author: Justice ROSS.

text:
    Prince BROWN, jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00046-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 16, 2004.
    Decided Dec. 14, 2004.
    Rehearing Overruled Jan. 4, 2005.
    Discretionary Review Refused June 15, 2005.

      William T. Hughey, Law Office of William T. Hughey, Marshall, for appellant.
    A1 Davis, Asst. Dist. Atty., Joe Black, Harrison Co. Dist. Atty., Marshall, for ap-pellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Prince Brown, Jr., appeals from his conviction by a jury for two counts of delivery of a controlled substance, cocaine, in an amount of more than one but less than four grams. Brown pled true to the enhancement paragraphs, and the jury assessed his punishment at forty years’ imprisonment. Brown contends the evidence is legally insufficient because the testimony of the informant working for the police was not sufficiently corroborated and because of a variance between the indictment and the proof at trial. Brown also contends the trial court erred in denying a mistrial based on the difference between the videotape used at trial and the videotape provided to him in discovery. We overrule these contentions and affirm the judgment.

Factual Background

The State’s evidence showed that, on February 26, 2003, Brown sold Timothy Taylor, who was acting covertly on behalf of the Marshall Police Department, approximately 1.05 grams of crack cocaine. Taylor originally began working for the Marshall Police Department in order to avoid convictions for certain criminal charges pending against him, but at some point became a paid employee of the police department. Around 4:43 p.m., Taylor left a location near Taylor’s house where he had met with Lieutenant Joe Arledge and two other officers, and where he had been equipped with video surveillance equipment. The police officers had provided the vehicle used by Taylor and had searched both the vehicle and Taylor before he left. Taylor was observed at 4:47 p.m., by a “loose rolling surveillance” being conducted by the police, in the vicinity of Brown’s residence. At 4:51 p.m., Taylor was observed leaving Brown’s residence, and he arrived at a second predetermined location at 4:54 p.m. Taylor provided the police with a bag containing 1.05 grams of crack cocaine and testified Brown had sold him the cocaine. The videotape of the transaction did not record the actual transfer of the cocaine.

On March 5, 2003, Brown sold Taylor approximately 1.48 grams of crack cocaine. Similar to the prior transaction, Taylor met Arledge and two other officers at a predetermined location and was equipped with video surveillance equipment, as well as $150.00 for the purchase of the cocaine. While Taylor used his own vehicle for this transaction, Arledge testified the police searched both Taylor and the vehicle before Taylor left the location. Taylor left the officers at 2:21 p.m. and was observed arriving at Brown’s residence at 2:26 p.m. Taylor was observed leaving Brown’s residence at 2:39 p.m. and arrived at another predetermined location at 2:41 p.m. Taylor provided the officers with a bag containing approximately 1.48 grams of crack cocaine and testified Brown had sold him the cocaine. As before, the videotape did not reveal the actual transaction, but it did record the following conversation:

[Brown]: What you need?
[Taylor]: The same thing.
[Brown]: What did you get from me the other day?
[Taylor]: 1, 5, 0.

When arrested the next day, Brown had possession of $60.00 of the $150.00 which Taylor used to buy the drugs. The police had photocopied the money provided to Taylor and three $20.00 bills found in Brown’s possession had matching serial numbers. This money had been provided to Taylor by the police for the transaction on March 5. Arledge testified he had photographed the money before he provided it to Taylor. No money from the prior transaction was discovered.

The Testimony of the Covert Witness was Corroborated

In his first point of error, Brown contends the evidence is legally insufficient to corroborate Taylor’s testimony. According to Brown, the State only placed him at the scene of the offense, and the evidence, without the covert witness testimony, does not tend to connect him to the offense.

Article 38.141 of the Code of Criminal Procedure requires that testimony of a person who is not a licensed police officer or special investigator, but who is acting covertly on behalf of the police, be corroborated by other evidence tending to connect the accused to the offense. TexCode CRiM. PROG. Ann. art. 38.141 (Vernon Supp. 2004-2005). Article 38.141 provides:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

Tex.Code CRiM. PROC. Ann. art. 38.141(a), (b). Similar to the concerns raised by accomplice witness testimony, covert witnesses may have incentives to he or shade their testimony in favor of the state, which requires such testimony to be viewed with a measure of caution. Young v. State, 95 S.W.3d 448, 451 (Tex.App.-Houston [1st Dist.] 2002, pet. ref d).

Because the language of Article 38.141 is identical to Article 38.14, which requires corroboration of accomplice witness testimony, other courts of appeals have adopted the standards for accomplice witness testimony in applying Article 38.141. See Torres v. State, 137 S.W.3d 191, 196 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 793 (Tex.App.-Eastland 2003, pet. ref'd); Young, 95 S.W.3d at 451; Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.-Austin 2002, no pet.). We agree that the interpretations of Article 38.14 relating to accomplice witness testimony are persuasive and applicable to Article 38.141.

Legal and factual sufficiency standards of review are not applicable to a review of covert witness testimony under Article 38.141, because corroboration of the covert witness testimony is a statutory requirement imposed by the Texas Legislature. Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 460; see Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (accomplice witness testimony). The covert witness rule only requires that there is some other evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Torres, 137 S.W.3d at 196; see Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997).

In determining whether there is “other evidence” which tends to connect the accused with the offense, we must eliminate all covert witness testimony and determine whether the remaining inculpa-tory facts and circumstances tend to connect the appellant to the offense. Torres, 137 S.W.3d at 196; Young, 95 S.W.3d at 451; Cantelon, 85 S.W.3d at 461. In our analysis of whether there is sufficient corroboration, we will eliminate from consideration all of Taylor’s testimony. Article 38.141 will be satisfied if there was some other evidence that tended to connect Brown with the cocaine transactions.

Brown’s presence at the scene of the crime was clearly established in both transactions. Taylor’s cars were searched before both transactions, a surveillance was conducted following Taylor’s movements on both days, and both videotapes recorded the presence of Brown at Brown’s residence. However, Brown’s presence alone is not enough to corroborate the accomplice testimony. Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice testimony. Torres, 137 S.W.3d at 196. However, proof that the accused was at or near the scene of the crime at or about the time of its commission, coupled with other suspicious circumstances, may be sufficient to tend to connect the accused to the crime. Id.; see Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984). Even apparently insignificant incriminating suspicious circumstances may sometimes prove to be sufficient corroboration. Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 461; see Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Cumulative evidence of “suspicious circumstances” can be sufficient evidence which “tends to connect” a defendant to the alleged offense, even if none of the circumstances would be sufficient individually. Cantelon, 85 S.W.3d at 460-61. We will examine the other evidence that tends to connect Brown to each offense in turn.

The State introduced sufficient “suspicious circumstances” tending to connect Brown to the March 5 transaction. Three $20.00 bills found in Brown’s possession had matching serial numbers with the money photocopied by the police. Arledge testified he had photocopied the money before he provided it to Taylor. The videotape of the March 5 transaction recorded the following conversation:

[Brown]: What you need?
[Taylor]: The same thing.
[Brown]: What did you get from me the
other day?
[Taylor]: 1,5,0.

The money and the above conversation, when combined with Brown’s presence at the scene, are sufficient to tend to connect Brown to the offense.

Brown argues that the evidence of suspicious circumstances is insufficient to tend to connect him to the February 26 transaction. While Brown’s presence was established at the scene of the offense, none of the money, which had previously been photocopied, provided to Taylor to purchase cocaine, was found in Brown’s possession. As discussed above, the videotape of the March 5 transaction recorded Brown asking Taylor what he wanted and asking what he had gotten “the other day.” While a date is not specified identifying the “other day,” the fact Brown had provided “the same thing” to Taylor previously is a suspicious circumstance. In addition, the videotape of the February 26 transaction records Brown entering the house, after a brief conversation with Taylor, and then exiting with something in his (Brown’s) hand. The combined effect of Brown’s presence at the scene and the suspicious circumstances, including the conversation during the March 5 transaction and the fact Brown entered his residence and returned with something in his hand, is sufficient to corroborate the covert witness’ testimony.

In Young, the First District Court of Appeals held that the corroboration of a covert witness’ testimony was insufficient because the only evidence linking the defendant to the offense was the covert witness’ identification of the defendant’s voice on an audiotape. Young, 95 S.W.3d at 452. The court noted that, without the informant’s testimony, the accused was not linked to the audiotape, which was the only noninformant testimony linking Young to the crime. Id. This case is distinguishable from Young because the police officers, who conducted a surveillance of Taylor’s travels, observed Taylor’s vehicle at Brown’s residence and because the recording of the transaction included a videotape recording rather than just an audiotape recording.

We conclude that sufficient corroboration of the covert witness testimony exists. The State introduced sufficient evidence to corroborate both the February 26 and March 5 transactions. We overrule Brown’s first point of error.

The Variance Was Immaterial

Brown contends, in his second point of error, that the evidence is legally insufficient because of a variance between the indictment and the proof at trial. The indictment specified Brown sold the cocaine to “T. Taylor,” while the proof at trial established that the undercover officer was “Timothy Taylor.” As Brown correctly acknowledges, the State is permitted under Article 21.07 of the Code of Criminal Procedure to indict using one or more of the initials of a person’s given name. Tex.Code CRiM. PROC. Ann. art. 21.07 (Vernon Supp.2004-2005). Brown argues, though, that the State is obliged to connect the initial and the actual name at trial. Because the State did not prove Timothy Taylor was the same person as “T. Taylor” in the indictment, a variance existed between the indictment and the evidence at trial.

“A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). Only a material variance requires reversal. See Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App.2002). “The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant’s ‘substantial rights’ is immaterial.” Gollihar, 46 S.W.3d at 247-48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App.1995); see also Rojas v. State, 986 S.W.2d 241, 246 (Tex.Crim.App.1998). The defendant has the burden of demonstrating surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex.Crim.App.2001). In order to determine whether a defendant’s “substantial rights” have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge against him or her sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).

In Fuller, the Texas Court of Criminal Appeals held that a variance between an indictment that alleged that the victim was “Olen M. Fuller” and the evidence at trial which referred to the victim as “Mr. Fuller” or as “Buddy” was an immaterial variance. Fuller, 73 S.W.3d at 254. Similar to Fuller, the variance in this case does not involve a statutory element of the offense and there is no showing that Brown was surprised or prejudiced by the variance. The indictment, as written, sufficiently informed Brown of the charge against him and the variance would not subject Brown to another prosecution for the same offense. The variance is immaterial.

Legally Sufficient Evidence Exists

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.1991).

Evidence sufficiency should be measured against a “hypothetically correct” jury charge. See Gollihar, 46 S.W.3d at 253; Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240. The “ ‘law5 as ‘authorized by the indictment’ must be the statutory elements” of the offense charged “as modified by the charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000). The “hypothetically correct” jury charge cannot “wholly re-write the indictment,” but is not required to “track exactly all of the allegations in the indictment.” Gollihar, 46 S.W.3d at 253.

The hypothetically correct jury charge in this case would have required the jury to find that Brown knowingly delivered the controlled substance to Timothy Taylor rather than T. Taylor. Taylor testified Brown sold him the substances provided to the police. As discussed above, Taylor’s testimony was sufficiently corroborated. Ruben Rendon, a criminalist with the Texas Department of Public Safety, testified the substance provided to the police by Taylor on both occasions was cocaine. The cocaine, including some adulterants and dilutants, purchased by Taylor February 26 weighed 1.05 grams, and the cocaine purchased March 5 weighed 1.48 grams. Viewed in a light most favorable to the prosecution, a rational juror could have found Brown guilty of both offenses beyond a reasonable doubt. Because the variance is immaterial and the evidence is legally sufficient, we overrule Brown’s second point of error.

The Trial Court Did Not Err in Denying the Mistrial

In his last point of error, Brown contends the trial court erred in denying his motion for a mistrial because of the difference between the videotape provided to the defense before trial and the videotape admitted into evidence. On the copy of the videotape provided to the defense, the audio was not intelligible. However, on the videotape introduced at trial, the audio could be understood. The State claimed the audio on all copies made at the same time the defense’s copy was made was not as intelligible as the original videotape. The State alleged it did not discover the audio could be understood better on the original until shortly before trial and asserted the originals had been available for the defense to examine. The State argues Brown failed to preserve error.

To preserve error, an objection must be “timely, specific, pursued to an adverse ruling, and, with two exceptions, contemporaneous — that is, made each time inadmissible evidence is offered-” Geuder v. State, 115 S.W.3d 11, 18 (Tex.Crim.App.2003) (discussing one exception, where evidence is heard outside jury’s presence to determine admissibility); see Broderick v. State, 35 S.W.3d 67, 76 (Tex.App.-Texarkana 2000, pet. refd). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App. [Panel Op.] 1980); In re G.A.T., 16 S.W.3d 818, 828 (Tex.App.Houston [14th Dist.] 2000, pet. denied); see Stults v. State, 23 S.W.3d 198, 205-06 (Tex.App.-Houston [14th Dist.] 2000, pet. refd).

When the videotape was offered into evidence, Brown’s counsel stated he had no objection. The State contends this statement waived any error. However, an objection is not required until the basis of relief becomes apparent. Johnson v. State, 878 S.W.2d 164, 167 (Tex.Crim.App.1994); see Crane v. State, 786 S.W.2d 338, 348 (Tex.Crim.App.1990); Thornton v. State, 994 S.W.2d 845, 852 (Tex.App.-Fort Worth 1999, pet. ref'd); Morgan v. State, 816 S.W.2d 98, 102 (Tex.App.-Waco), pet. ref'd, 817 S.W.2d 706 (Tex.Crim.App.1991). The defense may not have been aware of the difference in the videotape when the State introduced that videotape into evidence.

While the difference between the videotape provided to the defense and the videotape admitted into evidence may not have been apparent at the time of admission, the difference would have been apparent as soon as the videotape was played. After the basis for relief became apparent, the defense failed to make a timely objection. Taylor provided a play-by-play commentary while the videotape was played before the jury. Taylor was then cross-examined, Rendon provided lengthy testimony concerning the tests he performed identifying the substance as cocaine, the State rested, and the jury was dismissed for lunch before the defense made any objection to the videotape. Because Brown did not make a timely objection as soon as the basis for relief became apparent, he did not preserve error for appellate review. We overrule his last point of error.

Conclusion

The testimony of the covert witness was sufficiently corroborated by other evidence that tended to connect Brown to the offense. The variance between the indictment and the evidence at trial was immaterial, and legally sufficient evidence exists to support the jury’s verdict. Error was not preserved concerning the difference between the videotape provided to the defense before trial and the videotape admitted into evidence.

We affirm the judgment.

      . We note that the State asserted the prosecutor and defense counsel had discussed the matter earlier. However, there is no evidence Brown’s counsel had viewed the original before trial. The defense may not have been aware of the extent the audio portion of the videotape tended to incriminate Brown. The effect of the difference may not have been apparent at the time the videotape was introduced.


source: Caselaw Access Project

author: Chief Justice VALDEZ.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Frank J. SCANIO, IIII, Appellee.
    No. 13-02-678-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Dec. 22, 2004.
    Rehearing Overruled Jan. 20, 2005.

      Elvis G. Schulze, ALR Appeals, Kevin Michael Givens, Supervising Atty., ALR Appeals, Austin, for Appellant.
    Robert L. Ramey, Corpus Christi, for Appellee.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
   OPINION

Opinion by

Chief Justice VALDEZ.

Appellant, Texas Department of Public Safety (DPS), brings this appeal following the county court’s order reversing the administrative law judge’s (ALJ) suspension of appellee’s, Frank J. Seanio, III, driving license. In two issues, appellant asserts the county court erred by: (1) “assuming subject matter jurisdiction and denying appellant’s motion to transfer the case to district court;” and (2) “reversing the ALJ’s finding that DPS had proven the elements of its case.” We reverse and render judgment upholding the ALJ’s decision.

I. Factual and Procedural Background

This is an appeal of an administrative license suspension under the Administrative Procedure Act based on appellee’s refusal to submit a breath specimen for an alcohol concentration test. An administrative hearing was held, and the ALJ found sufficient evidence to sustain the suspension. An order evidencing the ALJ’s findings was entered on February 28, 2002.

Appellee properly filed an appeal of the ALJ’s order with the Refugio County Court. Appellant filed an answer in the appeal on April 1, 2002, and a motion to transfer venue on October 29, 2002. The county court denied appellant’s motion to transfer venue to the district court on October 31, 2002, and reversed the ALJ’s order suspending appellee’s driving license by order dated November 4, 2002. Appellant filed its notice of appeal on November 27, 2002.

II. ANALYSIS

1. Motion to Transfer Venue

In its first issue, appellant asserts the county court erred by assuming subject matter jurisdiction and denying its motion to transfer the case to the district court. To support its proposition, appellant cites section 524.041(b) of the transportation code, which provides:

[a] petition under Subsection (a) must be filed in a county court at law in the county in which the person was arrested or, if there is not a county court at law in the county, in the county court. If the county judge is not a licensed attorney, the county judge shall transfer the case to a district court for the county on the motion of either party or of the judge.

See Tex. TRAnsp. Code Ann. § 524.041(b) (Vernon 2004) (emphasis added).

The county court concluded appellant waived its right to have the case transferred when it filed an answer prior to its motion to transfer venue. Appellant does not dispute it filed an answer prior to its motion to transfer venue, but contends the issue is jurisdiction rather than venue. Appellant asserts section 524.041(b) operates to divest the county court’s jurisdiction when the county judge is not a licensed lawyer and a party makes a motion. Thus, as the issue is lack of subject matter jurisdiction, it can be raised at any time. We disagree.

Standard of Review

Appellant’s first issue presents a question of statutory interpretation. The Court reviews questions of statutory interpretation de novo. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

Analysis

The right to an appeal in a license suspension proceeding does not exist in the absence of statutory authority since the entitlement to a driver’s license is not a right, but a privilege. Tex. Dep’t of Pub. Safety v. Benoit, 994 S.W.2d 212, 214 (Tex.App.-Corpus Christi 1999, pet. denied). When a statute creates a privilege or right not existing at common law and prescribes a remedy to enforce the right, the courts may act only in the manner provided in the statute which created the right. Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex.1980). Further, when a statute confers jurisdiction on a particular court, it has conferred exclusive jurisdiction. Wichita County Tex. v. Hart, 917 S.W.2d 779, 782 (Tex.1996).

Section 524.041(b) provides that “[a] petition under Subsection (a) must be filed in a county court at law in the county in which the person was arrested or, if there is not a county court at law in the county, in the county court.” Tex. Transp. Code AnN. § 524.041(b) (Vernon 2004). Thus, the county court does not have jurisdiction to hear the case if the county has a county court at law; the county court at law’s jurisdiction is exclusive. See Hart, 917 S.W.2d at 782. When the county court is conferred with jurisdiction, section 524.041(b) provides that “if the county judge is not a licensed attorney, the county judge shall transfer the case to a district court for the county on the motion of either party or of the judge.” Tex. Transp. Code Ann. § 524.041(b) (Vernon 2004). Thus, jurisdiction is proper in either the county court or the district court upon motion of a party or the court’s own initiative. See id.; see also Hart, 917 S.W.2d at 782. Therefore, the preference to maintain the action in the county court or district court is a question of venue. See Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex.1994) (venue selection presupposes that the parties to the lawsuit have choices and preferences about where their case will be tried and that the courts have jurisdiction).

An objection to venue is made through filing a motion to transfer venue. See Tex.R.Civ. P. 86(1); Hart, 917 S.W.2d at 781. A motion to transfer venue is subject to the due-order-of-pleadings and must be filed before or concurrently with any other plea, pleading, or motion except a special appearance. See Tex.R. Civ. P. 86(1); First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 618 (Tex.App.-Corpus Christi 1993, writ denied). Appellant filed an answer prior to its motion to transfer venue; therefore, its motion to transfer venue was overruled by operation of law. Id. Accordingly, we conclude the county court correctly construed the statute and overrule appellant’s first issue.

2. ALJ’s Findings

In its second issue, appellant contends the county court erred by reversing the ALJ’s finding that it had proven the elements of its case. Appellant asserts there was a reasonable basis for the ALJ’s decision authorizing the suspension of ap-pellee’s license. We agree.

Standard of Review

Review of an ALJ’s suspension of driving privileges is made under a substantial-evidence standard. Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999); Tex. Dep’t of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex.App.-Corpus Christi 2002, pet. denied). Under a substantial-evidence review, the reviewing court cannot substitute its judgment for that of the ALJ and must affirm the ALJ’s decision if it is supported by more than a scintilla of evidence. Mireles, 9 S.W.3d at 131. Thus, the issue for the reviewing court is not whether the ALJ made a correct decision, but rather whether there is some reasonable basis in the record for the action taken by the ALJ. Id. We have noted that the burden for overturning an agency ruling is formidable. Tex. Dep’t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.App.-Corpus Christi 2000, no pet.). Thus, an administrative decision may be sustained even if the evidence preponderates against it. Mireles, 9 S.W.3d at 130.

Section 72⅛.0⅛2

Section 724.042 of the Texas Transportation Code provides that the issues to be considered at an administrative hearing are whether:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated ...;
(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of the officer.

Tex. TRAnsp. Code Ann. § 724.042 (Vernon 2004). If the ALJ finds in the affirmative on each issue, the license suspension is sustained. See id.

Analysis

Probable cause existed to stop appellee: he failed to signal a lane change and was speeding. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992) (a traffic violation constitutes probable cause to stop). Probable cause existed to believe appellee was operating a motor vehicle in a public place while intoxicated. Trooper Ireana Longoria testified that when she stopped appellee on U.S. 77 in Refugio County, she noticed appellee had a strong odor of an alcoholic beverage, bloodshot eyes, a red and relaxed face, and slightly slurred speech. See State v. Garrett, 22 S.W.3d 650, 654 (Tex.App.-Austin 2000, no pet.) (odor of alcohol, watery eyes, and unsteadiness are signs of intoxication). Trooper Longoria administered field sobriety tests, concluded appellee was intoxicated, and placed appellee under arrest. At the station, appellee refused to provide a breath specimen and signed a document entitled Statutory Warning evidencing his refusal.

We conclude that the decision by the ALJ to suspend appellee’s license was supported by more than a scintilla of evidence, and there was some reasonable basis in the record for the action taken by the ALJ. See Mireles, 9 S.W.3d at 131. Accordingly, we sustain appellant’s second issue.

III. Conclusion

We conclude the county court properly determined the complained-of portion of section 524.041(b) of the transportation code is subject to the due-order-of-pleadings, but conclude the county court committed reversible error when it overruled the ALJ’s decision. Accordingly, we reverse the ruling of the county court and enter judgment upholding the ALJ’s decision.

      . A motion to transfer venue is waived if not made by written motion filed prior to or concurrently with any other plea, pleading or motion except a special appearance. See Tex.R. Civ. P. 86(1); First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 618 (Tex.App.Corpus Christi 1993, writ denied).

      . Appellant contends that although the pleading was styled “Motion to Transfer Venue,” in substance it was a plea to jurisdiction.

      . We note that a parly must first file the action in the county court; however, upon filing, the party immediately has the right to have the matter transferred to the district court. See Tex Transp. Code Ann. § 524.041(b) (Vernon 2004).

      . In a cross-point, appellee asserts the "statutory warning was inadequate because it failed to inform him of the impact on his commercial driver’s license,” citing Tex. Dep’t of Pub. Safety v. Thomas, 985 S.W.2d 567 (Tex.App.Waco 1998, no pet.). However, Thomas was decided prior to the adoption of section 522.103 of the transportation code. See Tex. Transp. Code Ann § 522.103 (Vernon 2004) (effective September 1, 2001). Section 522.103 requires a statutory warning regarding the effect a refusal will have on a commercial drivers license only when the defendant is stopped driving a commercial vehicle. See Tex. Transp. Code Ann § 522.102(c) (Vernon 2004) (emphasis added). Appellee was stopped driving his personal vehicle, and thus, a warning regarding his commercial license is not required. See id. We overrule appellee's cross-point.

      . In a cross-point, appellee asserts that his refusal to provide a breath specimen should not be construed as a refusal for purposes of section 724.042(4), as he would have provided a blood sample. This argument is without merit as appellee signed the Statutory Warning outlining the effect refusing to provide the breath sample would have. We overrule ap-pellee's cross-point.


author: LEE ANN DAUPHINOT, Justice.

text:
    Lonnie Lee GARRETT, Appellant, v. The STATE of Texas, State.
    No. 2-03-306-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 6, 2005.
    Rehearing Overruled Jan. 27, 2005.

      Abe Factor, Factor, Campbell & Shepard, L.L.P., Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Michael Casillas, Mark Thiel-man & Michael S. Gordon, Asst. Criminal Dist. Atty’s, Fort Worth, for appellee.
    PANEL B: DAUPHINOT, HOLMAN, and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Lonnie Lee Garrett of aggravated assault of a public servant, and the trial court sentenced him to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice as a habitual offender. Appellant brings two points on appeal, arguing that the erroneous jury charge violated his right to due process and caused him to suffer egregious harm. Because we hold that the erroneous charge did not cause Appellant egregious harm or violate his right to due process, we affirm the trial court’s judgment.

BACKGROUND FACTS

At 1:40 a.m. in Arlington, Texas, Appellant drove on to a wet and slippery entrance ramp to Interstate 30, lost control of his pickup truck, and hit a firefighter, Kurt Kundert, who was putting cones and flares out on the road to signal that an accident had occurred. Kundert and Officer Brian Hamilton were replacing flares that had burned out and adding additional flares and cones because prior to Appellant’s loss of control, at least two other cars had slid through the area marked with the flares and cones.

When Appellant’s truck came to a stop, Hamilton pulled Appellant out of the vehicle. Hamilton smelled alcohol and asked Appellant to perform field sobriety tests. In Hamilton’s opinion, Appellant failed the tests, so he arrested him. After Appellant arrived at the police station, he again performed the field sobriety tests, which he passed. At the jail, Hamilton heard Appellant say that it was not his fault that he hit the firefighter because the firefighter ran out in front of him.

Appellant was charged with aggravated assault of a public servant with a deadly weapon causing serious bodily injury, aggravated assault of a public servant with a deadly weapon causing bodily injury, and intoxication assault. At trial, the State waived the intoxication assault charge. The trial court instructed the jury that “[t]he actor is presumed to have known 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.” After eight hours of deliberation spanning two days, the jury found Appellant guilty of aggravated assault of a public servant causing serious bodily injury, but there was no deadly weapon finding.

Legal Analysis

A. Standard of Review

Appellate review of error in a jury charge involves a two-step process. Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of the defendant,” which means no more than that there must be some harm to the accused from the error. In other words, a properly preserved error will call for reversal as long as the error is not harmless. On the other hand, unobjected to error in a jury charge does not require reversal unless we determine that an appellant suffered egregious harm, that is, such harm that the appellant did not have a fair and impartial trial. In cases involving unobjected to error, we apply the article 36.19 and Al-manza egregious harm analysis regardless of whether the appellant affirmatively accepts the charge of the court. In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

B. Presumptions

Appellant correctly argues that mandatory presumptions are unconstitutional because they relieve the State of its burden of proving guilt beyond a reasonable doubt. Consequently, as the State acknowledges, when the trial court includes any jury charge language regarding a legal presumption, the trial court must also submit the jury instruction required by section 2.05(2) of the Texas Penal Code. Section 2.05 provides:

When this code or another penal law establishes a presumption with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption and the specific element to which it applies, as follows:
(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and
(D)if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

The instruction converts what would otherwise be a mandatory presumption into a permissive presumption. Permissive presumptions do not lessen the State’s burden of proof. A permissive presumption permits, but does not require, the fact finder to find a presumed fact upon proof of the predicate fact. It places no burden on the accused to disprove the presumed fact.

C. Application

In the case now before this court, the trial court instructed the jury that “[t]he actor is presumed to have known 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.” The trial court did not, however, include a section 2.05 instruction. The charge was therefore clearly erroneous.

Although the trial court asked for objections to the proposed jury charge, Appellant’s trial counsel stated, “None from the Defense.” On appeal, however, Appellant argues that the erroneous jury instruction constituted denial of due process. Because Appellant did not object at trial to the error in the court’s charge, we must decide whether egregious harm occurred.

Appellant correctly points out that aggravated assault, ordinarily a second degree felony, is elevated to a first degree felony when it is committed against a person the defendant knows is a public servant while the public servant is lawfully discharging an official duty. Appellant’s knowledge that the complainant was a public servant lawfully discharging an official duty is the element to which the presumption relates. In addition to the presumption instruction, however, the jury charge correctly instructs the jury that this knowledge element is an element the State is required to prove. Additionally, as the State points out, the charge also instructs the jury that the prosecution has the duty of proving each and every element of the offense charged beyond a reasonable doubt. Failure to do so requires acquittal. Furthermore, the application paragraph includes the instruction that the jury must find that Appellant “knew that [the complainant] was a public servant in order to convict.”

Our review of the evidence reveals that Appellant, a short time after Complainant was struck by Appellant’s vehicle, referred to Complainant as a firefighter. Additionally, the record and statements of counsel do not indicate that Appellant’s awareness that Complainant was a firefighter was a contested issue. Nor does the record indicate that Appellant’s awareness that Complainant was engaged in the lawful discharge of his official duties was a contested issue at trial, although the record does not contain an admission that Appellant was aware of this circumstance. The record does reflect that Complainant was putting out cones and flares and dressed in distinctive clothing that Appellant recognized as that of a firefighter. It also reflects that two police cars and a fire engine, all with their emergency lights flashing, were visible at the accident scene at the time Appellant drove into it.

Based upon our review of the entire record, we conclude that the omission of the section 2.05 instruction, although error, did not cause Appellant egregious harm. Appellant also argues that the error constituted denial of due process, but in light of the record before us, we similarly hold that the error did not constitute a denial of due process. We overrule Appellant’s two points on appeal.

Conclusion

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

      . Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994).

      . Id.

      . Id. at 731-32.

      . Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); see also Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).

      . Almanza, 686 S.W.2d at 171.

      . Id.; see Tex.Code Crim. Proc. Ann. art. 36.19; Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

      . Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004).

      . Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000).

      . Francis v. Franklin, 471 U.S. 307, 317, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979).

      . Tex. Penal Code Ann. § 2.05(2) (Vernon 2003).

      . Id. § 2.05.

      . Willis v. State, 790 S.W.2d 307, 310 (Tex.Crim.App.1990).

      . Id.

      . Id.

      . Bluitt, 137 S.W.3d at 53; Almanza, 686 S.W.2d at 171; see Tex.Code Crim. Proc. Ann. art. 36.19; Hutch, 922 S.W.2d at 171.

      . Tex. Penal Code Ann. § 22.02(a)(1), (b)(1) (Vernon Supp.2004-05).


author: Justice FITZGERALD.

text:
    Don FREEMAN, Appellant, v. WIRECUT E.D.M., INC., Appellee.
    No. 05-04-00440-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 16, 2005.

      Grant Hugh Brenna, Assistant District Attorney, Dallas, for Appellant.
    Randall Yazbeck, Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Deputy Constable Don Freeman brings this interlocutory appeal challenging portions of the trial court’s order denying certain of his pleas to the jurisdiction and motions for summary judgment in this case. In four issues, Freeman challenges the trial court’s jurisdiction over the subject matter of the suit and argues he is immune from liability for claims brought against him. We agree with the trial court on all grounds appealed, and we affirm its order.

Background

Appellee Wirecut E.D.M., Inc. leased a Robofil Model 6020 Wire E.D.M. machine (the “Machine”) and came to be in default on the lease. The lessor obtained a writ of sequestration in the 116th Judicial District Court. Freeman was assigned to enforce the writ, and he did so with the help of Moving Services Company. According to Wirecut, at the time of the seizure of the Machine, Wirecut informed Freeman of the delicate nature of the Machine and gave him information on how to move, transport, and store the Machine safely, but Freeman and Moving Services did not follow those instructions. When Wirecut recovered the Machine, the Machine was damaged.

Wirecut sued Freeman and the moving company for damage to the Machine. The case was assigned to the 193rd Judicial District Court. The live petition pleaded a claim for negligence in executing the writ. It also pleaded two claims related to the care of the property after execution of the writ, citing sections 34.061 and 62.061 of the Texas Civil Practice and Remedies Code. Freeman answered and filed a series of pleas to the jurisdiction, motions for summary judgment, and motions to dismiss and/or sever. The trial court granted Freeman summary judgment on immunity grounds on the negligent-execution claim. However, the trial court denied the remainder of the pleas and motions.

In this Court, Freeman challenges the trial court’s rulings related to both of Wir-ecut’s statutory claims. As to the section 34.061 claim, Freeman argues the trial court had no jurisdiction over the subject matter of the suit. And as to the section 62.061 claim, Freeman argues he is immune. Because this is an interlocutory appeal, we address these jurisdictional and immunity issues without regard to the merits of Wirecut’s claims.

Standards op Review

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

The standard of review in a traditional summary judgment proceeding is well established. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant moving for summary judgment on the basis of an affirmative defense must plead and conclusively establish each essential element of that defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979).

Subject Matter Jurisdiction

Freeman’s first issue challenges the trial court’s refusal of his plea to the jurisdiction related to section 34.061 of the civil practice and remedies code. Section 34.061 is titled “Duty Toward Seized Personalty; Liability,” and it states in relevant part:

If an injury or loss to an interested party results from the negligence of the officer, the officer and his sureties are liable for ... the amount of the injury sustained, plus 10 percent of that value or amount. The total amount is recoverable on motion of the injured party filed with the corni that issued the writ, following three days’ notice.

Tex. Crv. Prac. & Rem.Code Ann. § 34.061(b) (Vernon 1997) (emphasis added).

Freeman argues that if an officer is charged with negligently injuring seized property, any claim against him can only be brought in the identical district court that issued the writ allowing the seizure. In this instance, Freeman argues that only the 116th judicial district had jurisdiction to hear Wirecut’s claims under section 34.061, because the 116th was where the sequestration writ was issued. Freeman’s sole authority for this proposition is the above-emphasized statutory language. We do not read the statute so narrowly.

A Texas district court is a court of general jurisdiction, and all claims are presumed to fall within the jurisdiction of the district court unless the legislature has provided that they must be heard elsewhere. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). Thus, we presume the district court has subject matter jurisdiction unless a showing can be made to the contrary. Id. We disagree with Freeman that, in this case, the statute’s grant of a right to recover in “the court that issued the writ” somehow limits the subject matter jurisdiction of all Dallas County district courts except the 116th. “[Jjurisdictional statutes speak to the court’s power rather than to the parties’ rights or obligations.” Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002). We read section 34.061 to speak specifically to a party’s rights, not to a court’s power. Accordingly, we conclude section 34.061 does not limit the jurisdiction of any district court of Dallas County with general jurisdiction.

Moreover, to the extent the statute speaks to “a motion filed with the court that issued the writ,” noncompliance with this procedure would not affect the jurisdiction of another district court. Our supreme court has recognized that not every statutory prerequisite to suit is a jurisdictional requirement. See Dubai Petroleum, 12 S.W.3d at 76. When a statutory prerequisite makes no substantive change in the court’s inherent power, it will not be treated as jurisdictional. See, e.g., Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 473 (Tex.App.-Austin 2002, no pet.) (where statute’s requirement affected only venue, it was not jurisdictional).

We also reject Freeman’s argument that the 116th court “has the right to preside over any disputes arising out of the execution of its own writ of sequestration.” Wirecut’s suit does not include a challenge to the writ in any form. In this case, the trial court that had issued the writ might have had more familiarity with the facts underlying the parties’ dispute. The parties could have asked for a transfer to that issuing court; the record indicates neither party did so. Regardless, familiarity with a case is not the same as exclusive jurisdiction over that case.

We conclude Freeman’s jurisdictional challenge to the 193rd Judicial District Court is without merit.

Next, Freeman points out that the title of chapter 34 of the civil practice and remedies code is “Execution on Judgments.” He argues that, because the proceeding at issue was not an execution on a judgment, the sections within that chapter are inapplicable to this case, so that “even if Wirecut had properly filed this section 34.061 action in the 116th, there would be no remedy.” Initially, we note our legislature’s directive that “the heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.” Tex. Gov’t Code Ann. § 311.024 (Vernon 1998). Moreover, we conclude Freeman’s argument here is not a jurisdictional one. The argument does not address the court’s authority to hear Freeman’s section 34.061 claim. Instead, it merely speaks to whether or not this plaintiff has a claim under this statute. No possible answer to that question will rob the trial court of jurisdiction and require dismissal of Wirecut’s suit. See Smith v. Univ. of Tex. Southwestern Med. Ctr. of Dallas, 101 S.W.3d 185, 188 (Tex.App.Dallas 2003, no pet.) (“Dismissing a cause of action for lack of subject-matter jurisdiction is proper only when it is impossible for the plaintiffs petition to confer jurisdiction on the trial court.”). Accordingly, the question is not properly before this Court on interlocutory appeal.

We resolve Freeman’s first issue against him.

Immunity

Freeman’s second, third, and fourth issues complain of the trial court's failure to find as a matter of law that he was immune from liability for any violation of section 62.061. That section states:

The officer is hable for injuries to the sequestered property resulting from his neglect or mismanagement or from the neglect or mismanagement of a person to whom he entrusts the property.

Tex. Civ. PRAC. & Rem.Code § 62.061(c). Freeman raises three arguments here, averring his immunity is sovereign, judicial, and official.

Sovereign Immunity

First, Freeman posits that, when he acts in the course and scope of his employment, he is entitled to the same sovereign immunity as his employer, Dallas County. Freeman asks this Court to look at the legal theories under which his summary judgment motion succeeded. Under those theories — official immunity, derived judicial immunity, and statutory immunity pursuant to section 7.003 of the civil practice and remedies code — the trial court necessarily found that Freeman was acting within the scope of his authority while executing the sequestration writ. Freeman argues that this finding is now the law of the case and that the finding, in effect, transforms the lawsuit. Wirecut sued Freeman in his individual capacity. But according to Freeman, the trial court’s implicit scope-of-authority finding essentially transforms the suit into one against Freeman in his official capacity, which in turn transforms the suit into one against Dallas County. Thus, according to Freeman, because the County would have sovereign immunity, he should as well.

There are a number of fundamental errors in this legal reasoning: at this juncture, we address only two. At the outset, the trial court’s implicit finding of scope of authority pertained only to Freeman’s conduct while executing the writ. The claims before us relate to his conduct in safeguarding the sequestered property after the writ was executed. These are not equivalent factual issues so that we may assume Freeman was for all purposes, at all times, acting within the course and scope of his authority.

Moreover, if the trial court’s finding were relevant to these claims, it would speak only to whether — at the time of the allegedly negligent conduct — Freeman was discharging the duties generally assigned to him. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004). That issue is relevant to whether Freeman is entitled to the qualified immunities that were at issue in the granted summary judgment motions. See, e.g., id. (official immunity). It is a different issue from the capacity in which Freeman was sued, i.e., in his individual or official capacity. This second issue relates to who is liable for the prohibited conduct of negligently failing to safeguard sequestered property. The statute tells us “the officer” is hable. See Tex. Civ. Prac. & Rem. Code § 62.061(c). The statute does not make the officer’s employer liable. Thus, when making a claim under this statute, the property owner correctly brings the suit against the officer in his individual capacity because he is the proper defendant. Freeman conflates the question “who can be sued for the prohibited conduct?” with one element of the question “who is entitled to immunity for different prohibited conduct?”. The questions are not the same, and answering one question does not suffice to answer the, other.

The inevitable result of Freeman’s understanding of sovereign immunity would be a system in which any governmental employee who committed a wrongful act while in the course and scope of his authority would be absolutely immune. That is not, and cannot be, the law. Sovereign immunity by its very nature attaches only to a governmental entity, not to individuals employed by that entity. See DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995) (distinguishing between sovereign immunity, which protects governmental entities, and official immunity, which protects individual officials). We conclude Freeman’s claim of sovereign immunity fails completely. Accordingly, the trial court correctly denied Freeman’s plea to the jurisdiction to the extent it relied upon sovereign immunity.

We decide against Freeman on his second issue. .

Derived Judicial Immunity

In Texas, a judge acting in his or her official judicial capacity is absolutely immune from liability for judicial acts performed within the scope of jurisdiction. See Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex.2002) (citing Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)). When a judge delegates another person to perform services for the court, or when a person otherwise serves as an officer of the court, the judge’s immunity “follows” that delegation or court employment. Halsey, 87 S.W.3d at 554. The person acting in such a capacity also enjoys an absolute immunity, which we call derived judicial immunity. Id.

Freeman moved for summary judgment arguing he is entitled to derived judicial immunity from the liability created by section 62.061. Freeman relies primarily upon two cases for the proposition that he is entitled, as a deputy constable executing writs, to derived judicial immunity. One of the cases is not helpful to this particular analysis: Bowles v. Yeganeh, 84 S.W.3d 252 (Tex.App.-Dallas 2002, no pet.) is resolved'on the issue of official immunity, and the court does not reach the issue of judicial immunity. The second case, Merritt v. Harris County, 775 S.W.2d 17 (Tex.App.-Houston [14th Dist.] 1989, writ denied), does address the liability of constables charged with executing writs. Merritt states that the constables:

are conferred with judicial immunity, subject to liability under § 34.061, Tex. Civ. PRAC. Rem.Code AnN. (Vernon 1986), when executing court writs so long as they in good faith and diligently execute the writ as provided by law and the Rules of Civil Procedure. Tex. Civ. PRAC. Rem.Code Am § 7.003 (Vernon 1986). § 34.061 places a duty upon the constables to keep securely all personal property which has been levied upon by the officers.

Id. at 23. This brief quotation establishes at least three propositions: (1) constables have judicial immunity while executing writs; (2) section 7.003 qualifies that immunity by adding the requirements of good faith and diligence in the execution; and (3) section 34.061 is a statutory exception to the immunity. See id. The first two propositions are not relevant to this appeal: the conduct at issue here involves safeguarding sequestered property after the writ is executed, not the execution itself. Accordingly, the qualifications to immunity established by section 7.003 are not applicable in this case. See Tex. Civ. Peac. & Rem.Code § 7.003(a) (officer not liable for damages “resulting from the execution of a writ”). Judicial immunity, if it applies to section 62.061 claims, remains absolute.

However, the third Merritt proposition — that the statutory duty embodied in section 34.061 is an exception to judicial immunity — is helpful here as an analogy. Indeed, the only way to give meaning to the statutory duty embodied in section 62.061 is if it too is an exception to judicial immunity. The liability created by section 62.061 would be meaningless if all constables required to safeguard sequestered property were absolutely immune from that liability. We may not read a statute so as to render its language meaningless. On the contrary, we must presume that the legislature, by enacting the statute, intended “a result feasible of execution.” Tex. Gov’t Code Ann. § 311.021(4) (Vernon 1998); see also In re Missouri Pacific R. Co., 998 S.W.2d 212, 216 (Tex.1999). Accordingly, we conclude section 62.061 — like section 34.061 — is a legislatively created exception to judicial immunity. See Merritt, 775 S.W.2d at 23 (section 34.061 is exception to judicial immunity).

We conclude derived judicial immunity does not apply to a section 62.061 defendant. We decide Freeman’s third issue against him.

Official Immunity

Finally, Freeman moved for summary judgment arguing that he is entitled to official immunity from Wireeut’s section 62.061 claims. The law provides that a qualified immunity inures to all governmental officials or employees who perform discretionary functions in good faith and within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). This qualified immunity has been applied to individuals involved in the execution of writs. See Bowles, 84 S.W.3d at 254 (sheriff); see also Tex. Civ. Prac. & Rem.Code § 7.003(a) (qualified statutory immunity for officer executing writ). Indeed, as has been discussed, Freeman prevailed in the trial court on immunity grounds for Wirecut’s claims against him for any damages associated with the actual execution of the writs. Although Wirecut argues official immunity should not apply in this case, we find no principled reason to except a section 62.061 defendant from the reach of official immunity.

Having concluded that official immunity extends to a section 62.061 defendant, we next ask whether Freeman established as a matter of law that his conduct entitled him to the benefits of official immunity. Official immunity protects public officials from suit arising from performance of their (1) discretionary duties (2) performed in good faith and (3) within the scope of their authority. Ballantyne, 144 S.W.3d at 422. In this case, the only element contested during the summary judgment procedure was whether Freeman acted in good faith in safeguarding the Machine after it was sequestered. To determine whether a public official acted in good faith we apply the test adopted in Chambers and ask whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. Id. at 426. This test of good faith does not inquire into what a reasonable person would have done, but into what a reasonable person could have believed. Id. In making this inquiry, we rely solely on objective evidence. Id. at 428.

Freeman attempted to establish good faith as a matter of law through his own affidavit testimony and through the affidavits of Constable Mike Dupree and Chief Deputy Constable Robert McIntyre. Freeman described his version of the facts surrounding the sequestration of the Machine, concluding “I believe in good faith that any reasonable person in the same position could have thought the facts were such that they justified my actions.” Du-pree and McIntyre, in identical language, state they are “familiar with the facts of July 2001 as they relate to this lawsuit.” Then each goes on to conclude that “[u]pon reviewing the facts, I believe that any reasonable person in Freeman’s position could have thought the facts were such that they justified his actions.” These conclusions by the constables speak appropriately to the Chambers reasonable-belief standard of good faith.

However, the constables can establish good faith through their own testimony only if that testimony is “clear, positive, direct, otherwise credible, free from contradiction, and readily controvertible.” See Bowles, 84 S.W.3d at 254. In other words, Freeman cannot successfully establish good faith as a matter of law if significant relevant facts on which he depends are controverted. We conclude significant facts on which the constables’ affidavits rely to reach their good-faith conclusions are in fact controverted. Freeman testified that Wirecut’s employees:

refused to answer [the mover’s] repeated request for technical information and also refused to tender the manufacturer’s guide book to him. They also refused my requests for assistance in moving the equipment.

Both Dupree and McIntyre testified that the Wirecut employees “were combative and hostile, and refused to provide any technical instructions.” But Wirecut offered affidavit testimony contradicting this version of the facts underlying the damage to the Machine. Kenneth Hill, president of Wirecut, testified he personally rode with Freeman in Freeman’s vehicle to the location of the Machine and explained to Freeman the delicate nature of the Machine and the need for him to take care in moving it. Alain Michout, the Wirecut employee who was served with the writ by Freeman, testified that he personally gave Freeman the manual on how to prepare the Machine for a move and how to move it. He further testified that he told Freeman the movers did not have the right equipment to move the Machine. He stated that neither Freeman nor the movers used the manual or followed the instructions in the manual in preparing or moving the Machine. Michout’s affidavit includes specific descriptions of ways in which the Machine was handled, moved, and stored that were contrary to the manual’s directives and that would have caused damage to the Machine.

We conclude a genuine issue of material fact exists as to Freeman’s good faith in safeguarding the Machine. The trial court did not err in denying summary judgment on the ground of official immunity for claims brought by Wirecut under section 62.061. We decide Freeman’s final issue against him.

Conclusion

We have resolved each of Freeman’s issues against him. We affirm the trial court’s order.

      . For example, the legislature has created certain criminal district courts that do not possess the civil jurisdiction of other district courts. See, e.g., Tex Gov't Code Ann. § 24.910 (Vernon 2004) (certain "criminal district courts have jurisdiction of criminal cases within the jurisdiction of a district court.”).
      The legislature has also created juvenile courts pursuant to its constitutional power to create "specialized courts.” See, e.g., In Matter of G.C., Jr., 980 S.W.2d 908, 910 (Tex.App.-Corpus Christi 1998, pet. denied) (citing Tex. Const., art. V, § 1). These juvenile courts are separate from the district courts specifically referred to in article V, section 7 of the Texas Constitution. Id. But a district court may be designated a juvenile court. Tex. Gov’t Code § 23.001. Such a designation would yield "a court which, although presided over by a district judge, has substantial attributes wholly at variance with some that are recognized as normally belonging to a district court.” Matter of G.C., Jr., 980 S.W.2d at 910.

      . Neither Dupree nor McIntyre were present at the time the writ was executed or at the time the Machine was taken into custody and moved. They do not explain the source of their information concerning the "facts of July 2001 as they relate to this lawsuit.” Because their affidavits condone the actions of Freeman, we assume their understanding of the “facts of July 2001 as they relate to this lawsuit” comports with Freeman’s understanding of those facts, as expressed in his own affidavit testimony.