.” “The purpose of an integration clause is to trigger the parol evidence rule which precludes the enforcement of inconsistent or prior agreements in a finalized contract.” Coffman v. Provost * Umphrey Law Firm, L.L.P., 161 F.Supp.2d 720, 728 (E.D.Tex.2001), aff'd, 33 Fed.Appx. 705, 2002 WL 433003 (5th Cir.2002), cert. denied, 537 U.S. 880, 123 S.Ct. 89, 154 L.Ed.2d 136 (2002). Therefore, only actions by the Foundation or Kuhn on or after August 14, 1998, or actions by Myers after December 12, 1995 and before August 14, 1998 and under the terms of the 1995 Amendment to the 1992 lease, could in any way constitute waiver of the ninety-day-notice-in-writing-by-certified-mail requirement to extend the lease past August 31, 2000. The 1985 date of Exhibit C is outside of the time period (1995-2000) wherein any actions by Myers or by Foundation/Myers/Kuhn could affect an interest in the property. Those portions of the 1985 letter that were stricken were mere pleasantries and an invitation to come inspect some work on the premises, and these portions in ho way affect a property interest of any party or constitute an informal agreement concerning a lease extension. For all these reasons, the trial court did not err in striking portions of Exhibit C.

VI. Fact Issues

In its third issue, Tri-Steel asserts that it raised fact questions that precluded granting the Foundation/Myers/Kuhn motion for summary judgment. No citations to the record are set forth. This issue is inadequately briefed and is waived. See Tex.R.App. P. 38.1(h). This issue is overruled.

VII. Jurisdiction

A. Introduction

Appellees reurge the Foundation’s jurisdictional argument previously decided by this court by order. The issue presented is whether the trial court may deprive this court of its appellate jurisdiction by striking a timely filed notice of appeal under Rule 12 of Texas Rules of Civil Procedure. See Tex.R. Civ. P. 12. Because the application of Rule 12 to deprive this court of jurisdiction over a timely perfected appeal is not supported by the underlying purpose of Rule 12 or authorized by case law, we hold that the trial court erred by striking Tri-Steel’s notice of appeal.

B. Factual Background

Attorney William L. Wolf filed suit on behalf of appellant Tri-Steel. The trial court granted several partial summary judgments and, on March 26, 2003,' dismissed Tri-Steel’s remaining claims against Appellees for want of prosecution. Wolf timely filed a motion for new trial on behalf of Tri-Steel. Wolfs motion for new trial pointed out that Tri-Steel had filed a petition in bankruptcy five months earlier, on October 1, 2002. The trial court signed a written order denying Tri-Steel’s motion for new trial, and on June 24, 2003, Wolf timely filed a notice of appeal on TriSteel’s behalf.

After Wolf filed the notice of appeal, Appellees filed in the trial court a “Motion to Show Authority” under Rule'12, alleging that Wolf did not have authority to file a notice of appeal on behalf of appellant Tri-Steel. See Tex.R. Civ. P. 12. Appel-lees argued that Wolf lacked authority because the bankruptcy court had not authorized Wolf to continue to prosecute TriSteel’s suit against them. The trial court conducted a hearing, granted Appellées’ motion, and ordered the notice of appeal filed by Wolf on behalf of Tri-Steel stricken on July 16, 2003.

Subsequently, on August 29, 2003, TriSteel filed with the bankruptcy court an application to employ Wolf as special litigation counsel; the bankruptcy court approved Tri-Steel’s application on September 12, 2003. Then, on September 25, 2003, th.e bankruptcy court confirmed TriSteel’s reorganization plan. Appellees now contend that this court lacks jurisdiction over Tri-Steel’s appeal, arguing that no valid notice of appeal exists because Wolf had no authority on June 24, 2003 to file Tri-Steel’s notice of appeal.

C. Rule 12 and This Court’s Appellate Jurisdiction

Appellate jurisdiction is vested in this court when a notice of appeal is timely filed. See Tex.R.App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction.”). In fact, an appellate court has jurisdiction over an appeal when the appellant timely files an instrument that is “a bona fide attempt to invoke the appellate court’s jurisdiction.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997). Here, Wolf timely filed Tri-Steel’s notice of appeal and invoked this court’s jurisdiction.

After Tri-Steel invoked our jurisdiction, Appellees filed a Rule 12 “Motion to Show Authority.” Rule 12 allows a party to a lawsuit who believes the suit is being prosecuted without authority to move the trial court to “cause the attorney to be cited to appear before the court and show his authority to act.” Tex.R. Civ. P. 12. Appel-lees’ motion alleged that, because Wolf failed to obtain authority from the bankruptcy court to file the notice of appeal, Tri-Steel’s notice of appeal should be stricken. But this court, not the trial court, is to determine whether a document filed by a party properly invokes our appellate jurisdiction. See Tex. Gov’t Code Ann. § 22.220(c) (Vernon 2004) (authorizing court of appeals to determine matters of fact necessary to proper exercise of jurisdiction); accord Tex.R.App. P. 29.5(b) (prohibiting trial court retaining jurisdiction in interlocutory appeal from making order interfering with appellate court jurisdiction). Rule 12 does not grant the trial court authority to dispose of TriSteel’s appeal by striking its timely filed notice of appeal.

Appellees do not dispute that Tri-Steel engaged Wolf to represent it in this lawsuit before it filed for Chapter 11 bankruptcy. Once Tri-Steel entered bankruptcy, however, it was required to secure the approval of the bankruptcy court to continue employing Wolf in its lawsuit against Appellees. See 11 U.S.C.A. § 327(e) (West 2004) (allowing the debtor in possession, with the bankruptcy court’s approval, to employ “for a specified special purpose, other than to represent the [debtor in possession] in conducting the case, an attorney that has represented the debtor, if in the best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the estate with respect to the matter on which súch attorney is to be employed”). The statutory note reveals that this section “will most likely be used when the debtor is involved in complex litigation, and changing attorneys in the middle of the case after the bankruptcy case has commenced would be detrimental to the progress of that other litigation.” 11 U.S.C.A. § 327 note. Accordingly, the purpose of this requirement is to protect the bankruptcy estate. See In re Kurtzman, 220 B.R. 538, 541 (S.D.N.Y.1998) (stating that section 327 ensures “both that the person’s employment is necessary to the estate and that the person employed is disinterested and able to serve the best interests of the estate”), appeal dismissed as moot, 194 F.3d 54 (2d. Cir.1999); see also 11 U.S.C.A. § 328(c) (providing that the bankruptcy court may deny compensation from the assets of the bankruptcy estate to a professional person who is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed).

In contrast, Rule 12 operates to protect not the debtor or the bankruptcy estate, but the opposing party in the debtor-plaintiffs lawsuit. The purpose of Rule 12 is “to protect defendants from groundless suits.” Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex.1964) (emphasis added); see also Boudreau v. Fed. Trust Bank, 115 S.W.3d 740, 742 (Tex.App.-Dallas 2003, pet. denied) (“The main purpose behind the rule is that a person is entitled to know which person or party in fact authorized the suit.”). Wolfs filing the notice- of appeal on Tri-Steel’s behalf does not run afoul of this purpose because there was no question that Tri-Steel hired Wolf to file a lawsuit against Appellees — in fact, Appellees even filed a counterclaim against Tri-Steel — and because Appellees do not contend that the filing of the notice of appeal was unauthorized by Tri-Steel. Appellees do not complain that the suit against them is groundless or that they do not know who authorized Wolf to file the notice of appeal. Furthermore, Tri-Steel has now obtained the bankruptcy court’s approval to employ Wolf as its special litigation counsel, and Appellees have not ever asked this court to rule that Wolf is without authority to prosecute Tri-Steel’s appeal.

Instead, Appellees’ contention is that Tri-Steel’s notice of appeal was a “nullity” because the trial court determined that Wolf did not possess authority to represent Tri-Steel during the critical time period when a notice of appeal was due. Because Tri-Steel as debtor in possession had the power to decide that it wanted to pursue an appeal, Appellees’ only legitimate complaint can be that the bankruptcy court did not preapprove Tri-Steel’s choice of attorney to file the notice of appeal. This complaint does not implicate the policies behind Rule 12.

Accordingly, the trial court was not authorized to dispose of Tri-Steel’s appeal by striking Tri-Steel’s timely filed notice of appeal. Therefore, the Foundation’s motion to dismiss this appeal was denied by order of this court. We reject Appellees’ argument that this court does not have jurisdiction for the reasons set forth herein.

VIII. Conclusion

Having confirmed the jurisdiction of this court and overruled Appellants’ issues, we affirm the ruling of the trial court.

      . Madden v. State, 799 S.W.2d 683, 698 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991).

      . See Act of April 30, 1957, 55th Leg., R.S., ch. 125, § 1, 1957 Tex. Gen. Laws 226, amended by Act approved June 16, 1965, 59th Leg., R.S., ch. 480, § 1, 1965 Tex. Gen. Laws 994, repealed by Order Re: New Rules of Evidence, 641-642 S.W.2d (Texas Cases) XXXV (1983) (civil actions); Order Adopting Texas Rules of Criminal Evidence, 701-702 S.W.2d (Texas Cases) XXIX (1986) (criminal cases).

      . See Madden, 799 S.W.2d at 683.

      . Apparently, Tri-Steel’s bankruptcy counsel and Wolf, its litigation counsel, were confused about who would represent Tri-Steel in this litigation after Tri-Steel filed for bankruptcy. But because Wolf had accepted employment as Tri-Steel's litigation counsel at the beginning of this lawsuit, and because Tri-Steel had not terminated Wolf’s representation, Wolf had a continuing duty to "act with competence, commitment and dedication to the interest of the client.” Tex. Disc. R. Prof. Conduct 1.01 cmt. 6. Had Wolf neglected to file Tri-Steel's notice of appeal and let the appellate deadline expire, he might have violated his professional duties owed to TriSteel. See id.


author:
BOB McCOY Justice.
      JOHN CAYCE, Chief Justice,

text:
    Lois BEDFORD, Individually and on Behalf of the Estate of Edwin Bedford, Deceased, Appellant, v. Rita Elaine MOORE, Tim Aldrich d/b/a T-C Trucking Company, and Scotty Hamrick d/b/a Western Contractors, Appellees.
    No. 2-03-377-CV.
    Court of Appeals of Texas, Fort Worth.
    May 26, 2005.

      Gray Law L.L.P. and Jay K. Gray, Bed-ford, for Appellant.
    Sedwick, Detert, Moran & Arnold, L.L.P., E. Paul Cauley Jr. and S. Vance Wittie, Dallas, for Rita Elaine Moore, Scotty Hamrick, and Western Contractors.
    Burt Barr & Associates, L.L.P., and John House, Dallas, for Tim Aldrich.
    PANEL A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

BOB McCOY Justice.

I. Introduction

This is an appeal from a judgment in a car-truck collision case following a jury verdict in favor of Rita Elaine Moore (“Moore”), Tim Aldrich d/b/a T-C Trucking Company (“Aldrich” and “T-C”), and Scotty Hamrick d/b/a Western Contractors (“Hamrick” and “Western”), wherein in two issues Lois Bedford, individually and on behalf of the estate of Edwin Bedford (“Bedford”) asserts that the trial court committed error in the charge of the court by failing to submit a negligence question to the jury concerning Western and Aid-rich and by excluding evidence that Moore, the driver of the Western vehicle, tested positive for methamphetamines in her post-accident drug screen. We will affirm.

II. Factual Background

This is the case of the absent entrustment issue. Shortly after noon on September 9, 1999, Edwin Bedford (“Mr. Bedford”) was involved in a motor vehicle accident with Moore. Mr. Bedford had pulled into a convenience store at the intersection of FM 1187 and Stephenson-Levy Road in Tarrant County, Texas. Upon emerging from the store parking lot, he crossed, or was crossing, the eastbound lane of FM 1187 to head westward when he was struck by an eastbound Volvo gravel truck driven by Moore for Western. Although she applied her brakes and attempted to avoid the collision, Moore was unable to avoid striking the vehicle. The collision caused Mr. Bedford’s vehicle to be pushed off the road and up an embankment before the Volvo gravel truck came to rest on top of Mr. Bedford’s vehicle. Mr. Bedford died as a result of the accident. Following the accident, Moore tested positive in a drug screen for meth-amphetamines.

The track Moore was driving was owned by Aldrich, an employee of Western. It was leased to Western, which was owned by Hamrick, and was operated under Western’s United States Department of Transportation (“DOT”) permit. Prior to this incident, Moore had been involved in two other motor vehicle accidents and had received ten or more speeding citations in her eight years as a commercial driver. Hamrick had not taken any steps to check Moore’s driving record before she was employed. The evening before the accident, Moore had been up all night waiting in an emergency room at a local hospital as a result of a head injury. When she arrived for work on the day of the accident, she appeared with a bandaged head and had received nine stitches in the emergency room but was allowed to drive the truck that was involved in the accident.

After the accident, this lawsuit ensued between Bedford and those allegedly responsible for the accident, resulting in a take-nothing judgment following a jury trial. Bedford appeals that judgment.

III. Charge of the Court

Bedford phrases her first issue as ‘Whether the trial court erred in not submitting a negligence determination to the jury of Western Contractors and Aid-rich?”

A. Standard of Review

The trial court’s submission of instructions and jury, questions is reviewed under an abuse of discretion standard. Toles v. Toles, 45 S.W.3d 252, 263 (Tex. App.-Dallas 2001, pet. denied). The trial court has broad discretion in submitting jury questions so long as the questions submitted - fairly place the disputed issue before the jury. This broad discretion is subject only to the limitation that the controlling issues of fact must be submitted to the jury. Rosell v. Cent W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex.App.-Dallas 2002, pet. denied).

In order to have a question submitted to the jury, there must be a proper legal theory forming a basis of recovery, and there must be sufficient evidence adduced to warrant its submission. If the reviewing/appellate court determines that error occurred, it must determine from the pleadings of the parties, the evidence presented at the trial, and the charge in its entirety whether such errors are reversible. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986). Charge error is harmful only if it probably caused an improper judgment. Tex.R.App. P. 44.1(a)(1); Rosell, 89 S.W.3d at 653.

B. The Negligence Question

In its charge, the trial court posed to the jury the following liability questions (instructions omitted):

Question 1:
Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer Yes or No for each of the following:
Rita Elaine Moore _
Edwin Bedford _
Question 2:
What percentage of the negligence that caused the occurrence do you find to be attributable to each of those listed below and found by you, in your answer to Question 1, to have been negligent?
Rita Elaine Moore _
Edwin Bedford _
Total ’ 100%

No question was presented to the jury concerning the negligence of Western or Aldrich compared to the negligence of Moore and Bedford. The jury answered question number one affirmatively for both Moore and Bedford. In response to question number two, the jury allotted forty percent of the negligence to Moore and sixty percent to Bedford, thereby precluding any recovery on Bedford’s part due to the fifty-percent bar rule. Tex. Civ. Phac. & Rem.Code Ann. § 33.001 (Vernon 1997). The court subsequently signed a take-nothing judgment on September 24, 2003. This appeal followed.

C. Negligent Hiring and Entrustment

In the pleadings on file, Bedford asserted various direct negligence causes of action against Aldrich and Western, generally related to negligent hiring, training, retaining, supervising, and entrusting Moore with the vehicle on the date in question, along with numerous alleged violations of the Federal Motor Carrier Safety Regulations. On appeal, Bedford points the court to evidence presented at the trial of negligent hiring and entrustment by Aldrich and Western. This evidence is not contested.

It is appellees’ position that it was unnecessary to submit a comparative negligence issue as to any party other than Moore and Bedford because the liability of any other defending party (the “other parties”) would be derivative of Moore’s liability. In other words, the “other parties” actions, standing alone, could not have caused this accident without the actions of Moore at the time of the accident. That is, they could be exposed to liability only if Moore’s negligence proximately caused the accident. Appellees cite Rosell, 89 S.W.3d at 643, Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431 (Tex.App.-Texarkana 1992, no writ), and Rodgers v. McFarland, 402 S.W.2d 208 (Tex.Civ.App.-El Paso 1966, writ ref d n.r.e.), to support their position that the “other parties’” submission was unnecessary. In Loom Craft, the court held as follows:

Negligent entrustment liability is derivative in nature. While entrusting is a separate act of negligence, and in that sense not imputed, it is still derivative in that one may be extremely negligent in entrusting and yet have no liability until the driver causes an injury. If the owner is negligent, his liability for the acts of the driver is established, and the degree of negligence of the owner would be of no consequence. When the driver’s wrong is established, then by negligent entrustment, liability for such wrong is passed on to the owner. We believe the better rule is to apportion fault only among those directly involved in the accident, and to hold the entrust- or liable for the percentage of fault apportioned to the driver.

823 S.W.2d at 432 (emphasis supplied) (citations omitted). In Rodgers (a case involving the old “guest” statute, Article 6701b of the Texas Civil Statutes), the court observed that

[t]he doctrine of negligent entrustment is that the owner of a vehicle who knowingly turns it over to an incompetent driver is liable for wrong committed by such driver. It differs from master-servant or agency relationships, for it is founded in tort — the negligence of the owner in turning the incompetent loose on the public. If, in fact, the owner is negligent, his liability for the acts of the driver is established, and the degree of negligence of the owner would be of no consequence.... Obviously, an owner who is negligent in entrusting his vehicle is not liable for such negligence until some wrong is committed by the one to whom it is entrusted.... The driver’s wrong, in the form of legal liability to the plaintiff, first must first be established, then by negligent entrustment liability for such wrong is passed on to the owner. The proximate cause of the accident or the occurrence is the negligence of the driver and not that of the owner.

402 S.W.2d at 210. The Rodgers opinion further cites McIntire v. Sellers, 311 S.W.2d 886 (Tex.Civ.App.-Austin 1958, writ ref d n.r.e.), for the proposition that “we do not believe it was necessary to submit an issue of proximate cause insofar as concerned the owner’s negligence in entrusting the automobile to an unlicensed driver.” Id. at 892-93 (emphasis supplied). We would observe that the Rodgers case was written before the adoption of the Proportionate Responsibility Act, as it appears today in the Texas Civil Practice and Remedies Code. Tex. Civ. Pkac. & Rem.Code Ann. § 33.001; see also Rosell, 89 S.W.3d at 656 (“[Bjecause [the employer] would be liable for its employees’ negligence [under negligent entrustment], there was no necessity for including [the employer] in the ordinary negligence liability question.”)

D. Respondeat Superior

Bedford also assigned vicarious liability to Aldrich and Western as truck owner and employer of Moore under the theory of respondeat superior. As to vicarious liability, such as the theory of re-spondeat superior for an employee/employer, there need not be any allegation of negligence on the employer’s part because an employer would be responsible for the employees’ actions even if the employer were free from fault. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). Therefore, there is no need to submit the employer’s or owner’s separate negligence under that theory. Rosell, 89 S.W.3d at 653.

E. Which Theory is Most Applicable?

It is appellees’ position that negligent hiring and entrustment are akin to the respondeat superior doctrine because both are derivative in nature. That is, they are dependent on a finding of negligence against Moore before any liability can be attributed to them. Further, appellees argue that the previously recited case law regarding negligent entrustment does not support submitting the employer or owner in the negligence liability/percentage questions, per Loom Craft, Rodgers, McIntire, and Rosell.

Bedford responds to these arguments by asserting that chapter 33 of the Texas Civil Practice and Remedies Code specifically provides that a jury shall determine the negligence of “each defendant.” Tex. Civ. PRAc. & Rem.Code Ann. § 33.003(2). Section 33.003, entitled “Determination of Percentage of Responsibility” provides that

[t]he trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility, stated in whole numbers, for the following persons:
(1) ...
(2) each defendant....

Id. Section 33.011, the definitions section, defines “defendant” as “any person from whom, at the time of the submission of the case to the trier of fact, a claimant seeks recovery of damages.” Tex. Civ. Peac. & Rem.Code Ann. § 33.011 (Vernon Supp. 2004-05). Bedford therefore asserts that because damages were Sought at the time of trial from the “other parties,” e.g., Aid-rich and Western, it was error not to include them in Question 1 and Question 2 of the charge of the court. We do not agree with the literal interpretation urged by Bedford. As the Dallas Court of Appeals has observed,

[W]e observe that, while the statute [section 38.003] on its face requires all defendants to be included in the apportionment question, it would not be proper for an employer to be included along with the driver if its only responsibility was that of respondeat superior.

Rosell, 89 S.W.3d at 656-57.

This is obvious because an employer may have committed no negligent acts to submit to the jury and still be held accountable under respondeat superior. Also, Professors Underwood and Morrison have postulated that the legislature, in enacting the original and present versions of section 33.003, did not consider derivative or vicarious liability cases. William D. Undemood & Michael D. Morrison, Apportioning Responsibility in Cases Involving Claims of Vicarious Derivative, or Statutory Liability for Harm Directly Caused by the Conduct of Another, 55 Baylor L.Rev. 617, 647-48 (2003). They note that nothing in the legislative history suggests that the act intended to overturn the long-established rule that the responsibility of persons who are derivatively liable should not be submitted:

Before construing the revised provisions in Chapter 33 to overturn established law — law that is supported by compelling policy justifications — it would not be unreasonable to insist on more direct indication that this is what the legislature intended to accomplish.

Id. at 648.

Bedford further responds by pointing to the recent case, F.F.P. Operating Partners, L.P. v. Duenez, — S.W.3d -, 2004 WL 1966008, 47 Tex. Sup.Ct. J. 1068, 2004 WL 1966008 (Tex. Sept. 3, 2004), as requiring the submission of the “other parties’” negligence to the jury. We first note that this opinion is a five-four decision with Justice O’Neill writing for the majority and Justice Owen writing for the dissent, with a motion for rehearing pending at this time. Before examining this case, we must first decide specifically, what issue is before this court? Succinctly put, it is, should negligent hiring and entrustment by an employer be submitted comparatively to the jury along with the employee’s negligence? There appears to be three types of cases under consideration. First is a purely vicarious liability situation, such as an employer/employee relationship involving respondeat superior wherein the employer is liable for the actions of the employee regardless of any allegation of fault on the part of the employer. Under this situation, the employer’s negligence is not submitted because the employer and employee are considered to be one and the same. Duenez, — S.W.3d at-, 2004 WL 1966008, at *4. Second, at the other end of the spectrum are concurrent tortfeasors whose independent, distinct acts both proximately cause damage to the plaintiff, such as two automobiles running a red light and colliding with a third vehicle. Obviously in such a situation, both drivers who ran the red light would be submitted to the jury in the liability and percentage of negligence questions. Third, betwixt these situations are the negligent hiring and entrustment situations in which there are distinct acts of negligence, like the concurrent tortfea-sor situation, and yet the distinct negligent act of hiring or entrusting, standing alone, is wholly dependent for causation upon the actions of the person who directly caused the accident, as in the respondeat superior situation. The question presented to us is whether this intermediate occurrence should be “lumped” with the respondeat superior situation in which the employer’s negligence is not submitted to the jury, or with the independent tortfeasor situation in which the employer’s negligence is submitted to the jury.

The Duenez case is a Dram Shop Act case. The Duenezes sued F.F.P. Operating Partners, L.P., for providing alcohol to Ruiz, whose truck collided with the Due-nezes’ car, causing significant injuries to the family. Our supreme court observed,

Causation under the Dram Shop Act is tied to the patron’s intoxication rather than the provider’s conduct. Because the Act imposes liability on providers for the actions of their customers regardless of whether the provider’s conduct actually caused the injuries suffered, the court of appeals in this case concluded that the provider’s liability is purely vicarious. Under the court’s analysis, the provider and the intoxicated patron are one and the same, like the employer and the employee in a case founded upon the doctrine of respondeat superior. It is true that, if a provider’s liability under the. Dram Shop Act were purely vicarious, as the court of appeals held, there would be nothing for the jury to apportion between F.F.P. and the Duenezes in this case. But the Act has a direct liability component that the court of appeals wholly ignored. Unlike true vicarious liability, in which one party’s actionable conduct is imputed to another, a dram shop’s liability stems in part from its own wrongful conduct. In order to impose liability under the Act, the fact-finder must conclude that the provider made alcohol available to an obviously intoxicated patron whose intoxication caused the plaintiff harm.... Accordingly, the dram shop liability is based on its own wrongful or dangerous conduct, even though the statutorily required causal link focuses on the patron’s intoxication. ...

Id. — S.W.3d at-, at *4. .

The court goes on to conclude,
[Wjhen the factfinder determines that a provider has violated the Dram Shop Act and its patron’s intoxication has caused a third party harm, responsibility must be apportioned between the dram shop and the intoxicated patron, as tuell as the injured third party if there is evidence of comparative negligence. The resulting judgment should aggregate the dram shop’s and driver’s liability so that the plaintiff fully recovers from the provider without assuming the risks of the driver’s insolvency. The dram shop may then recover from the driver based upon the percentages of responsibilities that the jury assessed between them.

Id. — S.W.3d at -, at *5 (emphasis supplied).

The reasoning of the majority of the supreme court parallels the negligent hir-ingfentrustment theory of recovery. Under both theories, neither are pure vicarious liability situations because liability stems from distinct wrongful conduct. In order to impose liability under both situations, the fact finder must conclude that a preceding independent action occurred that caused the plaintiff harm even though the required causal link focuses on the act of the driver. Further, like the Dram Shop Act, if the hiring or entrusting employer is negligent, his liability for the acts of the driver is established, but by submitting both the driver’s and the hiring or entrusting employer’s negligence to the jury, allowance is made for recovery by the hiring or entrusting employer from the driver, based on the percentages of responsibility assessed by the jury.

Therefore, we hold that the proper submission in a simple negligent entrustment or hiring claim, based upon sufficient evidence to warrant the submission, is to include the alleged negligent hiring or entrusting employer in an initial liability question and in the comparative negligence questions.

F. Sufficient Evidence

In order to have a question submitted to the jury, sufficient evidence must be raised by its proponent, that is, the evidence must raise a material fact issue. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). Bedford asserts that she “pled and proved numerous acts of direct negligence of both Aid-rich and Western Contractors for liability.” We agree that there is sufficient evidence adduced to warrant submission to the jury for decision on the issue of negligent hiring and entrustment as to Western and negligent entrustment as to Aldrich. This evidence includes the following: Western Contractors did not perform a driving history check on Moore nor did Western Contractors even have a policy or procedure in place for ever performing driving history checks on its drivers; Hamrick agreed that a reasonable trucking company exercising reasonable care would have verified a prospective commercial driver’s driving history; Hamrick admitted at trial that a reasonable trucking company seeing items listed on Moore’s driving record would not have employed Moore as an operator of a commercial vehicle; Moore was not required to fill out an employment application as required by Federal Motor Carrier Safety Regulations (“FMCSR”) section 391.21; Moore was not required to perform a pre-employment drug screen as required by FMCSR section 382.301; there was not a policy or procedure for requiring random drug testing as required by FMCSR section 382.305; Moore was not required to submit to a drug screen following her first accident while driving a company vehicle as required by FMCSR section 382.303; neither Aldrich nor Western required Moore to provide them with information from or about her prior employers as required by FMCSR section 391.21 and admitted to as the standard of care for a reasonable trucking company; and there was not a driver qualification file maintained on Moore as required by FMCSR section 391.51, which would have contained Moore’s prior driving history, Moore’s prior employment history, Moore’s employment application, and a list of Moore’s violations of motor vehicle laws and ordinances.

Further, when Moore showed up the morning of September 9, 1999, the day of the collision with Mr. Bedford, she had an obvious bandage on her head where she had just received nine stitches at an emergency room. Moore informed Aldrich that she had just come from the emergency room where she had been since midnight. Before Moore got behind the wheel of the gravel truck owned by Aldrich and began operating the truck under Western’s DOT permit, it was apparent that she had suffered a head injury and had been without sleep since at least midnight.

G. Application

For two reasons, however, we hold that it was harmless error in this case to fail to submit negligent hiring and en-trustment in the liability and percentage of liability questions. First, as pointed out in Rosell, the elements of negligent hiring are different from the elements of negligent entrustment. For negligent hiring, a plaintiff must prove that (1) the employer owed a legal duty to protect the employee’s actions and (2) the third party’s sustained damages were proximately caused by the employer’s breach of that duty. Rosell, 89 S.W.3d at 655. In order to prove a cause of action for negligent en-trustment, the proponent must show that there was (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; and (4) the driver’s negligence on the occasion in question; (5) proximately caused the accident. Id. This may require the submission of separate negligence issues on different negligence theories when submitted with the negligence of other parties. Id. at 655-56.

Further, the jury determined that Bedford was sixty percent responsible for the accident and Moore was forty percent responsible. The Texas apportionment scheme requires the trier of fact to determine the percentage of causation attributable to each claimant, defendant, and responsible third party. The jury question and accompanying instructions were consistent with this law. The court must presume that the jury followed the court’s instructions and apportioned the responsibility according to its view of how much the parties contributed to'causing the accident. See Tesfa v. Stewart, 135 S.W.3d 272, 278 (Tex.App.-Fort Worth 2004, no pet.). There were only two people involved in the accident. Therefore, the submission of the acts of “other parties” whose actions preceded the actions of Moore at the time of the accident could only'have contributed to her actions at the accident scene, that is, to her forty percent negligence. In other words, because there were only two parties involved in the incident, the jury has decided how those actions at the time of the accident should be apportioned as far as responsibility is concerned. What led up to those actions at the time of the accident does not change those actions at the accident scene but can only be subparts of those respective responsibilities. Aldrich and Hamrick did not cause Bedford to cross the highway or Moore to strike that truck. Therefore, while we believe that the proper submission in a simple negligent entrustment or negligent hiring case is to submit the negligent entrustor or negligent hiring employer in the general liability and comparative questions, under the facts of this case, we conclude that it was harmless error to omit them from those questions.

IV. Excluded Evidence

In her second issue, Bedford alleges that the trial court “erred in excluding all evidence regarding the positive results of Rita Moore’s post-MVA drug screen.” Following the accident, a DOT-required drug screen showed that Moore had methamphetamines in her system. The trial court excluded all evidence concerning the drug screen and its results. Bedford attempted to offer the testimony of Dr. Daniel Drew, a physician retained by DOT who had analyzed the drug screen conducted on Moore. Upon objection, Dr. Drew was not allowed to testify about the correctness of the examination and the effects methamphetamine can have on an individual. Dr. Drew also testified outside the presence of the jury that the testing showed that sometime between September 5 and September 9 of 1999, Moore had either eaten or injected or in some other way received methamphetamine into her system which was “at least a minute amount. There was enough to make certain that this could not have been from second hand smoke ... or something like that.” However, Dr. Drew also testified that a positive finding for methamphet-amines did not prove impairment and that he could not tell the jury that Moore was impaired at the time of the accident. Bed-ford also attempted to offer the lay testimony of witness Ronald G. Curry that Moore appeared to be under the influence of drugs at the time of the accident and that she appeared to be “hyper.” On objection, these observations were not allowed to be presented to the jury.

A. Applicable Law and Standard of Review

A trial court’s evidentiary ruling is reviewed under an abuse of discretion standard. Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). A court abuses its discretion only when it rules without regard to any guiding rules or principles. Id. Exclusion of evidence is harmful only if the evidence is controlling on a material issue and is not cumulative. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex.1994); Franco v. Franco, 81 S.W.3d 319, 321 (Tex.App.-El Paso 2002, no pet.). A successful challenge to an evidentiary ruling generally requires showing that the judgment turned on the particular evidence in dispute. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000). We examine the entire record in making this determination of harm. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.2001).

Generally, drug usage, without further evidence of negligence, is inadmissible. See Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727, 729 (Tex.App.Beaumont 1991, writ denied); Dorman v. Langlinais, 592 S.W.2d 650, 652 (Tex.Civ. App.-Beaumont 1979, no writ). Bedford cites Nichols v. Howard Trucking Co., 839 S.W.2d 155 (Tex.App.-Beaumont 1992, no writ), for the proposition that once evidence of improper conduct or negligence is presented, a trial court’s exclusion of testimony concerning a party’s use of intoxicants is reversible error. In the Nichols case, the deceased driver was found to have an alcohol concentration in his blood of .0516, and a urine analysis test revealed that he tested positive for the presence of cannabinoids, that is, marijuana. There was expert testimony concerning the adverse effects that alcohol had on the individual’s ability to operate an automobile and the effect that marijuana had on an individual. The court noted that “evidence of the use of intoxicants is inadmissible as immaterial unless there is further evidence of negligence and improper conduct of the part of the user.” Id. at 158. That is, evidence of drug usage must provide some explanation for the negligence and improper conduct. However, this was not present under our facts because Dr. Drew could not tie the presence of methamphet-amines in Moore’s body to impairment at the time of the accident, and therefore could not connect the presence of the drug to causation.

Further, because Dr. Drew could not identify any particular level of the drug in Moore’s system at time of the accident or state that the amount of the drug in her system was at a level at which any impairment could be adduced, there was no evidence that the presence of the drug was a causative factor in the accident. We hold that the trial court did not abuse its discretion by excluding the testimony of Dr. Drew or Mr. Curry.

V. Conclusion

Having overruled Bedford’s issues, we affirm the judgment of the trial court.

CAYCE, C.J., filed a concurring opinion.

JOHN CAYCE, Chief Justice,

concurring.

I join the majority’s opinion, but I concur only in the result reached by the majority on the issue of whether the trial court erred in failing to submit the negligence of Aldrich and Hamrick to the jury.

The jury found that Bedford was sixty percent responsible for the accident. This unchallenged finding is binding on appellants and bars their recovery as a matter of law. Tex. Crv. PRac. & Rbm.Code Ann. § 33.001 (Vernon 1997). Therefore, assuming without deciding that the trial court erred in failing to submit the negligence of Aldrich and Hamrick, I believe the error, if any, was harmless. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980) (holding error in sübmission of jury question is harmless when other jury findings support judgment); Tex. & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, 283 (1959) (holding error in submitting definition of contributory negligence harmless where judgment rested on different jury findings); San Antonio Press, Inc. v. Custom Bilt Machinery, 852 S.W.2d 64, 65 (Tex.App.-San Antonio 1993, no writ) (stating that when unchallenged no-damage finding supports judgment, error in liability finding is harmless).

For these reasons, I concur only in the result reached by the majority in overruling issue one. I join the remainder of the opinion.

      .The liability theories against Aldrich and Hamrick were submitted in separate subsequent questions. These questions were not reached because of the jury’s answer to Question No. 2 and the conditioning instruction preceding them.

      . 49 C.F.R. §§ 350.101-399.211 (2004).

      . Act of May 26, 1931, 42nd Leg., R.S., ch. 225, 1931 Tex. Gen. Laws 379, repealed hy Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3322.

      . Tex Civ. Prac. & Rem.Code Ann. § 33.003. This comparative causation system is distinct from one that compares the relative fault of the parties. See generally, Montford, J. & Barber, W., 1987 Texas Tort Reform: The Quest for a Fairer and More Predictable Texas Civil Justice System 25 Hou. L.Rev. 245, 272-75 (1988). For the distinction between comparative fault and comparative causation system, see Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427-28 (Tex.1984).

      . We may not speculate, as appellant urges us to do, whether the jury might have assigned less than fifty percent responsibility to Bed-ford if it had been allowed to consider Aldrich and Hamrick’s negligence. Instead, we must presume the jury followed the trial court’s instructions and apportioned sixty percent of the responsibility for the accident to Bedford based on the evidence. See Tesfa v. Stewart, 135 S.W.3d 272, 278 (Tex.App.-Fort Worth 2004, pet. denied).


author: TERRIE LIVINGSTON, Justice.

text:
    Herbert Ronald BOWDEN, Appellant, v. The STATE of Texas, State.
    No. 2-03-402-CR.
    Court of Appeals of Texas, Fort Worth.
    May 26, 2005.

      Thomas L. Allensworth, Wichita Falls, for Appellant.
    Barry L. Macha, Crim. Dist. Atty., John W. Brasher and' Lee Ann Haines, Asst. Crim. Dist. Attys., Wichita Falls, for State.
    Panel F: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Herbert Ronald Bowden was convicted by a jury of reckless injury to a child. The trial court sentenced him to ten years’ confinement in accordance with the jury’s assessment. In two issues on appeal, appellant contends that the evidence is legally and factually insufficient to support his conviction. Because we hold that the evidence is both legally and factually sufficient to support the jury’s verdict, we affirm.

Factual Background

This case involves a house fire in which two sisters, seven and eight years old, died. Appellant is the boyfriend of the girls’ mother, Sharan Williams; the girls were spending the night in a vacant house where appellant was temporarily living until he could get an apartment. On the night of October 4, 2002, Sharan left the girls with appellant while she went out.

The house where appellant and the girls were staying had no utilities or running water, so the girls were put to bed in a back bedroom with a candle in a pie plate on the floor between their bed and the wall. In the early morning hours of October 5, a fire started in the bach bedroom while appellant claims he was asleep on the couch. The girls did not come out by themselves, and appellant tried to get them.out of the room but could not. The State charged both appellant and Sharan with two counts of reckless injury to a child.

Legal and Factual Sufficiency Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. PROC. Ajnn. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the'weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). The standard of review is the same for direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App.2001); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim.App.1999).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cam v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 963 S.W.2d 234, 240 (Tex.Crim.App.1997); Ortiz v. State, 993 S.W.2d 892, 895 (Tex.App.-Fort Worth 1999, no pet.). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim. App.2001); Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the charging instrument. See Curry, 30 S.W.3d at 404.

Elements of Offense

Injury to a child is a result-oriented offense; thus, it is not enough for the State to prove that the defendant engaged in the conduct with the requisite criminal intent. Lee v. State, 21 S.W.3d 532, 540 (Tex.App.-Tyler 2000, pet. filed). Instead, the State must also prove that the defendant caused the result with the requisite criminal intent. Id. A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Penal Code Ann. § 6.04(a) (Vernon 2003).

A person acts recklessly when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Id. Reckless conduct involves conscious risk creation; that is, the actor was aware of the risk surrounding his conduct or the result of his conduct, but consciously disregarded that risk. See Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975). The culpable mental state is generally proven through circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.] 1978).

Indictment

In two counts, the indictment charged appellant with recklessly causing serious bodily injury to both girls “by leaving [them] in a room without adult supervision with a candle burning.” As part of our legal sufficiency review, we must review the evidence as authorized by the most recent valid indictment in the record. See Curry, 30 S.W.3d at 404. In this case, the original indictment did not allege how appellant recklessly caused serious bodily injury to the children. See Tex.Code CRiM. PROc. Ann. art. 21.15 (Vernon 1989) (providing that whenever defendant is charged with recklessness in commission of offense, indictment must allege with reasonable certainty acts relied upon to constitute recklessness). The State filed a motion to amend the indictment, which in paragraph 2 quoted the charging language from the indictment with the addition of “by leaving [them] in a room without adult supervision with a candle burning” to the reckless injury to a child count. The trial court’s order granting the motion did not set forth the amended language in full but stated that the indictment was amended “as requested by the State in paragraph number two (2) of its Original Motion to Amend the Indictment.” Cf. Aguilera v. State, 75 S.W.3d 60, 64 (Tex.App.-San Antonio 2002, pet. ref d) (concluding that trial court order, which reproduced language of indictment with amending language included, effectively amended indictment); Valenti v. State, 49 S.W.3d 594, 598 (Tex.App.-Fort Worth 2001, no pet.) (holding that physical interlineation on trial court order granting State’s motion to amend that reproduced original language of indictment was effective as amendment). The indictment was never physically interlineated or reproduced. See Riney v. State, 28 S.W.3d 561, 566 (Tex.Crim.App.2000) (noting “that Ward v. State continues to stand for the proposition that ‘[n] either the motion [to amend] itself nor the trial judge’s granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10’ ” and quoting Ward v. State, 829 S.W.2d 787, 793 (Tex.Crim.App.1992)). But appellant did not file a motion to quash the indictment, nor did he object when the indictment was read with the amending language included. In addition, appellant does not complain on appeal that the indictment was never amended or about any other defect in the indictment. See Robinson v. State, No. 2-02-462-CR, 2003 WL 22253856, at *1 n.2 (Tex.App.-Fort Worth Oct.2, 2003, pet. ref d) (mem.op.) (not designated for publication). In any event, we do not need to determine whether the indictment in this case was validly amended or not because our analysis is the same under either version of the indictment.

Review of Evidence

Appellant contends that the fire was merely accidental and that his act of falling asleep on the couch while the candle was burning in the room where the girls were sleeping was not reckless because it did not constitute a gross deviation from the standard of care. The State responds that there is evidence in the record that appellant was aware of the danger that fire might result from burning candles in the house and that the room where the girls slept was unsafe because it had trash on the floor and inadequate escape options. The State further suggests that there is evidence in the record from which the jury could reasonably infer that appellant was not in the house when the fire started and was unavailable to assist the girls until it was too late.

Zula Mae Scott, the girls’ grandmother, testified that the girls had lived with her since they were babies. Sharan sometimes stayed at Zula Mae’s house with them but not all the time; she was mostly “in and out.” Sharan had a key to Zula Mae’s house.

When Zula Mae found out that appellant and Sharan had been taking the girls to spend the night at a vacant house, she told them it was too dangerous to be taking them there and fighting candles. She also said she talked to them about the house catching on fire. According to Zula Mae, Sharan said she always made sure to put the candles out before she went to sleep, and Zula Mae believed that if Sharan had been in the house that night, she would have done so.

On the evening of October 4, Sharan was supposed to stay with the girls at Zula Mae’s house until Zula Mae came home from work. Neither the girls nor Sharan were home when Zula Mae came home at 5:30. She later learned that there had been a fire and the girls were dead.

Lee Samuel Beatty lives on Dallas Street, a couple of houses down from the abandoned house, and was renovating the home next door. In a statement to police after the fire, Beatty said that the girls should never have been in the house, but at trial, Beatty equivocated, saying that “the house was fíne to me as far as them being in that house. But, you know, some people may say maybe they shouldn’t have been there because the house was — you know, didn’t have everything like water and stuff.” Beatty testified that on the night of the fire he heard “some noise like screaming, or yelling, or something,” then he heard glass breaking. He went outside because he thought someone was trying to break into a house and eventually saw appellant, who was upset.

Beatty’s girlfriend, Brenda Strawn, testified next. On the night of the fire, she heard screaming and glass breaking. By the time she got outside, Beatty had already been outside for about ten minutes. Strawn did not see Beatty at first, but she did see appellant, who was “like in shock or something” 'and not talking. He just shook his head when she asked him what was happening. She then saw Beatty trying to put out the fire. In a prior statement to police, Strawn had stated that she asked appellant if the girls were in the house, but he kept saying he did not know.

Officer Jonathan Lindsay testified that he was the first emergency responder to the fire. When he arrived, the whole structure was in flames. He saw appellant in front of the house; appellant had a towel wrapped around one of his hands and said to Officer Lindsay, “[M]y babies are inside, my babies are inside.” Appellant was frantic, nervous, and scared. Officer Lindsay did not see any burns on appellant, nor did he remember appellant coughing.

Joanna Burgan, a paramedic, testified that she went to check on someone she was told was appellant. Appellant was in a police car. She saw blood on his hand but did not treat him because he told her he was okay. Burgan did not notice any burns on appellant, nor did she hear him coughing. She did not listen to his lungs, however. According to Burgan, whether a person is suffering from smoke inhalation is usually determined by difficulty in breathing, mild coughing, and leaning forward while trying to take breaths. In her opinion, there was no need to treat appellant for smoke inhalation; however, she acknowledged she was not evaluating appellant’s respiratory system at the time. In response to cross-examination, Burgan admitted that some smoke inhalation damage can show up later and that some first degree burns do not appear until after a person is away from the heat source. Appellant’s counsel also elicited testimony that appellant has dark skin, it was dark outside, and the only light available was the overhead light in the police car.

Sergeant Ginger Harrill interviewed appellant twice after the fire. The State admitted videotapes of the interviews, and a transcription of the interviews is included in the record.

During appellant’s first interview, which took place about 4:00 a.m. the morning of the fire, appellant told Sergeant Harrill that he, Sharan, and the girls walked to the abandoned house from Zula Mae’s. The girls stayed at the house that night because Sharan wanted to go out. He said that he put the girls to bed in the back bedroom about 7:30 or 8:00 p.m., lit a candle when it got dark, and then went to the couch in the front room and fell asleep about 10:00. When appellant got up to check on the girls, the back room was on fire; flames were coming out the door between the front rooms and the back room, and he could not get in the back room. He went out the front door of the house, then around to the back where he knocked out the back bedroom window. A dresser was in front of the window, and he knocked it over. He also tried to get through a back exterior door to the bedroom, which had been nailed shut. That door was also obstructed by a chair. Appellant knocked the door down but could not get in.

Appellant told Sergeant Harrill that before the fire that night he had gone a few houses down to Preston McFadden’s house for a cigarette, but he returned at 9:30 and checked on the girls, who were okay. He was gone only about a minute, and the candle was lit while he was gone. Sergeant Harrill told appellant that there were “neighbors that are saying you came walking down the alley was on fire [sic]” and that she needed appellant to tell the truth about whether he was gone when the house caught fire. Appellant answered “No.”

In his second interview, which took place two days after the fire, appellant told Sergeant Harrill that McFadden woke him up “hollerin’ ” sometime after 11:00 p.m. Appellant. went out to talk to McFadden and was gone for about thirty seconds. After appellant went back inside, he checked on the girls and then fell asleep on the couch. He was not away from the house when the fire started. Appellant said he would not have left the girls alone because “[k]ids can’t ... take care of’ themselves. Appellant told Sergeant Harrill that he was awakened by the girls screaming. According to appellant, the girls had stopped screaming by the time he knocked out the window.

Appellant told Sergeant Harrill that the room the girls were in had two interior doors to it; one was closed and the other one was open. The closed door opened to the inside of the girls’ room and had no doorknob; thus, the girls could not have easily opened it from their room, and appellant would have had to push on it from outside the bedroom to open it. Appellant said that the bedroom the girls were in had “just a little trash on the floor.”

At first, appellant said that he was the one who lit the .candle, but then said he remembered Sharan lit the candle while he and Sharan were in the bedroom talking before Sharan went out that night. He said the candle was away from the bed and closer to the wall.

Sergeant Harrill then testified that when she first interviewed appellant, he did not have on any shoes, which was consistent with his claim that he had been asleep when the fire started. Based on appellant’s drawing that he made for Sergeant Harrill during the interview, the couch where he claimed to be sleeping was only about sixteen feet away from the candle. -

Officer Ronald Bukowski testified after Sergeant Harrill. He confirmed that when he responded .to the fire, appellant was upset and had a laceration on his hand. He didn’t remember if appellant had been coughing or whether he had any burns.

Battalion Chief Lynn Holzer of the Wichita Falls Fire Department testified that the fire was accidental. By the time he arrived at the house, the fire was so strong that a person trying to go into the house would not “have lasted two or three seconds.” In response to cross-examination, he said that if a window had been broken in the early stages of the fire, it would have added more oxygen to the fire and could possibly have created a variation in air pressure that would have caused an open door to the bedroom to shut. He also confirmed that if a person is capable of screaming, the fire has probably not grown to the point where breathing the smoke and fire has damaged that person’s lungs. He stated further that if someone had attempted to open a door to the bedroom while it was on fire, that person would probably suffer some smoke inhalation damage and maybe have burned their hands. Battalion Chief Holzer also testified that the majority of home fires the department responds to are in homes with utilities and that a major concern for them is to make sure the utilities are turned off.

The final witness at guilt-innocence was Jim Graham, the Assistant Fire Marshal for the Wichita Falls Fire Department. Graham described how he investigated the fire and came to his conclusions about the cause and origin of the fire. He concluded that the fire was started in the back bedroom by the accidental introduction of an open flame; based on appellant’s comments to him about the fire, he believed the fire was most likely started when clothing or a sheet came into contact with the candle, perhaps when one of the girls rolled over on the bed.

Graham testified that básed on the burn patterns on the wood, the front door of the house had been open during most of the fire, but the door between the front rooms and the back room where the girls were— the door,-that appellant claimed had been open — had been closed during most of the fire. He said he could not tell if someone had opened and'shut the door briefly. He did state that if someone had tried to open the door when it was in flames, it probably would have collapsed. When he found the door, it had fallen off its hinges and part of it was broken, but the majority of it was still intact. When questioned about the lack of burns on appellant and the fact that appellant did not appear to have any smoke inhalation symptoms, Graham opined that that was not consistent with someone trying to open the door. Graham confirmed that the second door, the one without the doorknob, was closed during the fire.

Graham opined that one of two scenarios was possible: either the fire was “fully involved” as appellant described it and appellant did not open the door to the bedroom, or appellant opened the door before conditions were as bad as appellant said and left the girls inside. Graham said he did not think anyone believed the second scenario. Graham also said that if appellant broke the back window when the fire was fully engaged, a backdraft explosion would have occurred, burning appellant. Graham could see no reason why the girls should not have been able to get out of the room unless the door between the back bedroom and the front rooms had been obstructed or locked. But Graham also stated that there was no way to tell if the door had been locked or obstructed. Graham thought the evidence was inconsistent with appellant opening the door to the bedroom. But Graham admitted there were no facts from the physical evidence showing that appellant was not in the house when the fire started and that appellant could have been inside. Graham did not think it possible that appellant’s breaking out the window could have caused the bedroom door to close. Graham also testified that it’s unlikely the girls would have been able to break and escape through the window by themselves and that they would “more than likely” have needed some assistance or direction to get out of the room. In addition, one of the girls “had enough carbon monoxide in her to have affected her ability to be able to escape or make any kind of decisions.”

On cross-examination, Graham admitted that the majority of open-flame fires occur in homes with utilities and that a similar, albeit nonfatal, fire had occurred in Wichita Falls in a house that had electricity.

Analysis

The evidence shows that appellant could have taken the girls back to Zula Mae’s house, a short walk away. He could have stayed in the room with the girls. Or he could have extinguished the candle if he did not want to stay in the room with them. Instead, knowing that using candles in the house could potentially start a fire, appellant chose to allow the girls to sleep alone in a room with a candle in a pie tin on the floor close to the bed in a house that he knew had no running water or other means of extinguishing a fire and in a room with a blocked window and only one working door, which the jury was free to believe was . shut during the duration of the fire. Even if appellant was asleep on the couch approximately sixteen feet away from the bedroom as he claims, the evidence shows that he was not able to assist the girls in escaping the fire and they died as a result. According to the assistant fire marshal’s testimony, the girls more than likely would have needed assistance to escape the room. Yet, appellant, knowing the risk that a fire could occur, left them unsupervised in the room with a burning candle. Thus, we conclude that this evidence is both legally and factually sufficient to show that appellant’s conduct in leaving the girls alone in the room with a burning candle constituted a “gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from [appellant’s] standpoint.” Tex Penal Code Ann. § 6.03(c).

In addition, there is evidence from which the jury could have believed appellant was not in the house when the fire started. In her statement to police, Strawn stated that when she first encountered appellant outside the house (after hearing breaking glass), she asked him if the girls were in the house, and he said he did not know. In addition, there was testimony that had appellant attempted to enter the bedroom when he said he did, he most likely would have suffered burns or smoke inhalation, but no one at the scene detected any burns or symptoms of smoke inhalation on appellant. Appellant claimed that he was on the couch until he first noticed the fire, at which point he already saw flames coming out of the door to the bedroom. Yet assistant fire marshal Graham testified that appellant could not have been on the couch for any length of time as the fire burned. Finally, appellant’s statements were inconsistent about the times he left the house. In his first statement, he said he left only once. But in his second statement, he said he left twice, but the second time was only for about thirty seconds. In those thirty seconds, he claims to have had a conversation with Preston McFadden. Although we do not believe that these inconsistencies alone would support sufficient evidence to warrant a conclusion that appellant was not in the house when the fire started, the jury was entitled to consider these inconsistencies as proof of guilt in conjunction with Strawn’s testimony and the lack of burns on, or smoke inhalation symptoms of, appellant. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004) (stating that inconsistent statements are probative of wrongful conduct and circumstances of guilt and acknowledging that “[e]ach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction”); see also Tippitt v. State, 41 S.W.3d 316, 326 (Tex.App.-Fort Worth 2001, no pet.) (acknowledging that inconsistencies in the appellant’s statements to police were “factors that could have been considered by the jury in determining his guilt”). All of this evidence taken together supports a conclusion that appellant was not in the house when the fire started.

This evidence is relevant as further evidence (in addition to the evidence detailed above) of the degree of appellant’s disregard of the appreciable risk of leaving the girls alone in the bedroom with the candle burning. We do not suggest that the record contains evidence showing that “but for” appellant’s being outside of the house, he would have been able to save the girls from the burning room, thus preventing their deaths. To the contrary, the evidence shows that once the fire started, it spread rapidly and reached flashpoint within a five to seven minute period. There is no evidence that appellant would have been able to save the girls even if he had been on the couch when the fire started. Thus, our conclusion is that there is sufficient evidence to show that appellant’s act of leaving the girls unsupervised in the room with the candle burning caused the girls’ deaths, not that appellant’s being out of the house when the fire started caused the girls’ deaths. But that evidence is circumstantial evidence relevant to appellant’s mental state (i.e., disregard of the risk) and as such is appropriate to discuss in our sufficiency review.

We further conclude that the evidence of appellant’s awareness of the risk is factually sufficient. Zula Mae testified that she warned both appellant and Sharan that lighting candles in the house could cause a fire. This warning was in the context of her telling appellant and Sharan not to take the girls to the house where appellant was staying. The jury was free to believe Zula Mae’s testimony.

This is a tragic case. While we may not necessarily have reached the same conclusion as the fact finder, we may not second-guess the jury. Accordingly, we hold, based on our review of the record and the appropriate standards of review, and giving appropriate deference to the jury as fact finder, that the evidence is both legally and factually sufficient to support appellant’s conviction for reckless injury to a child.

Conclusion

Having determined that the evidence is both legally and factually sufficient to support the jury’s verdict, we overrule appellant’s issues and affirm the trial court’s judgment.

      . Because we must review the entire record to determine appellant’s issues, a more thorough recitation of the evidence introduced at trial follows the standard' of review below.

      . Sharan’s appeal is also before this court in cause number 02-03-472-CR.

      . We note that the amendment, if valid, would restrict the State’s theory of the case to proving that appellant recklessly caused serious bodily injury to the children by leaving them in the room unsupervised with a lit candle. We analyze the sufficiency of the evidence under this theory; however, we note that no other manner and means is raised by the evidence.

      . In his legal sufficiency issue, appellant does not challenge the sufficiency of the evidence to support the other elements of the offense: that appellant had responsibility for the children when they died, that the children suffered serious bodily injury, and that there is evidence of his awareness of the risk to the children. But in his factual sufficiency issue, he does appear to argue that the evidence of his awareness of the risk is weak.

      .A copy of a drawing of the house that appellant made during the interview is attached to this opinion. The drawing is oriented so that the southernmost parts of the house are closer to the top of the page and the northernmost parts are closer to the bottom. The back bedroom where the girls were sleeping is shown in the bottom right corner of the drawing.

      . The room shown in the upper left corner of the drawing, situated diagonally from the room the girls were sleeping in.

      . Shown in the drawing on the left side of the back bedroom.

      . Evidence of the proximity of the candle to the bed and the lack of an adequate escape route is relevant to the issue of causation-there is evidence that these things contributed to the fire that caused the girls’ deaths. But there is no evidence that these were the sole cause of the girls' deaths or that appellant’s act of leaving the girls unsupervised with the candle in the room would have been insufficient to cause the girls’ deaths. See Tex Penal Code Ann. § 6.04(a).

      . The thrust of appellant's complaint on appeal is that his act of falling asleep was not a gross deviation from the standard of care. But the State did not contend that appellant's falling asleep caused the deaths, rather that appellant recklessly caused the girls' deaths by leaving them without adult supervision in the room with the candle burning.

      . Assistant fire marshal Graham testified that he did not think it would have made any difference which door or window appellant tried first in determining whether he could have rescued the girls from the fire.

      . Appellant does not appear to challenge the conclusion that his actions, whether leaving the room or falling asleep on the couch, were not a cause of the girls’ deaths. See id. § 6.04(a).