author: SAM GRIFFITH, Justice.

text:
    The STATE of Texas, Appellant, v. Adam Roberts LEWIS, Appellee.
    Nos. 12-02-00193-CR, 12-02-00194-CR.
    Court of Appeals of Texas, Tyler.
    March 30, 2004.
    Discretionary Review Refused Nov. 10, 2004.

      Donna R. Bennett, Athens, for State.
    April A. Sikes, Navarro County Criminal Dist. Atty., Corsicana, Tonda L. Curry, Tyler, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J„ and DeVASTO, J.
   OPINION ON REHEARING

SAM GRIFFITH, Justice.

On January 30, 2004, we issued an opinion in this cause reversing the trial court’s granting of Adam Roberts Lewis’s motion for new trial. Appellee Lewis subsequently filed a motion for rehearing. We deny Lewis’s motion for rehearing. We withdraw our previous opinion and corresponding judgment and substitute the following opinion and judgment on rehearing.

Adam Roberts Lewis, appellee, was found guilty by a jury of aggravated assault on a public servant and deadly conduct. The jury assessed punishment at twenty years of confinement and five years of confinement, respectively. The trial court granted Lewis’s amended motion for new trial in each case. The State appeals from that order, contending in seven issues that the trial court was without authority to rule on the amended motion and abused its discretion in granting it. Because we agree the trial court was without authority to rule on the amended motion and there is no merit to the grounds asserted in the original motion for new trial, we reverse the trial court’s order and remand these causes to the trial court for further proceedings.

Background

Lewis was charged by separate indictments with two counts of aggravated assault on a public servant alleged to have occurred when two constables attempted to serve a mental health warrant. The two cases were tried together. After hearing evidence, the jury found Lewis guilty of one count of aggravated assault on a public servant and the lesser included offense, of deadly conduct. The jury assessed punishment at twenty years of imprisonment for the offense of aggravated assault on a public servant and five years of imprisonment for the deadly conduct offense. The trial court pronounced sentence in accordance with the jury’s verdict on April 17, 2002.

Trial counsel timely filed a motion for new trial on May 16, 2002. He alleged jury misconduct, insufficiency of the evidence, and unconstitutionality of the applicable statute. It was supported by counsel’s affidavit and a copy of a jury questionnaire filled out by one of the jurors who heard Lewis’s cases. That motion was set for hearing on June 27. On June 24, 2002, Lewis’s newly retained counsel filed a motion to substitute counsel. On June 26, 2002, she filed a motion for leave of court to file an amended motion for new trial and her amended motion for new trial. The amended motion urged the three issues raised by trial counsel and three new issues. The amended motion included discussions regarding the fact that the mental health warrant was .never executed, a competency evaluation had not been performed on Lewis, and trial counsel did not pursue an insanity defense. The amended motion was supported by a copy of the warrant and copies of trial counsel’s affidavit and the juror’s questionnaire. The previously set hearing was held on the following day. The trial court granted leave to file the amended motion and immediately heard argument on the amended motion. The trial court granted the amended motion for new trial. The State exercised its right to appeal the trial court’s ruling. See Tex.Code Cedí. PROC. Ann. art. 44.01(a)(3) (Vernon Supp.2004).

Trial Court’s Authority

In its first issue, the State contends the trial court was without authority to rule on the untimely filed amended motion for new trial. Citing Rule of Appellate Procedure 21.4, the State argues that the amended motion was untimely because it was not filed within thirty days of the date of the judgment. The State interprets the rule as not allowing the trial court to consider a late amendment or a late motion. Because the trial court lacked authority to grant the amended motion for new trial, the argument continues, the order is null and void. Further, Lewis has not shown good cause entitling him to file the late amended motion, has not shown his constitutional right to counsel is in conflict with a procedural rule, and has not shown how he has been harmed.

Lewis responds that the trial court correctly exercised its inherent authority to allow him to file the amended motion for new trial and no exception was required. He argues that, since Rule 21.4(b) provides for amending a motion for new trial without leave of court within thirty days after the date sentence is imposed, the trial court is impliedly authorized to grant leave of court to file an amendment after the thirty-day time period. Relying on Morales v. State, 587 S.W.2d 418 (Tex.Crim.App.1979), Lewis argues that his constitutional right to due process was violated because the issue of the validity of the mental health warrant and, by extension, the question of whether the officers had the right to be in his home, was never addressed at trial. He further argues that forcing him to proceed solely on the original motion for new trial, without being allowed to raise his claim of ineffective trial counsel, “effectively would violate [his] right to effective representation.” Because these constitutional issues outweigh the statutory limitation of thirty days to file an amendment, the argument continues, the statute should be interpreted as allowing for amendment outside the thirty days with leave of court. Finally, citing Adaire v. State, 130 Tex.Crim. 1, 91 S.W.2d 367 (1936) (op. on reh’g), Lewis asserts that permitting the filing of an amended motion for new trial after the time for filing the original motion is discretionary with the trial judge. He contends the State has failed to meet its burden of proving the trial court abused its discretion in allowing Lewis’s amended motion to be filed.

Discussion

When the State appeals from an order granting a new trial, the proper standard of appellate review is abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). The right to move for a new trial in a criminal case is purely statutory. Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App.1987). The remedy must be pursued in the manner prescribed by statute. Id. The time for filing motions for new trial and amended motions for new trial in criminal cases is presently governed by Texas Rule of Appellate Procedure 21.4. See Tex.R.App. P. 21.4. However, in order to understand how the present Rule 21.4 is applied, we must review the history of this rule.

The subject matter of this rule was previously found in Article 40.05 of the Code of Criminal Procedure. The version in effect at the time Adaire was decided read as follows:

A new trial must be applied for within two (2) days after conviction; but for good cause shown, the Court may allow the motion to be made at any time before the adjournment of the term at which the conviction was had.

Act of 1935, 44th Leg., R.S., ch. 308, § 1, 1935 Tex. Gen. Laws 714 (amended 1951, 1965, 1981, repealed 1985) (current version at Tex.R.App. P. 21.4). Thus, at the time, the statute supported the holding in Adaire that whether an amended motion for new trial would be permitted to be filed after the time allowed by law for filing a motion for new trial is within the sound discretion of the trial court. Adaire, 91 S.W.2d at 368.

The 1965 version of Article 40.05 was similar:

A motion for new trial shall be filed within ten days after conviction ... and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed.... but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.

Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 477 (amended 1981, repealed 1985) (current version at Tex.R.App. P. 21.4). The statute was amended again in 1981. The 1981 version expanded the time period for filing a motion, but deleted the phrase “for good cause shown” and did not provide for amendment after the initial thirty-day time period for filing.

(a) A motion for new tidal, if filed, shall be filed prior to or within 30 days after the date the sentence is imposed or suspended in open court.
(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within 30 days after the date the sentence is imposed or suspended in open court.

Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 107, 1981 Tex. Gen. Laws 803, 804 (repealed 1985) (current version at Tex. R.App. P. 21.4). Thus, by 1981, the statutory method for filing motions for new trial did not provide for any amendment of the motion after the thirty days, even with leave of court. The court of criminal appeals has recognized this as an intentional change of the former statute requiring the filing and all amending of motions for new trial within the thirty days and not thereafter. Dugard v. State, 688 S.W.2d 524, 530 (Tex.Crim.App.1985), overruled on other grounds, Williams v. State, 780 S.W.2d 802, 803 (Tex.Crim.App.1989). The effect of this change is that the trial judge no longer has the discretion to extend the time limits for filing motions or amended motions for new trial. Drew, 743 S.W.2d at 223.

Article 40.05 was repealed, effective September 1, 1986. Act of May 26, 1985, 69th Leg., R.S., ch. 685, § 4, 1985 Tex. Gen. Laws 2472, 2473. Also effective September 1, 1986, the court of criminal appeals and supreme court adopted Texas Rule of Appellate Procedure 31, regarding motions for new trial. That rule provided in pertinent part:

Before a motion or an amended motion for new trial is overruled it may be amended and filed without leave of court within 30 days after date sentence is imposed or suspended in open court.

Tex.R.App. P. 31(a)(2). Pursuant to revisions made to the rules in 1997, the subject matter of former Rule 31(a)(2) is now found in Rule 21.4(b) which provides:

Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Tex.R.App. P. 21.4(b).

These various versions of the rule providing the timetable for filing amended motions for new trial have been construed uniformly. Former Rule 31 has been interpreted consistently with the 1981 version of Article 40.05. Beathard v. State, 767 S.W.2d 423, 433 (Tex.Crim.App.1989). Rule 21.4(b) has been held to present no substantive changes from former Rule 31(a)(2). Mercier v. State, 96 S.W.3d 560, 562 (Tex.App.-Fort Worth 2002, no pet.). Some cases involving application of Rule 21.4(b) apply the law set out in Dugard, which addressed the 1981 version of former Article 40.05. See Andrews v. State, 106 S.W.3d 402, 406 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d); Rangel v. State, 972 S.W.2d 827, 838 (Tex.App.-Corpus Christi 1998, pet. ref'd). Thus, Rule 21.4 does not change prior law and also requires the filing of amended motions for new trial within the thirty days and not thereafter. Dugard, 688 S.W.2d at 530.

Further, Lewis’s argument that the wording of Rule 21.4 allows an interpretation that the trial judge may grant leave to amend after the thirty-day period has been considered and rejected by the Fort Worth Court of Appeals. See Mercier, 96 S.W.3d at 562. We agree with the Fort Worth court. The plain meaning of the rules, especially in light of their history, is that the trial court has no discretion to allow an amendment after the thirty-day period. Accordingly, no amended motion for new trial may be filed after the thirty-day period, even with leave of court. Drew, 743 S.W.2d at 222-23.

We turn now to Lewis’s argument that his allegations of constitutional violations override the procedural requirements of the rule. Lewis relies on Morales in support of his argument. Citing Whitmore v. State, 570 S.W.2d 889 (Tex.Crim.App.1977) (op. on reh’g), Morales held that a statute governing the time for filing motions for new trial cannot be applied so as to deprive an accused of a right secured by the constitution. Morales, 587 S.W.2d at 421. The court of criminal appeals discussed this holding and the Whit-more opinion at length in Drew. There, the court pointed out that Whitmore was decided at a time when the applicable rule allowed out-of-time filings “for good cause shown.” Drew, 743 S.W.2d at 224. Further, the mere mention of constitutional rights is not sufficient since constitutional rights may be waived like other rights. Id. at 225. But most important, the claimed deprivation of constitutional rights cannot confer jurisdiction upon a court where none exists. Id.

The statutory provisions for filing motions for new trial and amended motions for new trial are mandatory and exclusive and must be complied with in all respects. Id. at 223. The court in exercising its particular authority is a court of limited jurisdiction. Id. When there is no jurisdiction, the power of the court to act is as absent as if it did not exist. Id. Accordingly, a late amended motion for new trial fails to vest the trial court with jurisdiction over the issues included in the amended motion. Beathard, 767 S.W.2d at 433; Drew, 743 S.W.2d at 223; Andrews, 106 S.W.3d at 406; Licon v. State, 99 S.W.3d 918, 926 (Tex.App.El Paso 2003, no pet.); Mercier, 96 S.W.3d at 562; Port v. State, 798 S.W.2d 839, 847 (Tex.App.-Austin 1990, pet. refd). Because the trial court had no jurisdiction to hear Lewis’s late amended motion for new trial, the trial court abused its discretion in granting the amended motion. We sustain the State’s first issue.

In its second, third, and fourth issues, the State asserts the trial court abused its discretion in granting the amended motion for new trial on the three grounds initially raised in the amended motion. Those grounds include allegations of improper execution of the mental health warrant, the failure to obtain a mental evaluation of Lewis, and failure to present Lewis’s mental health condition to the jury. As explained above, the amended motion containing these issues was not timely filed and therefore not properly before the trial court. Therefore, granting the motion on any of these three grounds would be an abuse of discretion. We sustain issues two, three, and four.

Jury Misconduct

In its fifth issue, the State contends the trial court erred in granting the motion for new trial on the ground of jury misconduct. The State complains that the motion was not supported by an affidavit by a juror and that the rules of evidence prohibit testimony by a juror regarding matters occurring during deliberations.

In his original motion for new trial, Lewis alleged jury misconduct which he based on a juror’s answers to a questionnaire sent to jurors by his first trial attorney. The motion was supported by the attorney’s affidavit explaining the origin of the questionnaire and opining that it indicates “the jury discussed and considered parole and good time credit in reaching their punishment verdict.” Also attached was a copy of the questionnaire.

Rule of evidence 606(b) prohibits jurors from testifying as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to the verdict. Tex.R. Evm 606(b). The rule allows a juror to testify regarding only whether any outside influence was improperly brought to bear upon any juror or to rebut a claim that the juror was not qualified to serve. Id. Evidence of any discussion of parole and good time credit by the jury falls within the rule’s prohibition. The attorney’s affidavit and the jury questionnaire do not provide evidence of outside influence. Thus, the trial court could not appropriately grant Lewis’s motion for new trial on the ground of jury misconduct as alleged in the motion. See Hines v. State, 3 S.W.3d 618 (Tex.App.-Texarkana 1999, pet. ref'd) (Holding that jurors may testify only to whether any outside influence was brought to bear upon a juror and a juror’s statements made during deliberations about the effect of parole are not an outside influence). We sustain the State’s fifth issue.

Sufficiency of the Evidence

In its sixth issue, the State asserts the trial court erred in determining the evidence was legally and factually insufficient to support the jury’s verdict. It argues that the record supports the trier of fact’s findings, beyond a reasonable doubt, that Lewis committed the offenses of aggravated assault on a public servant and deadly conduct.

In ruling upon a motion for new trial based upon legal insufficiency of the evidence, the trial court must use the same standard of review as that used by appellate courts. State v. Savage, 905 S.W.2d 272, 274 (Tex.App.-San Antonio 1995), aff'd, 933 S.W.2d 497 (Tex.Crim.App.1996). The trial court must decide, after reviewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. When a motion for new trial challenges the sufficiency of the evidence to support a jury’s finding, the trial court cannot weigh the evidence and judge the credibility of the witnesses. State v. Charlton, 847 S.W.2d 443, 446 (Tex.App.-Houston [1st Dist.] 1993, no pet.). The grant of a new trial on the basis of legally insufficient evidence is equivalent to an acquittal. Rodriguez v. State, 852 S.W.2d 516, 519 (Tex.Crim.App.1993).

Under a factual sufficiency standard, the court conducts a neutral review of all the evidence, both for and against the jury’s verdict, and determines whether the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Manns v. State, 122 S.W.3d 171, 174 (Tex.Crim.App.2003). The reviewing court compares the evidence that tends to prove a material disputed fact with evidence that tends to disprove it. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). While a reviewing court has some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App.2002), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003). The reviewing court should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Id. A determination that a jury’s verdict is factually insufficient is only appropriate when the evidence is so weak as to be clearly wrong or manifestly unjust or if the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim. App.2003); Johnson, 23 S.W.3d at 11.

A person commits the offense of aggravated assault on a public servant if he uses a deadly weapon to intentionally or knowingly threaten another with imminent bodily injury when the actor knows the person threatened is a public servant who is lawfully discharging an official duty. Tex. Pen.Code Ann. § 22.02(a)(2), (b)(2) (Vernon Supp.2004). The actor is presumed to know the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant. Id. at § 22.02(c). A gun is a deadly weapon per se. Tex. Pen.Code Ann. § 1.07(a)(17)(A) (Vernon Supp.2004); Thomas v. State, 821 S.W.2d 616, 618 (Tex.Crim.App.1991) (en banc). A person commits the offense of deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals. Tex. Pen.Code Ann. § 22.05(b)(1) (Vernon 2003).

On the morning of November 6, 2001, Henderson County Constable Daner Stan-berry went to Lewis’s house at the request of Lewis’s family. Stanberry attempted to get Lewis out of the house so he could go with his family. Lewis, who was very angry, noted that Stanberry did not have a warrant. He would not leave the residence or talk to Stanberry. Part of the reason the family called Stanberry is because he knows Lewis. Stanberry testified that he has known Lewis and his family for a long time. Lewis already knew who Stanberry was because they have had a dozen separate conversations and Stanberry had transported Lewis to the Tyler Behavioral Health Center in the past.

In the early afternoon on that same day, Henderson County Constable John Floyd was called to obtain a mental health warrant for Lewis and transport him to the Andrews Center for evaluation. When he reached Lewis’s residence, Constable Stanberry and two Brownsboro police officers were already there. All four peace officers were wearing uniforms and driving marked patrol cars. Floyd and Stanberry knocked on the front door and identified themselves. Floyd said he was with the constable’s office and Stanberry said, “[T]his is Daner.” He told Lewis they had a warrant to take him to the Andrews Center. They received no answer. After about five minutes, they pushed open the front door and went inside. Floyd again identified himself as being with the constable’s office. Stanberry called out to Lewis identifying himself by his first name and told him they had a warrant. They did not see Lewis, but he yelled from a back bedroom and told them to get out of his house. Lewis commented that they did not have time to get a warrant. Floyd described Lewis as agitated and angry. Floyd said Lewis seemed to know Stanberry.

The officers went down the hall to the bedroom. Stanberry took one step inside the bedroom and he saw Lewis’s arm come around the doorway from the bathroom holding a gun. Stanberry backed out of the bedroom. The officers heard one gun shot and saw smoke from inside the bedroom. They left the house at that time and called for backup. Later that day, Lewis was assisted out of the house by members of Tyler’s SWAT team.

The record shows that Stanberry and Floyd were public servants lawfully discharging an official duty. That is, they were peace officers attempting to serve a mental health warrant. Lewis argues that questions regarding whether the officers had the lawful right to enter his home under the mental health warrant, whether it was a valid warrant, and why it was never executed have been left unanswered and, therefore, the State did not prove the officers were lawfully discharging an official duty. The warrant was introduced at trial with no objection. It shows on its face that the officers had the right to be on Lewis’s property. Lewis made no attempt at trial to prove it to be invalid. The record shows that the officers were unable to take Lewis to a mental health facility as directed by the warrant because Lewis was arrested for aggravated assault. The record also shows, however, that the issue of Lewis’s competency and mental health was addressed extensively prior to trial. The fact that the mental health warrant was never executed and the reason it was not executed are inapposite to the issue of the sufficiency of the evidence to prove aggravated assault and deadly conduct. The State proved that Stanberry and Floyd were public servants lawfully discharging an official duty.

The officers arrived in marked patrol units, were wearing uniforms, and verbally identified themselves. This would seem sufficient to prove that Lewis knew they were public servants lawfully discharging an official duty. However, Lewis argues that, since no one testified that he had visual contact with the officers, the evidence was insufficient to show he knew he was shooting at police officers. He argues that the statutory presumption that a defendant knows someone is a public servant when the public servant wears a uniform or badge presupposes that the defendant sees the public servant. On this record, we need not apply the presumption. Both officers testified that they identified themselves when they knocked on the door and entered the residence. Floyd specifically said he was with the constable’s office. Stanberry identified himself by name. They told Lewis why they were there. Stanberry testified that he had known Lewis and his family for years, had a dozen conversations with Lewis, and had transported him to a mental health facility in the past. Stanberry had been to Lewis’s residence earlier the same day, with members of Lewis’s family. At that time, Lewis told him to leave since he had no warrant. When Stanberry and Floyd were at Lewis’s residence in the afternoon, Lewis told them they had not had time to get a warrant. There is sufficient evidence in the record to show that Lewis knew he was talking to law enforcement officers.

Lewis argues that there is insufficient evidence to show he had formed the intent to commit aggravated assault or that he had the mental capacity to form such intent. He argues that the fact that the officers were attempting to serve a mental health warrant should alert the parties that Lewis may not have the capacity to form intent. The jury was free to draw reasonable inferences from the fact that a judge had issued a mental health warrant. Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). However, while the question of Lewis’s capacity was raised in pretrial proceedings, and his attorney filed notice of his intention to present the insanity defense, evidence on this issue was not presented to the jury. Lewis’s intent to commit the offense can be inferred from his actions. See Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995). He discharged a gun, which is a deadly weapon per se, while pointing it in the direction of two officers there to serve a warrant.

We conclude that a rational trier of fact could have found the essential elements of the offenses of aggravated assault on a public servant and deadly conduct. Savage, 905 S.W.2d at 274. We note also that, since the trial' court did not acquit Lewis, it apparently did not determine the evidence to be legally insufficient. See Rodriguez, 852 S.W.2d at 519. Further, the proof of guilt is neither so obviously weak as to undermine confidence in the jury’s determination nor outweighed by contrary proof. Manns, 122 S.W.3d at 174. The evidence is legally and factually sufficient to support the jury’s verdict. Granting a new trial on the basis of legal or factual sufficiency would be an abuse of discretion. We sustain the State’s sixth issue.

Constitutionality of Section 22.02(c)

In its seventh issue, the State asserts the trial court abused its discretion in determining that Section 22.02(c) of the Penal Code is unconstitutional as alleged in Lewis’s original motion for new trial. The State argues that the presumption in that section is permissible and rebuttable. Further, to prove its case, the State did not rely strictly on the presumption. It relied on the evidence that the officers verbally identified themselves, Lewis knew Stanberry personally, and Lewis stated that Stanberry did not have time to get a warrant.

In his original motion for new trial, without naming a specific constitutional provision, Lewis asserted that Section 22.02(c) is unconstitutional because it shifts the burden of proof to the defendant by presuming an element of the offense against the defendant. He further argued that section is unconstitutional as applied because there was no evidence he had visual contact with the complaining witnesses.

Section 22.02(c) of the Penal Code provides that the person committing aggravated assault is presumed to have known the person assaulted was a public servant if the person assaulted was wearing a distinctive uniform or badge indicating the person’s employment as a public servant. Tex. Penal Code Ann. § 22.02(c). With respect to a presumption of fact to be submitted to the jury and the specific element to which it applies, Section 2.05 of the Penal Code requires the court to instruct the jury (1) that the facts giving rise to the presumption must be proven beyond a reasonable doubt; (2) that if so proven, the jury may find the presumed element exists, but is not bound to do so; (3) that the State must prove beyond a reasonable doubt each other element of the offense; and (4) that if the jury has a reasonable doubt as to existence of the facts giving rise to the presumption, it fails and is not to be considered for any purpose. Tex Pen.Code Ann. § 2.05 (Vernon 2003).

Presumptions are evidentiary devices. Willis v. State, 790 S.W.2d 307, 309 (Tex.Crim.App.1990) (en banc). A mandatory presumption compels the jury to find an essential element of the offense upon proof of a basic fact or requires the accused to present evidence to rebut the presumption. Id. Mandatory presumptions are unconstitutional because they lessen the State’s required burden of proof. Id. By contrast, a permissive presumption allows, but does not require, the trier of fact to infer the elemental fact or ultimate fact from the predicate evidentia-ry fact. It places no burden on the accused to refute or disprove the elemental fact once the predicate facts have been established. Id. at 310. When a trial court gives a Section 2.05 instruction in a charge containing a presumption, that presumption will be construed as permissive. Id.

Here, the court’s charge set out the elements of aggravated assault on a public servant and stated the presumption. However, the instructions required by Section 2.05 were not included in the charge. Lewis never complained of this omission.

Without the Section 2.05 instruction, the charge contains an unconstitutional, mandatory presumption. Id. If the defendant does not object to error in the jury charge, he must show the error was fundamental in order to complain about it on appeal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (en banc) (op. on reh’g). Fundamental error in the jury charge is error that is so egregious and causes such harm as to deprive the accused of a fair and impartial trial. Id. To determine if Lewis suffered egregious harm, we consider (1) the entire charge, (2) the state of the evidence, including contested issues, (3) arguments of counsel, and (4) any other relevant information. Id.

First, we consider the entire jury charge. The charge stated the elements of the offense and defined pertinent terms. It instructed the jury that Lewis is presumed innocent and it must find Lewis guilty beyond a reasonable doubt or acquit him. It specifically stated that the burden of proof rests upon the State throughout the trial and never shifts to the defendant. It explained that the State must prove each and every element of the offense charged beyond a reasonable doubt. These general instructions do not remedy the error in the charge. See Francis v. Franklin, 471 U.S. 307, 319-20, 105 S.Ct. 1965, 1974, 85 L.Ed.2d 344 (1985).

Next, we consider the state of the evidence. This factor focuses on whether the jury charge error relates to a contested issue. See Hutch v. State, 922 S.W.2d 166, 173 (Tex.Crim.App.1996) (en banc). The charge error goes to the element of Lewis’s knowledge of the complainants’ status as public servants, a contested issue. The record shows that there were three marked patrol cars in front of Lewis’s residence. Four uniformed law enforcement officers were on his property, two of whom entered his home.

In her closing argument, the prosecutor addressed the evidence before the jury on the issue of whether Lewis knew Stanber-ry and Floyd were police officers. She reminded the jury that Stanberry, who had been at Lewis’s house earlier that day, knew Lewis. She suggested it was a reasonable deduction from the evidence that Lewis looked out the window to see who had driven up to his house when the marked patrol units arrived. She said the officers were in uniform and identified themselves as constables there to serve a warrant. Further, she reminded the jury that Lewis responded by telling the officers they did not have time to get a warrant. The prosecutor never told the jury they were entitled to presume that Lewis knew Stanberry and Floyd were public servants because they were wearing uniforms.

Lewis argues that the presumption cannot be applied, and therefore the State failed to prove this element, because there is no proof that he saw the officers, their uniforms, or badges. First, there was no proof that Lewis did not see the officers. The officers testified that they did not see Lewis. However, that does not affirmatively prove Lewis did not see them. More importantly, the statute does not require the defendant to see the officers in order to know they are public servants. It merely requires knowledge. The State is left with the option of proving Lewis knew that Stanberry and Floyd were public servants based on other evidence.

Considering the evidence, arguments of counsel, and all relevant information, the overwhelming weight of the evidence shows the facts giving rise to the presumption. See Webber v. State, 29 S.W.3d 226, 237 (Tex.App.-Houston [14th Disk] 2000, pet. ref'd). Based on this record, we conclude the jury could not reasonably harbor uncertainty on the issue of knowledge of the complainants’ status as public servants. See Bellamy v. State, 742 S.W.2d 677, 686 (Tex.Crim.App.1987). Accordingly, egregious harm has not occurred. If the trial court granted Lewis’s motion for new trial on the basis of the unconstitutionality of Penal Code Section 22.02(c), it abused its discretion. We sustain the State’s seventh issue.

Conclusion

Lewis’s amended motion for new trial was not timely. The rules do not allow untimely amended motions for new trial. Therefore, the trial court was without jurisdiction to entertain the amended motion and its ruling is null and void. The three grounds alleged for the first time in the late amended motion were not properly before the trial court and cannot support a new trial. There is no merit to any of the three grounds asserted in the original motion for new trial. We reverse the trial court’s order granting the amended motion for new trial and remand these causes to the trial court for further proceedings.

      . In his brief, Lewis refers to this issue as a complaint of ineffective assistance of counsel at trial. In her argument before the trial court, Lewis’s new counsel alleged ineffective assistance by trial counsel. However, there is no reference to ineffective assistance of counsel in the amended motion for new trial.


source: Caselaw Access Project

author: DIANE DeVASTO, Justice.

license: Public Domain

text:
    Frederick CRITCHFIELD and Claudia Critchfield, Individually and as Personal Representatives of the Estate of Eric Critchfield, Appellants, v. Dennis E. SMITH, Appellee.
    No. 12-03-00017-CV.
    Court of Appeals of Texas, Tyler.
    April 30, 2004.
    Rehearing Overruled June 22, 2004.

      Georganna L. Simpson, Jeff Forrest Smith, for appellant.
    Gregory R. Ave, Touchstone, Bernays, Johnson, Beall, Smith & Stollenwerek, L.L.P., Dallas, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

In three issues, Frederick Critchfield and Claudia Critchfield, individually and as personal representatives of the estate of Eric Critchfield (“the Critchfields”), appeal the trial court’s grant of partial summary judgment and bifurcation of liability and damage issues in their lawsuit against Dennis E. Smith (“Smith”). We affirm in part, and reverse and remand in part.

Background

In July 1993, the Critchfields contacted Smith for advice about insuring their home and automobiles. Specifically, Mr. Critch-field wanted the “maximum” amount of underinsured/uninsured motorist (“UM/UIM”) coverage available to him. After discussing their options, the Critch-fields purchased an automobile insurance policy from Nationwide Insurance Company (“Nationwide”) that provided $500,000.00 in bodily injury liability coverage and $100,000.00 per person in UM/ UIM bodily injury coverage. According to Mr. Critchfield, Smith advised him that the $100,000.00 in UM/UIM coverage was an appropriate amount because Mr. Critchfield was covered by a major medical insurance policy. At no time did Smith inform him that he could have acquired $500,000.00 in UM/UIM coverage. From 1993 to 1999, Mr. Critchfield continued to renew his automobile insurance policy with $500,000.00 in liability coverage and $100,000.00 in UM/UIM coverage.

On December 20, 1999, the Critchfield’s son, Eric, was injured during an automobile accident while riding as a passenger in another vehicle. On December 28, Eric died as a result of those injuries. In August 2000, Nationwide paid the Critchfields the limits of their UM/UIM coverage. Sometime after Nationwide paid the Critchfields, the Critchfields’ attorney told them that Smith could have and should have sold them a policy with a $500,000.00 UM/UIM limit that was equal to the limit of personal liability coverage on their automobile insurance policy.

On December 19, the Critchfields sued Smith, contending that Smith was negligent in failing to 1) adequately and properly advise them on the appropriate amount of UM/UIM coverage, 2) provide them with UM/UIM coverage in an amount equal to the $500,000.00 limit of personal liability coverage, and 3) increase their UM/UIM coverage at each policy renewal date from 1992 or 1993 to December of 1999. The Critchfields also alleged breach of contract, breach of fiduciary duty, and negligent misrepresentation causes of action, including the recovery of reasonable attorney’s fees.

On February 4, 2002, Smith filed a motion for partial summary judgment on the Critchfield’s negligence, breach of contract, and breach of fiduciary duty claims. The Critchfields responded to the motion on March 7. That same day, the Critch-fields amended their original petition, adding causes of action for negligence per se and violations of the Deceptive Trade Practices Act (DTPA).

On April 10, the trial court granted Smith’s motion as it pertained to the Critchfield’s negligence, negligence per se, and breach of contract claims; however, it denied summary judgment on the breach of fiduciary duty claim. On April 22, the Critchfields filed a motion to reconsider the trial court’s April 10 ruling, and on April 29, Smith filed a motion to exclude the Critchfields’ experts on damages and negligent misrepresentation. On May 16, the trial court granted the Critchfields’ motion to reconsider, but only on their negligent misrepresentation claim. The trial court also granted Smith’s motion to exclude the Critchfields’ damage experts but denied the motion with regard to the negligent misrepresentation experts. On June 26, the trial court, sua sponte, bifurcated the issues of Smith’s liability and any resulting damages and also ordered that the same jury hear both trials.

The trial began on July 22, and the jury returned a verdict on July 26. The jury answered “no” when asked whether Smith had 1) engaged in any false, misleading or deceptive act or practice, 2) engaged in any unconscionable action or course of action, 3) made a negligent misrepresentation, or 4) failed to comply with his fiduciary duty to the Critchfields. The jury also found that the Critchfields’ own negligence served as the proximate cause of any damages they sustained.

On October 4, the trial court entered a take-nothing judgment in Smith’s favor. On November 4, the Critchfields filed motions for new trial and judgment notwithstanding the verdict, which the trial court overruled. This appeal followed.

Review of the Trial Court’s Partial Summary Judgment Ruling

On appeal, the Critchfields contend that the trial court erred when it granted Smith a partial summary judgment on their negligence, negligence per se, and breach of contract causes of action. They also argue that the trial court committed reversible error when it bifurcated the liability and damage issues on its own motion.

Standard of Review

In reviewing a 166a(c) motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See Nixon, 690 S.W.2d at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either negate at least one essential element of the non-movant’s cause of action, or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c). The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant’s cause of action as a matter of law. Lee v. Lee, 43 S.W.3d 636, 640 (Tex.App.-Fort Worth 2001, no pet.). This court can affirm a summary judgment only upon the grounds raised in the motion for summary judgment. Id.

Negligence

The Critchfields contend that Smith violated both common-law and statutory duties he owed to the Critchfields by failing to offer them UM/UIM coverage in an amount equal to their personal liability coverage. Smith counters that he owed neither a common-law nor a statutory duty to offer any amount over the statutory minimum.

Negligence consists of three essential elements: 1) a legal duty owed by one person to another, 2) a breach of that duty, and 3) damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Duty is the threshold inquiry. Id. When no duty exists, there can be no negligence. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975).

In Texas, an insurance agent owes the following common-law duties to a client when procuring insurance: 1) to use reasonable diligence in attempting to place the requested insurance, and 2) to inform the client promptly if unable to do so. Moore v. Whitney-Vaky Ins. Agency, 966 S.W.2d 690, 692 (Tex.App.-San Antonio 1998, no pet.) (citing May v. United Servs. Ass’n of America, 844 S.W.2d 666, 669 (Tex.1992)). No legal duty exists on the part of an insurance agent to extend the insurance protection of his customer merely because the agent has knowledge of the need for additional insurance of that customer, especially in the absence of evidence of prior dealings where the agent customarily has taken care of his customer’s needs without consulting him. Pickens v. Texas Farm Bureau Ins. Cos., 836 S.W.2d 803, 805 (Tex.App.-Amarillo 1992, no writ) (citing McCall v. Marshall, 398 S.W.2d 106, 109 (Tex.1965)).

The Critchfields’ claim is comparable to the underlying claim in Moore. In that case, Moore repossessed an apartment complex and asked McLain, an insurance agent, to handle the liability insurance for the complex. Moore, 966 S.W.2d at 691. Moore thought that the insurance would cover any and all liabilities. Moore did not recall specifically discussing any types of coverage with McLain, and when Moore received the policy, he did not discuss the contents of the policy with McLain. Id. Five years later, the manager of the apartment complex terminated an employee who returned to work after suffering a work-related injury. Id. The employee filed suit against the apartment complex, and Moore believed that the claim was covered by his liability policy. The insurance company later sent a letter to the apartment complex, informing Moore that the claim was not covered. Moore then hired his own counsel and settled the suit. Id.

Moore filed suit against the insurance company, the agency, and McLain, alleging claims for negligence, breach of contract, fraud, and DTPA and Insurance Code violations. Moore contended that he should have been informed of the provisions of the policy and that McLain never told him what was in the policy. In his deposition, Moore admitted that McLain never told him that the liability policy would cover all lawsuits against him and that he never asked McLain to tell him what the policy covered. After the insurance company was nonsuited, McLain and the agency moved for summary judgment, contending that no one ever represented that Moore was covered for any particular act or conduct and that as a matter of law, no duty existed on the part of McLain or the agency to advise Moore whether or not coverage would be provided under the policy. Id. The trial court later ruled in favor of McLain and the agency by rendering a take-nothing summary judgment against Moore. Id.

On appeal, the court looked to the Texas Supreme Court’s decision in May to determine the scope of an insurance agent’s common-law duties. Id. at 692. The court held that McLain did not breach the duty to use reasonable diligence in attempting to place the requested insurance or the duty to inform the client promptly if unable to do so. In reaching its conclusion, the court noted Moore’s admission that he never requested a specific type of coverage and McLain did provide a policy of insurance in accordance with his understanding of Moore’s expectations. Id. Furthermore, Moore was never “ ‘led wrongly to believe that [his] policy provided protection against a particular risk that was in fact excluded from the policy’s coverage.’ ” Id. (citing May, 844 S.W.2d at 669-70). The court would therefore not extend an agent’s liability beyond affirmative misrepresentations to failures to disclose policy coverage limitations. Id.

The court in May expressed the rationale behind the infeasibility of a cause of action based on the failure to obtain complete insurance protection: “[I]f a breach of due care can be proved without a more concrete showing than a subsequent failure of coverage, agents would be rendered ‘blanket insurers.’ ” May, 844 S.W.2d at 671.

In the instant case, the Critch-fields maintain that Smith owed them a duty to “disclose certain information to assist [them] in making an informed decision” about their UM/UIM insurance coverage. According to McCall, such a duty to disclose information about higher insurance coverage does not exist unless there is evidence of prior dealings where the agent has taken care of his customer’s needs without consultation. Id. The summary judgment evidence reflects that Mr. Critchfield met with Smith on “multiple occasions” where Smith “provided review, analysis and advice” regarding the Critch-fields’ insurance needs. Mr. Critchfield’s deposition testimony shows that even though he knew that he had $100,000.00 in UM/UIM coverage, he never asked Smith for the $500,000.00 in coverage, never asked whether any coverage was adequate, and never asked for any different types of coverage. He also testified that Smith never told him the maximum amount of coverage he could buy or that $100,000.00 was the maximum amount of UM/UIM coverage he could obtain.

After a thorough review of the record, we have not found any evidence that Smith violated his specific common-law duties to 1) use reasonable diligence in attempting to place the Critchfield’s requested insur-anee, and 2) inform them if he was unable to do so. Furthermore, the Critchfields do not direct us to, nor can we find, any evidence in the record where Smith customarily took care of their insurance needs without consulting them, thereby creating a duty on Smith to extend the Critchfields’ insurance coverage. Because no evidence exists that 1) placed a duty on Smith to increase the Critchfields’ UM/UIM coverage or 2) raised a genuine issue of material fact demonstrating that Smith violated any common-law duty he owed to the Critch-fields, the trial court did not err in granting summary judgment on the Critchfields’ common-law negligence claims.

Negligence Per Se

The Critchfields also argue that Smith’s failure to offer higher UM/ UIM limits constituted negligence per se because it was a violation of article 5.06-1 of the Texas Insurance Code. Negligence per se is a concept whereby a legislatively imposed standard of conduct is adopted by courts as defining the conduct of a reasonable and prudent person. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979). In such a case, the jury is not asked to decide whether the defendant acted as a reasonable, prudent person would have acted under the same or similar circumstances. Id. The statute itself states what a reasonable, prudent person would have done. Id.

Section 3 of article 5.06-1 of the Texas Insurance Code states, in whole, that

[t]he limits of liability for bodily injury, sickness, or disease, including death, shall be offered to the insured in amounts not less than those prescribed in the Texas Motor Vehicle Safety-Responsibility Act and such higher available limits as may be desired by the insured, but not greater than the limits of liability specified in the bodily injury liability provisions of the insured’s policy.

Tex. Ins.Code Ann. art. 5.06-1(3) (Vernon Supp.2004). Section 1 of article 5.06-1 mandates that the “coverages required under [article 5.06-1] shall not be applicable where any insured named in the policy shall reject the coverage in writing....” Tex. Ins.Code Ann. art. 5.06-1(1) (Vernon Supp.2004).

The contention that an insurance agent owes a statutory duty, based on section three of article 5.06-1, to offer higher limits of UM/UIM coverage was rejected in Geisler v. Mid-Century Ins. Co., 712 S.W.2d 184, 187 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). In Geisler, Alfred Geisler died as a result of injuries sustained in an automobile accident. Id. at 185. The accident was caused by the negligence of the other driver, and she was covered by a policy with $10,000.00 per person and $20,000.00 per occurrence. After Geisler’s wife and child settled for the policy limits with the other driver’s insurance company and for $100,000.00 with his employer’s automobile insurance company, they sought to collect $100,000.00 in UM/ UIM benefits from Mid-Century, Geisler’s personal insurer. Id.

After the trial court entered a take-nothing judgment in favor of Mid-Century, the Geislers appealed. The stipulated facts demonstrated that Mid-Century had higher UM/UIM coverage available and would have increased coverage had Alfred so requested. Id. The facts also showed that there was no evidence to indicate that Geisler had requested higher limits or that Mid-Century had explained to him that such higher limits were available, and that Mid-Century did not obtain a written rejection of UM/UIM coverage from Geisler. Id. at 185-86.

The court noted that under article 5.06-1, Mid-Century had to either provide its insured with at least the statutorily required minimum UM/UIM coverage or obtain a written rejection of UM/UIM coverage. Id. at 187. Because Mid-Century complied with the article 5.06-1 requirement of coverage for UM/UIM benefits in at least the statutory minimum, it was not required to obtain a signed rejection of UM/UIM benefits from Alfred. Id. Furthermore, Mid-Century had no duty to make an affirmative offer of higher limits of UM/UIM coverage to Geisler. Id.

The Critchfields make the same argument as the Geislers did in their case. Because Smith had no duty under article 5.06-1 to offer any higher limits of UM/ UIM coverage, the Critchfields negligence per se argument must fail. The Critch-fields’ first issue is overruled.

Breach of Contract

In their second issue, the Critch-fields maintain that they raised a genuine issue of material fact with regard to their breach of contract claim. Specifically, they contend that they entered an oral contract with Smith where Smith would “fully advise them as to the appropriate amount of insurance coverage that they needed and to procure the amount of coverage that [they] requested.” Smith argues that the trial court properly granted summary judgment because the Critch-fields failed to produce evidence establishing that a contract existed between Smith and the Critchfields regarding the procurement of additional UM/UIM coverage.

To prove a breach of contract claim, the following elements must be satisfied: 1) a valid contract, 2) the plaintiff performed or tendered performance, 3) the defendant breached the contract, and 4) the plaintiff was damaged as a result of the breach. Richter v. Wagner Oil Co., 90 S.W.3d 890, 898 (Tex.App.-San Antonio 2002, no pet.). The following elements are required for the formation of a valid and binding contract: 1) an offer, 2) acceptance in strict compliance with the terms of the offer, 3) a meeting of the minds, 4) each party’s consent to the terms, and 5) execution and delivery of the contract with the intent that it be mutual and binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Consideration is also a fundamental element of every valid contract. Turner-Bass Assocs. of Tyler v. Williamson, 932 S.W.2d 219, 222 (Tex.App.-Tyler 1996, no writ). The elements of written and oral contracts are the same and must be present for a contract to be binding. Id. “In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications.” Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

In an affidavit attached to their response to Smith’s motion for summary judgment, Mr. Critchfield states that Smith offered to provide counsel and advice about obtaining automobile coverages that were necessary and proper for the Critchfields. Mr. Critchfield said that he accepted the offer and paid Smith the premium for his home and automobile coverage, with the understanding that a portion of that premium would represent his fee or commission for Smith’s services. He also states that he spoke with or met with Smith on multiple occasions and that Smith provided review, analysis, and advice pertaining to the Critchfields’ automobile insurance needs and appropriate coverages. On more than one occasion, Mr. Critchfíeld told Smith that he wanted the “maximum coverage” for the UM/UIM portion of his automobile policy. Smith told Mr. Critchfíeld that the $100,000.00 limit was enough insurance because, in Smith’s opinion, Mr. Critchfíeld had good health insurance coverage. Mr. Critch-field believed that Smith failed to advise, offer, or make Mr. Critchfíeld aware of the fact that he could purchase UM/UIM coverage in an amount no less than the statutory minimum and as high as the Critch-fields’ $500,000.00 limit of bodily injury liability coverage. Mr. Critchfíeld further stated that the agreement “required Mr. Smith to ascertain and provide the appropriate automobile insurance coverages and with regard to underinsured coverage to provide me the maximum coverage [he] was allowed under the policy that Mr. Smith had provided to [him].” In Smith’s deposition, he admits that he gauged Mr. Critchfíeld as someone who was wanting to obtain the maximum coverage he was financially capable of in order to protect his family. Smith also testified that there was a contractual relationship between him and Mr. Critchfíeld where he provided Mr. Critchfíeld with insurance advice, counsel, and coverages and that Mr. Critchfíeld paid him money in the form of commissions from Nationwide.

Based on the summary judgment evidence, and viewing such evidence in a light most favorable to the Critchfields, we find that the Critchfields raised a genuine issue of material fact on each of the elements of a valid oral contract. Smith offered his services to advise the Critchfields on their insurance coverages, and the Critchfields accepted this offer. Smith acknowledged that a contractual relationship existed between him and the Critchfields where Smith provided insurance advice and counsel. Therefore, a fact issue exists as to whether there was a meeting of the minds and consent to the terms of the contractual relationship. Smith’s admission that a contract existed between him and the Critchfields also raises a genuine issue of material fact as to whether the contract was executed with the intent that it be mutual and binding.

With regard to consideration, where a policy is issued at the request of an insured, the broker receives consideration and is the agent for the insured, even though the agent is paid with commissions from the insurer. Williamson, 932 S.W.2d at 223. Smith admitted receiving consideration from Nationwide as a result of the Critchfields’ premium payments. Therefore, a fact issue exists as to whether Smith received consideration from the Critchfields for the insurance services contract. See Frazer v. Texas Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 821 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (holding that a fact issue existed as to whether insurance agent breached an oral contract when he did not obtain higher UM/UIM coverage). Accordingly, the Critchfields’ second issue is sustained.

Bifurcation of Liability and Damage Issues

In their third issue, the Critch-fields contend that the trial court erred when it ruled, on its own motion, that the liability and damage issues would be tried separately with the same jury. Smith argues that the trial court did not abuse its discretion in electing to proceed with two trials. Smith also contends that the Critchfields failed to preserve error on this issue. We agree.

On June 21, 2002, apparently in response to information received, from the court coordinator that the trial court would be bifurcating the trial, the Critchfields filed a “Motion to Clarify or Reconsider” the trial court’s future decision to bifurcate the trial. On June 26, the trial court ordered that the parties would first proceed with a trial on Smith’s liability under the negligent misrepresentation, misrepresentation under the DTPA, and breach of fiduciary duty causes of action alleged by the Critchfields. The trial court also ordered that

... if the jury finds that Dennis E. Smith breached a duty owed to Plaintiffs under those three causes of action, then the trial shall proceed in which the jury will consider damages suffered by Plaintiffs as a result of the conduct of Dennis E. Smith, in conformance with the jury’s findings in the initial phase of the trial.

The Critchfields did not object to this ruling.

In order to present an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R.App. P. 33.1(a)(1) (emphasis added). The request, objection, or motion must state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex.R.App. P. 33.1(a)(1)(A). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly. Tex.R.App. P. 33.1(a)(2)(A). If the trial court refused to rule, the complaining party must have objected to the refusal. Tex.R.App. P. 33.1(a)(2)(B).

Premature objections preserve nothing for appellate review. Holmes v. Concord Homes, Ltd., 115 S.W.3d 310, 316 (Tex.App.-Texarkana 2003, no pet.). The Critchfields’ motion was filed five days before the trial court ordered the bifurcation of liability and damage issues; therefore, the motion was premature. No objections were made following the trial court’s order. Accordingly, the Critchfields’ failed to properly preserve error on the trial court’s bifurcation order. The Critch-fields’ third issue is overruled.

Conclusion

Smith did not owe the Critchfields either a common-law or statutory duty to offer higher limits of UM/UIM coverage; therefore, Smith cannot be held liable under a negligence or negligence per se theory of recovery. However, the Critchfields produced evidence which establishes a genuine issue of material fact as to whether a contract existed between the Critchfields and Smith where Smith provides insurance counsel and advice. Accordingly, the trial court erroneously granted summary judgment on the Critchfields’ breach of contract claim.

Finally, any error the Critchfields could assert with regard to the trial court’s order bifurcating the liability and damage issues was waived because the Critchfields failed to properly preserve such error. We therefore affirm the portion of the trial court’s judgment 1) granting summary judgment on the Critchfields’ negligence and negligence per se causes of action and 2) bifurcating the liability and damage issues into two trials heard by the same jury. However, we reverse and remand the portion of the trial court’s grant of summary judgment on the Critchfields’ breach of contract claim.

      . Section 3 of article 5.06-1 of the Texas Insurance Code limits UM/UIM coverage to an amount that is not less than the statutory minimum prescribed in the Texas Motor Vehicle Safety-Responsibility Act "and such higher available limits as may be desired by the insured, but not greater than the limits of liability specified in the bodily injury liability provisions of the insured’s policy.” Tex. Ins. Code Ann. art. 5.06-1(3) (Vernon Supp.2004). The minimum amounts of liability insurance coverage a person must carry are 1) $20,000.00 in bodily injury to or death of one person in one accident and 2) $40,000.00 in bodily injury to or death of two or more persons in one accident, subject to the $20,000.00 minimum for bodily injury to or death of one of the persons. Tex. Transp. Code Ann. § 601.072 (Vernon 1999).

      . The jury attributed 75% of the negligence to Frederick Critchfield and 25% to Claudia Critchfield.

      . The opinion only states that a take-nothing judgment was rendered in favor of Mid-Century; it does not clearly describe the procedural history of the case. Therefore, we assume that Mid-Century moved for summary judgment and the take-nothing judgment was the relief granted by the motion.


author: Chief Justice MORRISS.

text:
    Sherman Demetrius MARTIN, Appellant v. The STATE of Texas, Appellee.
    No. 06-03-00195-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 21, 2004.
    Decided Oct. 26, 2004.

      Clement Dunn, Longview, for appellant.
    Ray Bowman, Assistant District Atty., Longview, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

After Sherman Demetrius Martin convinced Bobby Simpson to give him a ride, Simpson was shot and killed with a handgun held by Martin. At trial, the central fact issue was whether the killing was in self-defense. A jury convicted Martin of murder, and he was sentenced to fifty-two years’ imprisonment. He contends on appeal the trial court erred by overruling objections to various pieces of evidence.

We affirm Martin’s conviction. In so doing, we dispose of Martin’s points of error in the following manner: (1) admitting testimony concerning Martin’s possession of a firearm was not error; (2) error was not preserved regarding Gerald Tem-pleton’s hearsay testimony concerning why Martin was asked to leave after the shooting; (3) while the fact that Jacquelyn Tem-pleton warned Simpson not to go with Martin was already in the record and so, itself, presented no reversible error, admitting her hearsay warning that Simpson’s going with Martin would be the “worst mistake he ever made” was error; (4) though her nonresponsive testimony that Martin had been “locked up” was already in the record and thus presented no reversible error, admitting her accompanying nonresponsive testimony that Martin had “started acting strangely” was error; but (5) the errors regarding her testimony — items (3) and (4) — were not harmful.

We use an abuse of discretion standard when reviewing the trial court’s decision to admit evidence. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760.

1. Admitting Testimony Concerning Martin’s Possession of Firearm was not Error

Martin contends the trial court erred by allowing testimony regarding his possession of a firearm. Martin testified that the only gun he ever possessed was a Tec-9 and that he never carried a gun. The trial court allowed two rebuttal witnesses to testify for the State that Martin had carried a pistol in his waistband around the time of the shooting. See Tex.Code CRiM. PROC. Ann. art. 36.01, § 7 (Vernon Supp.2004-2005).

The purpose of rebuttal evidence is simply to directly counter testimony from another source. As a general proposition, when a party introduces matters into evidence, that invites the other side to reply to that evidence. Wheeler v. State, 67 S.W.3d 879, 892 n. 13 (Tex.Crim.App.2002); Kincaid v. State, 534 S.W.2d 340, 342 (Tex.Crim.App.1976). The evidence is in rebuttal, and the trial court did not abuse its discretion by allowing the testimony.

2. Error was not Preserved Regarding Hearsay Testimony Concerning why Martin was Asked to Leave

Martin also complains regarding the admission of Gerald Templeton’s testimony concerning the reason he asked Martin to leave after the shooting. The reason Gerald gave was that his sister-in-law had expressed her desire that Martin leave because, she said, he had killed someone. It is essential to examine the context, the objections which were made, and the testimony which was admitted:

Q. Okay. And how is it that you came in contact with Sherman Martin?
A. I was visiting my brother, and my sister-in-law was talking to me about him.
[Counsel]: Your Honor, I’m going to object to hearsay.
The Court: I’ll sustain as to hearsay.
[Prosecutor]: You can’t go into what your sister-in-law was talking to you about.
A. Oh, okay.
Q. Do you understand?
A. Yes, sir.
Q. Okay. How was it that you came in contact with Sherman Martin?
A. I was leaving, and he drove up in an automobile.
Q. And was he given directions once he got out of the vehicle?
A. Yes, sir.
Q. And did you have any conversation with Sherman Martin?
A. Yes, sir.
Q. What was your conversation with Sherman Martin?
A. I told him to leave because my sister-in-law had asked him to leave and told me to tell him to leave.
Q. Okay. You told him to leave?
A. Yes, sir.
Q. Did you give him a reason why you told him to leave?
A. Yes, sir.
Q. What was that?
[Counsel]: Objection, Your Honor, hearsay.
The Court: What he said?
[Counsel]: Yes, sir.
The Court: Overruled.
Q. And the reason you told him to leave was why?
A. Because of the incident that had happened, and—
Q. Well, let me just — what did you tell him?
A. I told him to leave because my sister-in-law said leave and don’t come back.
[Counsel]: Objection, Your Honor, hearsay.
[Witness]: Well, she told me that. The Court: Well, he can testify as to what he said. Go ahead.
Q.What did you tell Sherman Martin when he got out of the car?
A. I told him to leave because my sister-in-law told him to leave because he had messed up, because he had killed somebody or something.
Q. Did you use the words, “You’d killed somebody”?
A. I remember saying it one or two times.

(Emphasis added.)

To preserve error for appellate review, there must have been a timely request, objection, or motion to the trial court, and a ruling by the trial court. Tex. R.App. P. 33.1(a)(1), (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999). An objection must be made every time inadmissible evidence is offered. Tex. R.App. P. 33.1; Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991); Long v. State, 10 S.W.3d 389, 399 (Tex.App.-Texarkana 2000, pet. ref'd). An alternative is to get the trial court’s approval for a continuing objection. Sattiewhite v. State, 786 S.W.2d 271, 283 n. 4 (Tex.Crim.App.1989).

Ultimately — probably because the trial court had overruled two prior objections to questions concerning why Gerald told Martin to leave — the embedded hearsay contained in Gerald’s subsequent testimony was not objected to; therefore, error in its admission was not preserved. There are two factors contributing to our conclusion that error was not preserved: first, counsel did not object each time the evidence was offered, as is required; and, second, the objections were, in the trial court’s thinking, directed at only Gerald’s quotes of his own words, not his sister-in-law’s words. When the hearsay objections were made, the trial court clearly believed counsel’s concern was just about what Gerald said. At no time did counsel point out to the trial court that the real concern was over the sister-in-law’s embedded hearsay statement that Martin “killed somebody.” The admitted evidence quoted specific claims of the sister-in-law and therefore was different in nature from, “what [Gerald] said,” the only thing discussed when the objections were made earlier. Because there was no objection at that time, the trial court was not given the chance to rule on the admissibility of the embedded hearsay. Thus, error was not preserved.

3. It was Error to Admit Jacquelyn Templeton’s Hearsay Warning that Simpson’s Going with Martin would be His “Worst Mistake”

Martin complains of testimony by Jacquelyn Templeton in which she recounted her part of a conversation she had with Simpson and Martin shortly before the shooting, during which she told Simpson — in Martin’s presence and after Martin asked Simpson for a ride — that “it was going to be the worst mistake he ever made, not [sic] to be fooling with [Martin] at that time. I told him not to take [Martin] in his truck, but he did anyway.” Counsel objected based on hearsay. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evm 801(d).

The State argues on appeal that this is not hearsay because the recounted statement is not one offered for the factual content, but- for the declarant’s belief or opinion about her suspicions. We disagree. The same contention was rejected by this Court earlier this year:

Such reasoning, if approved, would make any opinion admissible, even though the facts on which such opinion is based are inadmissible, without recourse to the hearsay objection. This is not consistent with the rule. “Matter asserted” includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from the declarant’s belief as to the matter. Tex.R. Evid. 801(c). Hearsay evidence is not admissible. See Tex.R. Evid. 802. The matter asserted in this case was the opinion. It was hearsay and inadmissible.

May v. State, 189 S.W.3d 93, 103-04 (Tex.App.-Texarkana 2004, pet. ref'd). Likewise, this testimony by Jacquelyn was hearsay.

We note, however, that the information was already at least partially in the record. The record reveals that testimony somewhat to the same effect — though less powerful- — was previously admitted through the same witness:

Q. All right. On — about 12:00 o’clock, what happened?
A. He [Martin] came to the door and knocked, and I saw a truck outside, and it was Bobby [Simpson], And I asked him [Martin] what he wanted, and he said he was looking for Ken. And I went and talked to Bobby, and I was trying to tell Bobby that he didn’t need to hang with Sherman, but—

(Emphasis added.) This testimony was not objected to and is in the same vein as the objected-to testimony. Although it is not as readily recognizable as hearsay, and certainly not as dramatically phrased as the objected-to testimony, nonetheless this hearsay, too, recounts a warning from Jacquelyn that Simpson not spend time with Martin that night. So, we conclude that the fact she warned Simpson was previously in the record.

Generally, an objection must be made every time inadmissible evidence is offered. Ethington, 819 S.W.2d at 858. Where a party fails to make a timely objection each time particular testimony is offered, no reversible error is presented. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998); Ethington, 819 S.W.2d at 858. Therefore, the subsequent admission of the fact that Jacquelyn warned Simpson about spending time with Martin does not constitute reversible error.

The objected-to hearsay, however, contained a dramatic piece of information not communicated in the earlier testimony, that spending time with Martin that night “was going to be the worst mistake he ever made.” We hold that phrase was erroneously admitted. We analyze its harmfulness in section five of this opinion.

J. Admitting Nonresponsive Testimony that Martin had been “Locked Up” was not Error, but Admitting Testimony that Martin “Started Acting Strangely” was Error

Martin also contends the trial court erred by overruling his objection to volunteered, nonresponsive testimony by Jacquelyn:

Q. Okay. And this gun — you say Sherman would come over to your house every day?
A. Mostly every day, unless he was locked up. He had been coming to my house ever since he was a child. He was like a son to me until he after [sic] started acting strangely, and I had—
[Counsel]: I move to strike as nonre-sponsive, your Honor.
The Court: Overruled.

(Emphasis added.)

The challenged testimony was not responsive to the question, which was whether Martin came over to Jacquelyn’s house every day. The two, arguably damaging, nonresponsive elements to her answer were that Martin was at least occasionally “locked up” and that he had started acting strangely.

The stronger information, that Martin was at least occasionally “locked up,” had previously entered the record without objection. On direct examination of Jacquelyn by the State, this exchange had occurred:

Q. Okay. And how often would you see Sherman?
A. Almost every day, unless he was locked up or something, because him [sic] and my nephew is [sic] like brothers.”

(Emphasis added.)

Generally, an objection must be made every time inadmissible evidence is offered. Ethington, 819 S.W.2d at 858. Where a party fails to make a timely objection each time particular testimony is offered, no reversible error is presented. See Leday, 983 S.W.2d at 718; Ethington, 819 S.W.2d at 858. We hold that overruling counsel’s objection to Jacquelyn’s volunteered phrase “unless he was locked up” presents no reversible error, since it was already in the record without objection.

Yet the objected-to testimony included the volunteered phrase “until he after [sic] started acting strangely.” That comment was not responsive to the question asked, and the trial court erred by overruling the objection to that extent.

5. Preserved Errors were not Harmful

The next step is to apply a harm analysis to the preserved errors. Ordinarily, the admission of inadmissible evidence constitutes nonconstitutional error. In our review of nonconstitutional error, such as that found here, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex.R.App. P. 44.2(b). A “substantial right” is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997).

If, after examining the whole record, we find that error “may have had ‘substantial influence’ on the outcome of the proceeding,” we should reverse. Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002). If there are multiple errors, we should consider their cumulative effect in our analysis. Stahl v. State, 749 S.W.2d 826 (Tex.Crim.App.1988); see Harris v. State, 56 S.W.3d 52, 59 (Tex.App.Houston [14th Dist.] 2001, pet. ref'd).

If we have “a grave doubt” that the result was free from the substantial influence of preserved error, then we must reverse. Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002). “Grave doubt” means that, “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. Thus, “in cases of grave doubt as to harmlessness the petitioner must win.” Id. We have no such doubt. The errors were harmless.

Our more significant concern relates to the hearsay statement that Simpson’s spending time with Martin that night “was going to be the worst mistake he ever made.” This dramatic, erroneously-admitted, hearsay testimony was mentioned — once—in the State’s jury argument, thus giving it some prominence. The phrase suggests Jacquelyn’s belief regarding Martin’s dangerousness to Simpson shortly before the shooting — an idea which was already in the record without objection — and tends to promote the State’s position that Martin was not acting in self-defense and was thus guilty of murder. The other erroneously admitted testimony, about Martin “acting strangely,” is so vague as to strongly suggest it had no effect on the verdict, especially in light of our harm analysis, below.

On review of the record, we conclude the “worst mistake” phrase is a small piece of debris floating in a sea of evidence tending to show Martin’s consciousness of guilt, partial admissions, and numerous inconsistencies. Though there is certainly evidence on both sides, the important confliet-ing evidence comes from Martin on one side and a host of witnesses on the other.

There is evidence both that Martin was carrying a pistol and that he was not, and a jury could conclude that Martin was carrying a gun. Martin admitted that he went with Simpson and shot him, but there is evidence that Martin was bruised, and no evidence to the contrary — supporting his position that a struggle took place between them. But the fact a struggle took place proves nothing. The injuries could have resulted from either Simpson’s attempts to defend himself or from an unprovoked attack. The evidence also shows that Simpson had used cocaine shortly before they drove away together.

Martin testified at trial that he had borrowed Simpson’s truck and that, once Martin was in the truck, Simpson directed him into a location near Simpson’s home, where Simpson was going to wait for Martin to return. Martin testified that, when he stopped the truck, Simpson began hitting him in the head in an apparent robbery attempt. He said that, after landing several blows, Simpson appeared to be trying to reach something below him, that he managed to yank up Simpson’s arm and bite it, and that, when he looked down, he saw Simpson trying to get a gun. Martin testified they wrestled over the gun and it went off, shooting Simpson. Martin then got out of the pickup truck with the gun and ran to a nearby house to seek help. The house owner called the police, and Martin panicked, being concerned that he might already be wanted on other warrants, drove the truck away, and left Simpson there and still alive, according to Martin’s testimony.

The doctor who performed the autopsy testified the gun was fired from between a few inches and a couple of feet from the victim. He also testified that a blood test showed the victim had a low level of alcohol and cocaine in his blood, as well as metabolites created as cocaine broke down in the body. On cross-examination, the doctor also testified that a mark on Simpson’s forearm could have been the result of a bite.

But by far the greater bulk of the evidence lines up against Martin.

The truck in which Simpson’s shooting occurred was burned shortly after the shooting. Though Martin denied knowing how it was burned, he admitted believing that one of his “home boys” probably burned it so Martin would not go to jail. Jacquelyn, however, testified that Martin told her after the shooting he was going to burn the truck. Gerald testified that Martin admitted later that evening to having burned the truck, so he would not get into trouble. There was expert testimony that, based on examination of the burned truck, it had been intentionally burned with gasoline. Martin testified he had told only Jacquelyn where he had parked the truck after the shooting. If the truck had been burned by any friend of Martin other than Jacquelyn, she or Martin must have told someone else the location of the truck. There was no evidence anyone, other than those two, knew the location of the truck. Though Martin admitted abandoning the truck, he does not account' — other than with speculation — for how it was burned.

Martin denied owning or having a gun, but there was contrary evidence from two of Martin’s acquaintances. This evidence was that Martin owned a large black semiautomatic handgun he had given the name “Black Beautiful.” There is testimony that Martin was carrying a handgun in his pants the night of the shooting. Martin admitted returning to the scene of the shooting while Simpson was still alive, putting the gun to Simpson’s head, and demanding that the wounded Simpson drive him back to Longview. When Simpson said he could not drive, Martin admits he drove himself back to Longview. No firearm was recovered, but a firearm expert opined that the shell casing recovered from the truck was consistent with the use of a semi-automatic pistol in the shooting. Though Martin admitted having possession that evening of the gun that killed Simpson, he does not account for what happened to it.

Martin denied that, during the confrontation between Simpson and Martin, they exchanged any words at all. But there was contrary evidence from two bystanders in the immediate area of the shooting. Maurice Earl was awakened that night by a loud noise and heard a spoken threat, “I’ll kill you.” A few seconds later, Earl saw a tall, slim, shirtless black man quickly walking. That description was consistent with Martin’s appearance. Though Earl says he did not clearly hear a gunshot, the loud noise that awakened him may have been the shot. Eddie Jackson, another resident in the area of the shooting, testified he got up from his couch when he heard loud arguing from two people outside. After he laid back down on the couch, he heard a gunshot. He got up again and saw a young, dark-skinned, shirtless man with braided hair — again a description consistent with Martin’s appearance — come trotting up to the Jackson house with a large, dark, semi-automatic pistol. Neither bystander could identify any party to the conversation, but there is no evidence of any other confrontation in that location that night.

When the State cross-examined Martin comparing his custodial statement with his trial testimony, many contradictions and inconsistencies were developed. While Martin’s statement recounted, “I shot him,” his live testimony insisted “the gun went off’ accidentally during a struggle. His statement indicated Simpson got tangled in the steering wheel, though at trial Martin denied that happened. Martin’s statement indicated his belief that Simpson had been shot “in the left” side — consistent with the physical evidence — while his live testimony maintained Martin thought Simpson had been shot in the leg. In his trial testimony, Martin maintained that, during the struggle, Simpson had patted Martin’s pocket, indicating to Martin that Simpson intended to take his money, though Martin’s statement omitted any reference to that detail. Time after time, as Martin was confronted with inconsistencies, he was relegated to a weak surmise that the officer who prepared the statement had made yet another mistake, despite Martin’s signature on the completed statement.

The evidence showed Martin fled the scene of the shooting and did not want authorities called after the shooting. It showed he did not report the incident— which he portrayed inconsistently as an accidental or self-defense shooting on the heels of Simpson’s attempted robbery of Martin — to police and delayed turning himself in until two days after the shooting. Martin also reportedly told officers initially that he knew nothing about the shooting, before changing his mind and making his statement.

Outside of Martin’s own testimony, which the jury apparently did not believe — and, we are convinced, would not have believed even without the two pieces of erroneously admitted evidence — the evidence leads to the firm conviction that, after shooting Simpson, Martin, in a course of action consistent only with a consciousness of guilt, fled the scene of the shooting, burned the truck where the shooting occurred, disposed of the murder weapon, changed into clean clothes, and tried to avoid police for a couple of days.

In light of the record as a whole, we are reasonably assured that the errors, considered together, did not substantially influence the jury’s verdict. Therefore, they were not harmful. See Tex.R.App. P. 44.2.

We affirm the judgment.

      . The State also argues the evidence was admitted to show that the pistol used to kill Sherman was the one owned and possessed by Martin. There is nothing in this evidence to provide such a link.

      . In Potier v. State, 68 S.W.3d 657 (Tex.Crim.App.2002), the court held that erroneous evi-dentiary rulings by a trial court must deny a criminal defendant his or her right to present a meaningful defense in order to rise to the level of "constitutional error.” The exclusion of a defendant’s evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense. Id. at 663, 665; Allen v. State, 80 S.W.3d 108, 113-14 (Tex.App.-Texarkana 2002, pet. ref'd). There was no constitutional error here.

      . Error will be considered harmless if we, after examining the record as a whole, are reasonably assured that the error did not influence the jury’s verdict or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref’d).

      . Martin's scenario that Simpson was trying to rob him was undermined by evidence that Simpson was employed and Martin was not.

      . Martin’s suggestion that the gun was Simpson’s and not Martin's is contradicted by other testimony that Martin owned and carried a gun and that Simpson did not. Simpson's wife, from whom he was separated, testified that Simpson did not own a firearm, but also acknowledged that there was a side of his life connected with his ongoing drug use that she was not really familiar with.

      . The testimony that Martin admitted burning the truck on the same evening of Simpson’s death is rather powerful evidence of Martin’s consciousness of guilt. It is a well-established principle that destruction of evidence is probative of guilt. Lily v. State, 789 S.W.2d 433, 435 (Tex.App.-Houston [14th Dist.] 1990, no pet.) (defendant grabbed document from witness in courthouse hall and flushed it down toilet); Billings v. State, 725 S.W.2d 757, 762 (Tex.App.-Houston [14th Dist.] 1987, no pet.); George v. State, No. 12-02-00251-CR, 2003 WL 22047825, (Tex.App.-Tyler Aug. 29, 2003, no pet.) (not designated for publication) (defendant exhibited consciousness of guilt by attempting to eat cocaine).

      . Though Martin’s predominant theme during his testimony was that the gun went off accidentally during the struggle, he also admitted at other times that the gun malfunctioned. Martin says he knew it malfunctioned because, when he tried to pull the trigger, it had "frozen,” and he "kept having to cock” the gun.

      . Martin’s consciousness of guilt is shown by his flight from the scene. Santos v. State, 961 S.W.2d 304, 305 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) ("unexplained flight has long been deemed indicative of consciousness of guilt”), citing Cawley v. State, 166 Tex.Crim. 37, 310 S.W.2d 340, 342 (1957) (quoting Proverbs 28:1, "the wicked flee when no man pursueth”). The Texas Court of Criminal Appeals has stated flight amounts to a quasi-admission of guilt. Id. No distinction has been made between flight from the immediate scene of the crime and flight from peace officers. See Valdez v. State, 623 S.W.2d 317 (Tex.Crim.App.1979) (flight from crime scene).