author: Justice YÁÑEZ.

text:
    HAGGAR CLOTHING COMPANY a/k/a Haggar Apparel Company, Appellant, v. Altagracia HERNANDEZ, Appellee.
    No. 13-01-009-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 21, 2003.

      Jorge C. Rangel, Rangel Law Firm, Corpus Christi, Neil E. Norquest, Chris A. Brisack, Norquest <& Brisack, LLP, McAl-len, for appellant.
    John G. Escamilla, Watts Law Firm, L.L.P., McAllen, Aaron Pena, Jr., Aaron Pena, Jr. & Associates, Edinburg, for ap-pellee.
    Before Justices YÁÑEZ, CASTILLO, and DORSEY.

      . Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

   MEMORANDUM OPINION

Opinion by

Justice YÁÑEZ.

Appellant, Haggar Clothing Company a/k/a Haggar Apparel Company (“Hag-gar”), appeals a jury verdict finding that it discharged appellee, Altagracia Hernandez, in retaliation for filing a worker’s compensation claim. See Tex. Lab.Code Ann. § 451.001 (Vernon 1996). In seven issues, Haggar challenges the legal and factual sufficiency of the evidence supporting the jury’s findings of: (1) retaliation; (2) actual malice; (3) punitive damages in the amount of $1,400,000; and (4) actual damages. Haggar also contends: (1) the award of punitive damages is grossly excessive in violation of the excessive fines and due process clauses of the U.S. Constitution (issue four); (2) the trial court erred in admitting certain “other incidents” evidence (issue six); and (3) the jury charge contained errors which entitle Haggar to a new trial. We affirm the trial court’s judgment.

The facts of this case are known by the parties, and we do not recite them here. Furthermore, because all issues are well-settled, we issue this memorandum opinion. See Tex.R.App. P. 47.4

Standard of Review

When, as here, the party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is no more than a scintilla of evidence supporting it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). If there is more than a scintilla of evidence to support the finding, then the no-evidence challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex.App.-Corpus Christi 2000, no pet.). If the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is some evidence. See Kindred v. Con/Chem, Inc. 650 S.W.2d 61, 63 (Tex.1983); Hines, 28 S.W.3d at 701. When reviewing a no-evidence point, we consider only the evidence supporting the finding and disregard all evidence to the contrary. State Farm, Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. See Kindred, 650 S.W.2d at 63; Hines, 28 S.W.3d at 701.

In reviewing factual sufficiency issues challenging a jury verdict, we consider and weigh all of the evidence, not just the evidence that supports the verdict. Krishnan v. Ramirez, 42 S.W.3d 205, 211 (Tex.App.-Corpus Christi 2001, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam)). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Krishnan, 42 S.W.3d at 212. The jury, as fact finder, is the judge of the credibility of witnesses and weight to be accorded their testimony. Krishnan, 42 S.W.3d at 212. Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Id. The amount of evidence necessary to affirm a judgment is far less than that which is necessary to reverse a judgment. Id. It is particularly within the province of the jury to resolve matters which are necessarily speculative and not subject to precise mathematical calculations, such as physical pain and mental anguish. GreenPoint Credit Corp. v. Perez, 75 S.W.3d 40, 45 (Tex.App.-San Antonio 2002, pet. granted, judgm’t vacated w.r.m.); White v. Sullins, 917 S.W.2d 158, 162(Tex.App.-Beaumont 1996, writ denied); Pipgras v. Hart, 832 S.W.2d 360, 365-66 (Tex.App.-Fort Worth 1992, writ denied). When there is conflicting evidence, the jury’s verdict is generally regarded as conclusive. Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.).

When both legal and factual sufficiency issues are raised, we are required to rule on the legal insufficiency issue first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d. 400, 401 (Tex.1981). If we find some evidence to support the verdict, we will then review the claim of factually insufficient evidence. Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

Applicable Law

Section 451.001 of the labor code provides, in pertinent part:

A person may not discharge or in any other manner discriminate against an employee because the employee has:
(1) filed a workers’ compensation claim in good faith;

Tex. LaboR Code Ann. § 451.001 (Vernon 1996).

An employee has the burden of demonstrating a causal link between the discharge and the filing of a workers’ compensation claim. Garcia v. Allen, 28 S.W.3d 587, 600 (Tex.App.-Corpus Christi 2000, pet. denied). In order to recover for retaliatory discharge, an employee must prove that but for the filing of a workers’ compensation claim, the discharge would not have occurred when it did. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). An employee need not show he was fired solely because he filed a workers’ compensation claim; however, he must establish that “but for” the filing of the claim, the discharge would not have occurred when it did. Cazarez, 937 S.W.2d at 450. This causal connection is an element of the employee’s prima facie case and may be established by direct or circumstantial evidence. Allen, 28 S.W.3d at 600. Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policy; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Id.; see Cazarez, 937 S.W.2d at 451.

Legal and Factual Sufficiency

In its first issue, Haggar contends there is no evidence or insufficient evidence that it terminated Hernandez in retaliation for filing a worker’s compensation claim. Haggar argues Hernandez was terminated pursuant to a non-discriminatory and uniformly enforced absence-control policy.

Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge. Cazarez, 937 S.W.2d at 451. An employer who terminates an employee for violating such a rule cannot be hable for retaliatory discharge so long as the rule is uniformly enforced. Id.

We have reviewed the entire sixteen-volume reporter’s record in this ease. Having conducted a thorough review of the evidence and considering our standard of review, we conclude there is legally and factually sufficient evidence to support the jury’s finding of retaliation. We overrule Haggar’s first issue.

Malice

In its second and third issues, Hag-gar challenges the legal and factual sufficiency of the evidence supporting the jury’s finding of malice and the jury’s assessment of punitive damages in the amount of $1,400,000. In its fourth issue, Haggar contends the punitive damage award is grossly excessive.

In order to recover exemplary damages in a workers’ compensation retaliation case, a party must prove the employer acted with actual malice, which requires proof of ill will, spite, evil motive, or a specific intent to cause injury to the employee. Zimlich, 29 S.W.3d at 71 (citing Cazarez, 937 S.W.2d at 454) (emphasis added). The jury found that Haggar acted with malice in discharging Hernandez and awarded her $1,400,000 in punitive damages.

Haggar argues that because Hernandez’s claim is restricted to retaliatory discharge, the malice inquiry is similarly restricted, as a matter of law, to the discharge and the state of mind of the person who made the termination decision. In support of its argument, Haggar cites Zimlich, 29 S.W.3d at 70-71.

We find the facts in Zimlich distinguishable. In Zimlich, the plaintiff claimed he was discriminated against in violation of the Texas Whistleblower Act because he reported a violation of law to the appropriate authorities. Id. at 67-68. Zimlich identified three specific adverse employment decisions as evidence of the discrimination. Id. at 68. Zimlich argued that evidence of the discriminatory motives of two other employees should be considered, even though he had not alleged any involvement by those employees in the alleged adverse employment decisions. Id. at 68-70. The Texas Supreme Court declined to consider whether liability for discrimination can be based on a “conduit theory,” in which one supervisor makes a recommendation regarding an employee to another innocent supervisor, who acts on that recommendation without exercising any independent judgment. Id. at 70. The Zimlich court noted that it was unnecessary to consider such a “conduit” theory because there was no evidence that the decision-maker identified by Zimlich was the conduit for the bad motives of the two employees. Id. at 70-71. We have found no Texas case applying Zimlich in the restrictive manner that Haggar urges us to adopt here. Accordingly, we decline to do so.

After thoroughly reviewing the evidence, we hold the evidence is legally and factually sufficient to support the jury’s finding of actual malice. See Whole Foods Mkt. Southwest L.P. v. Tijerina, 979 S.W.2d 768, 780 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (economic incentive, combined with badgering of employee and testimony that money was a factor in terminating employee sufficient to establish malice by employer); Lubbock Cty. v. Strube, 953 S.W.2d 847, 858-60 (Tex.App.Austin 1997, writ denied) (evidence that supervisors ignored employee’s injuries, gave her work assignments which subjected her to harassment, and threatened to fire her were sufficient to support finding of malice). We overrule Haggar’s second issue.

Punitive Damages

In its fourth issue, Haggar argues the punitive damage award of $1,400,000 is grossly excessive and in violation of the excessive fines and due process clauses of the U.S. Constitution. It also contends, in its third issue, that the damage award was not supported by legally or factually sufficient evidence.

Where, as here, the constitutionality of a punitive damage award is challenged on the ground that the amount of punitive damages is excessive under the standards set forth in BMW of N. Am. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), appellate courts must conduct a de novo review of the trial court’s application of the Gore standards to the jury’s award. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585 (2003) (citing Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 431, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)). To determine whether a punitive damage award is unconstitutionally excessive, the Texas Supreme Court has adopted the guidelines set forth by the United States Supreme Court in Gore, including: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between actual and punitive damages; and (3) a comparison of the punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 45 (Tex.1998). Under Gore, even if an assessment of punitive damages is not deemed excessive under governing state law, it may violate a party’s substantive due process right to protection from “grossly excessive” punitive damages awards. See id. A claim that a punitive damage award is grossly excessive to the extent that it violates a party’s substantive due process rights involves a question of law, not a factual sufficiency review of the evidence. See id.

As noted, Haggar also challenges the legal and factual sufficiency of the evidence supporting the award of punitive damages. Texas appellate courts review exemplary damages awards to ensure that they are reasonable in their amount and rational in light of their purpose to punish malicious conduct and deter its repetition. Strube, 953 S.W.2d at 847 (citing City of San Antonio v. Heim, 932 S.W.2d 287, 294 (Tex.App.-Austin 1996, no writ)). We may reverse an exemplary damages award or suggest a remittitur only if we determine that the evidence supporting the award is so factually insufficient or the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. In our assessment, we consider the following factors: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; and (5) the extent to which such conduct offends a public sense of justice and propriety. Id. (citing Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981)). When reviewing an exemplary damages verdict for excessiveness, we must detail the relevant evidence and explain why, in light of the Kraus factors, the evidence either supports or does not support the exemplary damages award. Id.; see Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995); see also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994).

Here, the jury was properly instructed on the Kraus factors. See Kraus, 616 S.W.2d at 910. Thus, we review the relevant evidence, in light of the Kraus factors and the three guidelines required by Gore. See Apache Corp. v. Moore, 960 S.W.2d 746, 749 (Tex.App.-Amarillo 1997, pet. denied) (noting first four Kraus factors are addressed by first Gore guideline and deeming Kraus factors to be continuing considerations within framework of Gore guidelines).

Reprehensibility

In Campbell, the United States Supreme Court recently noted:

“The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, supra, at 575, 116 S.Ct. 1589. We have instructed courts to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. 517 U.S. at 576-577, 116 S.Ct. 1589. The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect. It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence. Id. at 575,116 S.Ct. 1589.

Campbell, 538 U.S. at 419-20, 123 S.Ct. at 1521.

Hernandez testified that she suffered a serious injury when she was struck by a large table carried by a co-worker. She testified that although she was unable to walk and wanted to go home, her supervisor, Dora Lozano, told her to remain at work and try and “put up with [the pain]” because reporting a lost-time accident would disqualify the co-workers in Hernandez’s unit from receiving a cash bonus based on Haggar’s safety incentive program. According to Hernandez, her coworkers told her to go see a doctor, but her supervisor told her to wait and see whether her condition improved the next day. After returning to work the following day, she left work to seek treatment from a chiropractor. When Lozano and Angel Ritchey, the plant manager, learned of her visit to the chiropractor, they were angry and upset and told Hernandez that Haggar would not pay for the treatment. Hernandez testified that she did not see a doctor right away because “they would not give me the opportunity to go.”

Lozano denied that she would have told Hernandez to postpone seeking treatment for the purpose of ensuring the workers’ receipt of the safety bonus. Lozano also testified that Haggar employees could seek treatment from a chiropractor if they wished and that Haggar did not require its employees to see a “company doctor.”

Ritchey testified that she did not remember Hernandez’s injury, but denied telling Hernandez that Haggar would not pay for chiropractic treatment. Ritchey testified that although she did not recall the events, the records reflect that she fired Hernandez because of Hernandez’s failure to return to work from a leave of absence.

Dr. Roger Heredia, Hernandez’s family doctor who began treating her work-related injury several weeks after it occurred, testified that her medical records show Hernandez said she lost consciousness when hit by the table. He testified that a person who loses consciousness should receive immediate medical attention. Dr. Heredia testified regarding Haggar’s practice of having a “company nurse” present during medical exams of employees seeking treatment for work-related injuries. Dr. Heredia testified as follows:

Q [Hernandez’s counsel]: Did the company nurse ever stop you to — was there ever a time when you had decided on a course of treatment for a person and the company nurse jumped in and decided, well, maybe that’s not the course of treatment that we would like for you to have, Doctor?
A [Heredia]: Yes, sir.
Q: How often did that happen?
A: I couldn’t count. Maybe about three or four.
Q: And what-describe that to us.
A: Well, it was like, for example, if a patient were injured and I thought that the patient might need a day or two off, they would say — or the nurse would say, Well, we’ll send them back to the plant and we’ll have them sitting down, even laying down in the room. And we just want to have them there.
Q: Did he tell you why they just wanted to have him there?
A: No.
Q: Was your recommendation that the person should stay at home?
A: Yes. But I said, Well, okay, I guess we can try that.

Dr. Heredia testified that he complained to Haggar about the practice of the company nurse’s interference with his treatment of patients. Haggar responded by showing the doctor and his partners the room at the plant with a bed where injured employees could he down. Dr. Heredia testified that if Hernandez had received proper treatment earlier and had been given time to recover, she may have been able to return to work. He further testified that in his view, Haggar’s treatment of Hernandez was “a bit unfair.”

Alma Palomares, a line supervisor who worked at the Haggar plant for fifteen years, including the time that Hernandez was also employed there, testified that during her employment at Haggar, she saw injured workers being mistreated. She testified that production at the plant consisted of assembly-line “units,” and that injured workers were being re-injured because they were put back to work when they were physically unable to meet the demands made by the company. She testified that such re-injuries were common knowledge among supervisory personnel. On cross-examination, Palomares admitted she was fired for “over counting,” which Haggar considered “like stealing.”

Joaquin Pimentel, who served as Hag-gar’s occupational nurse during and following Hernandez’s leave of absence, testified by deposition that if employees lost time due to an injury, “it pissed off the managers.” According to Pimentel, many of the Haggar managers told him that each lost-time accident resulted in a $30,000 loss to the plant’s budget. Pimentel testified that if an employee was on medical leave due to an injury, Haggar “really [didn’t] want” the employee back. Pimentel testified, however, that although the lost-time program created “pressure” to return employees to work, a doctor always made the final decision regarding an employee’s restrictions or ability to return to work.

Mary Jane Ballew Patrick, the Haggar nurse on duty the day Hernandez was injured, testified that she saw Hernandez a short time after the injury, and that Hernandez stayed at the nurse’s station until the end of the day. She testified that because she does not speak Spanish, she communicated with Hernandez through Dora Lozano. Patrick denied that she ever saw anyone at Haggar get upset because of a lost-time accident.

We find that the evidence establishes that the harm caused to Hernandez was physical; that Haggar’s conduct evinced an indifference or reckless disregard for Hernandez’s health and safety; that she was financially vulnerable; and that the conduct was not an isolated incident, but part of a pattern of conduct involving similarly situated employees. See Campbell, 538 U.S. at 419-20, 123 S.Ct. at 1521. We hold that the reprehensibility of Haggar’s conduct supports the punitive damages award.

Ratio

The second factor that must be examined is the ratio of compensatory to punitive damages. Although the U.S. Supreme Court recently “decline[d] again to impose a bright-line ratio which a punitive damages award cannot exceed,” it noted that “few awards exceeding a single-digit ratio” will satisfy due process. Id. at 1524. Here, the jury awarded Hernandez $210,000.00 in total compensatory damages, and $1,400,000.00 in punitive damages, yielding a ratio of punitive to compensatory damages of approximately 6.66. We conclude that the ratio between compensatory and punitive damages in this case is within constitutional limits. See TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 462, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (indicating that a 10 to 1 ratio would not be unconstitutional); see also Baribeau v. Gustafson, 107 S.W.3d 52, 64, 2003 Tex.App. LEXIS 2106, at *23-*24 (Tex.App.-San Antonio, no pet. h.)(designated for publication) (finding $200,000 punitive damage award proportional to $500 in compensatory damages where reducing amount of punitive damages would not punish or deter egregious conduct).

Sanctions for Comparable Misconduct

The third factor requires a comparison of the punitive damages to other civil or criminal penalties that could be imposed for comparable misconduct. Judicial decisions at the time of the misconduct are relevant under Gore’s third prong to ascertain whether a defendant had notice that its misconduct could subject it to a large punitive damages award. Malone, 972 S.W.2d at 47. Thus, the question is whether Haggar had reasonable notice that its conduct could result in substantial punishment in the form of punitive damages. See id.; see also N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 920 (Tex.App.-Corpus Christi 1999, pet. denied) (question under third standard is whether defendant had reasonable notice that its conduct could result in punitive damages). Section 451.002 permits an employee to recover “reasonable damages” incurred as a result of the violation of section 451.001, and that term has been interpreted to include punitive damages. See Tex. LaboR Code Ann. § 451.002 (1996); see also Whole Foods, 979 S.W.2d at 781 (citing Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987)). We hold that Haggar had notice that its misconduct could subject it to a large punitive damages award. See Malone, 972 S.W.2d at 47.

Haggar cites Campbell, 538 U.S. at 422-24, 123 S.Ct at 1523, in support of its argument that the trial court impermissi-bly allowed the jury to consider evidence involving other Haggar employees in the award of punitive damages. Haggar argues that in Campbell, the U.S. Supreme Court held the consideration of such “other acts” evidence in the calculation of punitive damages to be a violation of due process. See id.

In Campbell, the Supreme Court held that a punitive damages award of $145 million, where full compensatory damages were $ 1 million, was excessive and violated the due process clause of the Fourteenth Amendment. Id. at 1526. Campbell involved whether evidence of State Farm’s national scheme to meet corporate fiscal goals by capping claim payments and engaging in fraudulent practices was properly admitted for purposes of calculating punitive damages in a suit against the insurer for bad faith, fraud, and intentional infliction of emotional distress. Id. at 1518-19. The Supreme Court found that the Utah courts erred in awarding punitive damages on evidence of lawful out-of-state conduct that bore no relation or was dissimilar to the conduct that harmed the plaintiffs. Id. at 1523-24. The Court noted that the Campbells had identified “scant evidence of repeated misconduct of the sort that injured them.” Id. at 1523 (emphasis added). The Court expressly stated, however, that “evidence of other acts need not be identical to have relevance in the calculation of punitive damages.” Id. Thus, evidence of similar conduct or conduct having a nexus to the specific harm suffered by the plaintiff may still be admitted and considered in assessing punitive damages. See id.

Here, the evidence Haggar complains of involved testimony regarding its practices and treatment of injured employees at its Weslaco plant over a period of time including the time Hernandez was employed there. We hold that the “other acts” evidence admitted was relevant to the calculation of punitive damages and that the trial court did not err in admitting it. See id. at 1523-24; see also Gore, 517 U.S. at 577, 116 S.Ct. 1589 (repeated misconduct is more reprehensible than an individual instance of malfeasance).

Having applied the three guidelines established in Gore, we hold that the punitive damages award did not violate Haggar’s due process rights. See Campbell, 538 U.S. at 422-28, 123 S.Ct. at 1523-26; Gore, 517 U.S. at 575-86, 116 S.Ct. 1589; Malone, 972 S.W.2d at 45-48.

Sufficiency of Evidence Supporting Punitive Damages

We turn next to a review of the relevant evidence in light of the Kraus factors. See Kraus, 616 S.W.2d at 910. The evidence detailed above under the first Gore standard, which we have determined satisfies the reprehensibility requirement, also satisfies the first four Kraus factors. See Moore, 960 S.W.2d at 749 (first four Kraus factors addressed by first standard under Gore). After reviewing all the relevant evidence, we conclude that the jury could have found that Hag-gar’s conduct offends the public’s sense of justice and propriety. See Kraus, 616 S.W.2d at 910. First, Hernandez testified her supervisor told her to “put up with [the pain]” so that the unit’s employees could avoid forfeiting a cash incentive bonus. Second, Dr. Heredia testified he complained to Haggar about the company nurse’s interference with the ti'eatment of patients. Third, Palomares testified that she saw injured workers being mistreated and reinjured, and that such reinjuries were common knowledge among Haggar supervisors. Finally, Pimentel testified that managers expressed their displeasure with lost-time injuries because of the adverse effect on the plant’s revenues. With regard to the last Kraus factor, the net worth of the defendant, the jury heard evidence that Haggar’s equity and/or net worth was $69,154,241 as of September 1999. See Malone, 972 S.W.2d at 40 (a defendant’s ability to pay bears directly on the question of adequate punishment and deterrence).

We hold that factually sufficient evidence supports the jury’s award of punitive damages. See Easter, 988 S.W.2d at 920 (applying Kraus factors to find evidence factually sufficient to support punitive damage award). Evidence which is factually sufficient is also necessarily legally sufficient. See British Am. Ins. Co. v. Howarton, 877 S.W.2d 347, 352 (Tex.App.-Houston [1st Dist.] 1994, writ dism’d by agr.). The punitive damage award therefore survives both the legal and factual sufficiency challenges. We overrule Hag-gar’s third and fourth issues.

Sufficiency of the Evidence to Support Damages

In its fifth issue, Haggar challenges the legal and factual sufficiency of the evidence supporting the jury’s award of $70,000 for past economic damages and $140,000 for past and future non-pecuniary compensatory damages.

Past Lost Wages

The jury awarded Hernandez $70,000 for wages and benefits between her termination and the time the Haggar plant closed. Haggar contends there is no evidence or insufficient evidence to support the award for lost wages because Hernandez at all material times considered herself able to perform only light duty work.

If an employee proves retaliatory discharge, then the employee is entitled to recover lost wages, the measure of which is the amount the employee would have earned had the employee not been discharged in violation of the statute, less the sum he or she did earn after termination. See Tex. Lab.Code Ann. § 451.002(a) (Vernon 1996); Metal Indus., Inc. v. Farley, 33 S.W.3d 83, 88 (Tex.App.-Texarkana 2000, no pet.). Hernandez presented evidence showing her hourly wage and the number of hours she worked per week. We find the evidence legally and factually sufficient to support the jury’s award of $70,000 in lost wages.

Compensatory Damages

Haggar also challenges the legal and factual sufficiency of the evidence supporting the jury’s findings that Hernandez suffered $70,000 in past compensatory damages and $70,000 in future compensatory damages, both of which “may include emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.”

To support an award of mental anguish damages, a plaintiff must either present “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs daily routine,” or “evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” Latham v. Castillo, 972 S.W.2d 66, 70 (Tex.1998) (citing Parkway v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)); Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 862 (Tex.App.-Corpus Christi 1999, pet. denied). Mental anguish is defined as a high degree of mental suffering, beyond disappointment, anger, resentment, or embarrassment, although it may include all of these. Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 712 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The proof must show such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation or a combination of any of these. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex.App.-San Antonio 1996, writ denied). The “generally nebulous issues of pain and suffering and loss of society” are “necessarily speculative, and it is peculiarly within the province of the jury to resolve these matters and set the amount of such damages.” Spohn Hosp. v. Mayer, 72 S.W.3d 52, 67 (Tex.App.-Corpus Christi 2001), rev’d on other grounds, 104 S.W.3d 878 (Tex.2003); GreenPoint, 75 S.W.3d at 45. Jurors are best suited to determine whether, and to what extent, a defendant’s conduct caused compensable mental anguish by referring to their own experience. Star Houston, Inc. v. Shevack, 886 S.W.2d 414, 418-19 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Evidence of a loss of enjoyment of life may be considered in determining damages in general or for pain and suffering. Spohn, 72 S.W.3d at 67. There must also be evidence that the amount of mental anguish damages awarded is fair and reasonable, and the appellate court must perform a “meaningful eviden-tiary review” of the amount found. Saenz, 925 S.W.2d at 614.

Having conducted a thorough review of the evidence, we conclude there is legally and factually sufficient evidence to support the jury’s verdict. See Haggar Apparel Co. v. Leal, 100 S.W.3d 303, 314 (Tex.App.Corpus Christi 2002, pet. filed) (evidence of humiliation, depression, anger, and insomnia sufficient to support finding of mental anguish); C & D Robotics, Inc. v. Mann, 47 S.W.3d 194, 200-01 (Tex.App.-Texarkana 2001, no pet.) (finding evidence legally and factually sufficient to support damages for emotional pain, mental anguish, and inconvenience where plaintiff felt “devastated,” “depressed,” and “humiliated”); Metal Indus., Inc. of California v. Farley, 33 S.W.3d 83, 89-90 (Tex.App.-Texarkana 2000, no pet.) (finding evidence legally and factually sufficient where plaintiff experienced loss of self-esteem, anger, devastation, betrayal, disappointment, and loss of sleep); Tex. Animal Health Comm’n v. Garza, 27 S.W.3d 54, 63 (Tex.App.-San Antonio 2000, pet. denied) (upholding mental anguish damages where plaintiff presented testimony that he was depressed, irritable, and experienced sleeplessness and hives); Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 509 (Tex.App.-El Paso 1999, no pet.) (upholding mental anguish damages where plaintiff testified to humiliation, marital discord, loss of self-esteem, and sleeping difficulties); Goodman v. Page, 984 S.W.2d 299, 306 (Tex.App.-Fort Worth 1998, pet. denied) (upholding mental anguish damages where plaintiff testified to feelings of devastation and humiliation and experienced stomach problems); Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d 542, 548 (Tex.App.-El Paso 1997, no writ) (upholding mental anguish damages where plaintiff experienced “despair” and marital discord); Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 916 (Tex.App.-El Paso 1996, no writ) (upholding damages for mental anguish where plaintiff was scared to death, devastated, frustrated, very angry, and in therapy).

We next consider whether the $140,000 in past and future compensatory damages awarded by the jury was fair and reasonable. See Saenz, 925 S.W.2d at 614. “Emotional pain, mental anguish, and inconvenience are difficult to quantify in monetary terms.” C & D Robotics, 47 S.W.3d at 201. “The jury has broad discretion to assign a specific dollar amount to compensate a person for these kinds of damages.” Id. We conclude that the jury’s award of $140,000 in past and future compensatory damages was supported by the evidence, was fair and reasonable, and not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Accordingly, we overrule Hag-gar’s fifth issue.

“Other Incidents” Evidence

In its sixth issue, Haggar contends the trial court erred in admitting testimony by former Haggar employees regarding the company’s alleged “pattern and practice” of discrimination against other employees who had suffered work-related injuries. Haggar contends that such “other incidents” evidence was inadmissible to show Haggar’s discriminatory intent because it involved different supervisors, different circumstances, and in some instances, was not proximate in time to Hernandez’s termination. Haggar also cites Zimlich, 29 S.W.3d at 70-71, in support of its argument that any evidence of retaliatory motive by a decision-maker other than the person who actually terminated Hernandez is irrelevant to the inquiry, and was therefore improperly admitted.

The admission and exclusion of evidence are committed to the trial court’s sound discretion. Norwest, 999 S.W.2d at 861 (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995)). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. Alvarado, 897 S.W.2d at 754; McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992); Norwest, 999 S.W.2d at 861. A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Alvarado, 897 S.W.2d at 754; Norwest, 999 S.W.2d at 861. We conduct our review to determine whether the error was reversible by examining the entire record, focusing on how the erroneously admitted or excluded evidence would have influenced the trier of fact. Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 677 (Tex.App.-Corpus Christi 1997, no pet.) (citing Alvarado, 897 S.W.2d at 755).

A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Alvarado, 897 S.W.2d at 754. An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 (Tex.1989); Norwest, 999 S.W.2d at 861.

An exception to the general rule prohibiting evidence of “other acts” applies if the acts or transactions are so connected to the transaction at issue that they may all be parts of a system, scheme, or plan. See Johnson v. City of Houston, 928 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1996, no writ) (citing Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 268-69 (Tex.App.-El Paso 1994, writ denied), overruled, in part, on other grounds by Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex.2000)). In Durbin, the El Paso Court of Appeals held that the trial court abused its discretion by excluding evidence of other retaliatory acts by a corporation in a workers’ compensation wrongful discharge case where the evidence sought to be introduced involved the same supervisory personnel, the same workplace, and the same pattern of conduct that motivated the plaintiffs discharge. See Durbin, 871 S.W.2d at 269.

Moreover, the rules of evidence allow the admission of evidence of the habit of a person, or of the routine practice of an organization, if the evidence is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. See Tex.R. Evid. 406; see also Durbin, 871 S.W.2d at 268. For testimony of the routine practice of an organization to be admissible, it must show a regular response to a repeated specific situation. Pacesetter Corp. v. Barrickman, 885 S.W.2d 256, 263 (Tex.App.-Tyler 1994, no writ); Mediacomp, Inc. v. Capital Cities Communication, 698 S.W.2d 207, 212 (Tex.App.-Houston [1st Dist.] 1985, no writ) (stating that evidence of the routine practice of an organization is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice).

Here, Haggar complains of the admission of testimony by several former Hag-gar employees. We conclude that as in Durbin, the testimony involves the same workplace and the same pattern of conduct alleged in the present case. See Durbin, 871 S.W.2d at 269. With the exception of one challenged witness, who worked as a nurse at the plant during and after Hernandez’s leave of absence, the remaining witnesses worked at the same plant where Hernandez was employed during the same period of time. We find that the witnesses’ testimony involved incidents and events that were substantially similar to the events at issue in the present case. We hold that the trial court did not abuse its discretion in admitting the evidence. Haggar’s sixth issue is overruled.

Charge Error

In its seventh and final issue, Haggar challenges various aspects of the jury charge, which it contends entitle it to a new trial. Specifically, Haggar contends the trial court erred in: (1) including an instruction that “evidence that other employees were discharged by Haggar Clothing Company should be considered for the question of the intent of the defendant corporation and for the assessment of exemplary damages if any;” (2) refusing to submit an instruction that the jury should disregard testimony and evidence involving former employees concerning conduct which occurred after Hernandez’s termination; (3) refusing to submit an instruction on Haggar’s defense of uniform enforcement of a reasonable absence control policy; (4) failing to identify the person(s) whose conduct as Haggar’s agent could subject it to punitive damages; (5) instructing the jury to award compensatory damages for “other non-peeuniary losses” without defining what other types of non-pecuniary damages may be awarded; and (6) refusing to submit an instruction including a “clear* and convincing” standard of proof.

A trial court must submit in its charge to the jury all questions, instructions, and definitions raised by the pleadings and evidence that will aid the jury in reaching a verdict. Tex.R. Civ. P. 278; Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex.1999). As a general rule, when a statutory cause of action is submitted, the charge should “track the language of the provision as closely as possible.” Borneman v. Steak & Ale of Tex., Inc., 22 S.W.3d 411, 413 (Tex.2000). When feasible, jury questions should be in broad form, accompanied by appropriate instructions and definitions. Tex.R. Crv. P. 277; Rodriguez, 995 S.W.2d at 664. When a trial court refuses to submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex.2000) (op. on reh’g); see Tex.R. Civ. P. 277. The trial judge is accorded broad discretion so long as the charge is legally correct. Rodriguez, 995 S.W.2d at 664.

Upon the general principle that a proper jury instruction is one that assists the jury and is legally correct, a trial court may personalize or individualize a charge to the facts of the case so the juiy can more easily understand the law. U.S. Sporting Products, Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 220 (Tex.App.-Waco 1993, writ denied). Trial courts also are given considerably more discretion in submitting instructions and definitions than in submitting questions. Harris v. Harris, 765 S.W.2d 798, 801 (Tex.App.-Houston [14th Dist.] 1989, writ denied); Houston Nat’l Bank v. Biber, 613 S.W.2d 771, 776 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref d n.r.e.); see also Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 349-350 (Tex.App.Fort Worth 1996, no writ). An explanatory instruction is improper only if it is a misstatement of the law as applicable to the facts. See DeLeon v. Pickens, 933 S.W.2d 286, 292 (Tex.App.-Corpus Christi 1996, writ denied).

In its first sub-issue, Haggar challenges the instruction that evidence that other employees were discharged should be considered for the questions of intent and punitive damages. Haggar* contends that the only relevant evidence was evidence regarding the decision-maker who actually terminated Hernandez. In support, Haggar cites Zimlich, 29 S.W.3d at 70-71. We have already rejected Haggar’s argument that Zimlich restricts the evidence the jury can consider solely to the conduct of the decision-maker who made the termination decision. We hold the trial court did not err in including the challenged instruction concerning evidence that other employees were discharged.

Similarly, in its second sub-issue, Hag-gar challenges the trial court’s refusal to include its requested instruction that the jury was to disregard evidence involving former Haggar employees concerning conduct that occurred after Hernandez’s employment to prove that the acts complained of were “in accordance with any habit, pattern, or practice of Haggar.” We have already determined that “other acts” evidence is admissible both to show willful intent in support of exemplary damages, and to show a plan or scheme. See Sturges v. Wal-Mart Stores, Inc., 39 S.W.3d 608, 614 (Tex.App.-Beaumont 1998), rev’d on other grounds, 52 S.W.3d 711 (Tex.2001). Thus, we hold the trial court did not err in refusing Haggar’s limiting instruction on question one.

In its third sub-issue, Haggar challenges the trial court’s refusal to include an instruction on its defense of uniform enforcement of a reasonable absence control policy. We hold that Haggar’s requested instruction on the uniform application of its absence control policy was unnecessary. See Dallas County, 62 S.W.3d at 331-33 (finding trial court did not abuse its discretion in refusing to submit requested instruction regarding employer’s defense of uniform application of reasonable absentee policy); Housing Auth. v. Guerra, 963 S.W.2d 946, 954 (Tex.App.-El Paso 1998, pet. denied) (finding requested instruction regarding employer’s uniform application of non-discriminatory policy unnecessary).

In its fourth sub-issue, Haggar contends the trial court erred in failing to identify the person(s) whose conduct as Haggar’s “agent” could subject it to punitive damages. Haggar argues that because “other acts” evidence was improperly admitted, the jury was impermissibly allowed to award punitive damages against Haggar for the acts of persons for whose conduct Haggar was not responsible. This argument is related to Haggar’s argument, raised in several issues and sub-issues, that evidence of retaliatory motive and malice was restricted to the discharge itself and the decision-maker who actually terminated Hernandez.

As noted, we have already held that the trial court did not err in admitting the “other acts” evidence. We have also rejected Haggar’s argument that the holding in Zimlich restricts the malice inquiry to the discharge and the state of mind of the person who made the termination decision. See Zimlich, 29 S.W.3d at 70-71. We further note that the challenged language tracks the applicable language regarding assessment of exemplary damages against a master for the acts of a servant in the Pattern Jury Charge. See Comm, on Pat-tekn Jury Charges, State Bar of Tex., Tex. PATTERN JURY CHARGES PJC 110.35 (2000). We hold the trial court did not abuse its discretion in submitting question four.

In its fifth sub-issue, Haggar challenges the instruction to award past and future compensatory damages for “other non-pecuniary losses,” without defining what other types of non-pecuniary damages may be awarded. We note that the challenged language follows the language on damages as provided in the Pattern Jury Charge. See id. at PJC 110.28. We hold the trial court did not abuse its dis-

cretion in failing to define “other non-pecuniary losses” in question three.

In its final sub-issue, Haggar challenges the trial court’s refusal to include a “clear and convincing evidence” standard of proof in the malice question. However, because this cause of action accrued before September 1, 1995, and the complaint was filed after September 1, 1993, it is governed by the former statute. See id. at PJC 110.31 cmt. (citing former Tex.Rev. Civ. Stat. Ann. art. 5221k, § 7.01. Act of May 14, 1993, 73rd Leg. R.S., ch. 276, § 7, 1993 Tex. Gen. Laws 1287, 1292). Thus, under the applicable law, the pertinent standard of proof of malice required to support punitive damages is preponderance of the evidence, not clear and convincing evidence. Id. Accordingly, we hold the trial court did not err in refusing the requested instruction regarding a “clear and convincing evidence” standard.

We overrule Haggar’s seventh issue. The judgment of the trial court is AFFIRMED.

      . Zimlich involves a "whistleblower” claim. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 65 (Tex.2000). The standard of causation used in whistleblower cases is applicable in employment discrimination cases. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 635-36 (Tex.1995); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 667 (Tex.App.-Corpus Christi 1998, no pet.).

      . Although this is a memorandum opinion, see TexR.App. P. 47.1, we note that the evidence supporting retaliation includes much of the evidence which we have determined also supports the finding of punitive damages. Such evidence is detailed in the section of this opinion addressing punitive damages.

      . See Tex. Gov't Code Ann. §§ 554.001-010 (Vernon Supp.2003).

        . We note that in its reply brief, Haggar challenges the use of the terms "emotional pain and suffering,” "inconvenience,” and "loss of enjoyment of life” in question 3, paragraphs (2) and (3) concerning compensatory damages. These terms were included, however, in Haggar's proposed jury questions and instructions. Thus, any challenge to the inclusion of these terms was waived. See Tex R.App. P. 33.1.


source: Caselaw Access Project

author: DIANE DeVASTO, Justice.

license: Public Domain

text:
    William OLIVAREZ, Jr., Appellant, v. Jane DOE, Appellee.
    No. 12-02-00359-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 8, 2004.

      Sten M. Langsjoen, Tyler, for appellant.
    Robert A. Ray, Tyler, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.

      . The appellee was identified as "Jane Doe” in the trial court.

   OPINION

DIANE DeVASTO, Justice.

In this case involving allegations of sexual misconduct, William Olivarez, Jr. appeals a judgment entered after a jury verdict awarding Jane Doe compensatory damages and exemplary damages. In thirteen issues, Olivarez challenges the legal sufficiency of the evidence and contends that the trial court erred by admitting evidence of extraneous misconduct and denying his motion for new trial. We affirm.

Background

Jane Doe sued William Olivarez, Jr., a relative, for damages resulting from various alleged acts of sexual misconduct. She alleged that the acts occurred over a period of approximately four years between June of 1990 and late 1994.

Jane was twenty-one years old at the time of trial. She testified that when she was about eight or nine years old, Olivarez began sexually abusing her. She stated that (1) on a trip in Olivarez’s purple/maroon car for ice cream, Olivarez forced Jane’s hand onto his penis; (2) on another trip to play tennis, he forced her hand to massage him and her hand became “really sticky”; and (3) during another incident, Olivarez pushed her over a dresser on the second floor of her grandparents’ home resulting in her “feeling hurt” in her rectal area. Jane’s written statement to law enforcement, dated March 21, 2000, was also admitted into evidence. In her statement, Jane described Olivarez’s conduct on the ice cream trip as well as other acts of sexual misconduct Olivarez committed with her during the time period in question. Jane testified that Olivarez showed her parts of the Bible to prove that what they were doing was “all right.” He told her that if she ever told anyone what was happening, she would be taken away from her parents and put in a foster home.

Jane testified that Olivarez lived in South Texas when the abuse began, but the incidents occurred when Olivarez was visiting his parents who lived near Jane and her family. In 1995, Olivarez and his wife moved in with Olivarez’s parents, and Olivarez subsequently became the youth minister at the church Jane and her family attended. While serving as youth minister, Olivarez met several young boys at the church, including J.K., C.B., and B.H. Over Olivarez’s objection, all three boys testified about several instances of inappropriate conduct by Olivarez in 1995 and 1996. Jane’s aunt and grandmother testified about an incident when they found Oliva-rez in a dark bedroom with the door closed. Each testified that Olivarez was in his underwear beside the bed and B.H. was in the bed under the covers. Olivarez testified, stating unequivocally that he had never committed any acts of sexual misconduct with Jane, C.B., or B.H.

At the conclusion of the evidence, the trial court charged the jury on assault, indecency with a child, aggravated sexual assault, and damages. The jury awarded Jane $200,000.00 as compensatory damages and $10,000.00 as exemplary damages. This appeal followed.

Issues Presented

Olivarez presents thirteen issues on appeal. In eight of those issues, Olivarez complains of certain evidence of extraneous misconduct admitted over his objection at trial. In four of the issues, he asserts that the trial court should have granted his motion for new trial in which he again complained of the admitted evidence. Finally, in one of the issues, he argues that, absent the extraneous misconduct evidence, the evidence is legally insufficient to sustain the verdict. We first address the issues challenging the trial court’s eviden-tiary ruling.

Evidence of Extraneous Misconduct

Evidence of a person’s character or character trait is not admissible to prove action in conformity therewith on a particular occasion. Tex.R. Evid. 404(a). Evidence of other crimes, wrongs, or acts may be admissible when it is relevant to a noneharacter-conformity fact of consequence, such as intent. Tex.R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (op. on reh’g); Porter v. Nemir, 900 S.W.2d 376, 381 (Tex.App.-Austin 1995, no writ). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Civ. Evid. 401. Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403 (emphasis added); Montgomery, 810 S.W.2d at 387. Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as emotion or bias. Tex. Capital See., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

Standard of Review

The decision to admit or exclude evidence is a matter within the discretion of the trial court. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). The trial court is given wide latitude to admit or exclude evidence of extraneous misconduct. Montgomery, 810 S.W.2d at 390. So long as the trial court operates within the boundaries of its discretion, an appellate court should not disturb its ruling, whatever it may be. Id. The trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991).

Where a trial court abuses its discretion in admitting evidence of extraneous misconduct, the judgment may not be reversed absent a showing that the trial court’s error probably caused the rendition of an improper judgment or that the error probably prevented the appellant from properly presenting the case to the court of appeals. See Tex.R.App. P. 44.1; Malone, 972 S.W.2d at 43. An appellate court must review the entire record when making this determination. Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex.2001). Reversible error does not usually occur in connection with rulings or questions of evidence unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Id.

Evidentiary Issues

In issues one and three, Olivarez complains that the trial court erred in admitting the testimonies of C.B. and B.H., respectively, in which they described inappropriate conduct by Oliva-rez in 1995 and 1996. In issues five and seven, he complains that the trial court permitted Jane’s aunt and grandmother, respectively, to testify about Oli-varez’s inappropriate conduct with B.H. In issue nine, Olivarez challenges the trial court’s admission of a portion of Jane’s written statement in which she made allegations that Olivarez had abused other children, including C.B. and B.H. In three additional issues raised in a supplemental brief, Olivarez asserts that the video depositions of William Summers, J.K, and Olivarez “did not supply the jury any substantive evidence relative to [Jane’s] allegations and emphasized inadmissible extraneous conduct on the part of [Olivarez].” Because these issues are intertwined, we address them together.

Olivarez’s Objection and the Trial Court’s Ruling

Before the jury was brought in, the trial court conferred with counsel for both parties regarding the admissibility of the extraneous misconduct evidence (the “evidence”). Olivarez’s counsel objected to the evidence. Jane’s counsel responded that the information was relevant to intent and that Jane had also alleged and needed to prove plan and scheme.

Olivarez’s counsel explained that “here we have the allegations of heterosexual sexual abuse and he is wanting to prove extraneous offenses of homosexual abuse. In order to have probative value, the evidence, the extraneous offenses, has to have a tendency to prove or disprove the main issue, which is the abuse of [Jane].” Counsel further argued that “[t]he switching over from the alleged heterosexual abuse to the alleged homosexual abuse is [sic], if anything, would tend to not prove the abuse.... ” Jane’s counsel argued, and the trial court agreed, that these arguments related to weight only and not to admissibility of the evidence.

The court acknowledged Olivarez’s defensive theory that the abuse never happened as opposed to something that happened but was not intentional. However, the court concluded that intent was an issue “since there are intentional claims here” and ruled that the evidence was admissible to show intent. The court granted Olivarez a “standing running objection to any evidence of extraneous acts, any allegations of sexual misconduct whether heterosexual or homosexual.”

The Evidence

Olivarez challenges the admission of the following evidence.

Testimony of C.B. (Issue One)

C.B. testified that he spent the night at Olivarez’s home after a church meeting. He awoke during the night to find Olivarez with his head below C.B.’s waist and rubbing C.B.’s penis. C.B. rolled away from Olivarez, telling him to leave him alone. Olivarez pulled C.B. back toward him and C.B. then stood by the bed. Olivarez tried to get him into the bed by telling C.B. he would give him a massage. C.B. refused to get into the bed, and Olivarez finally went back to his room.

C.B. also testified that he heard an exchange between Olivarez and B.H. at a football game after church. Olivarez tried to give B.H. a massage after B.H. told him that he did not want one. B.H. was “loud and mad” about what Olivarez said to him. B.H. then pushed Olivarez to the ground.

C.H. testified that on another occasion, he, B.H., and Olivarez were traveling in Olivarez’s car, and B.H. was standing with his head out of the sunroof. C.B. saw Olivarez grab B.H. between the inside of his knee and his mid-thigh and begin rubbing up and down. B.H. told him to stop and pushed him away.

Testimony of B.H. (Issue Three)

B.H. testified that he met Olivarez through church activities and spent the night at his house many times. When he spent the night, he and Olivarez always slept in the same room, and they often slept in the same bed. Olivarez’s wife and young son slept in another room. B.H. stated that Olivarez would tickle him, wrestle with him, and then read the Bible. During one bout of wrestling, Olivarez’s hand touched B.H.’s bottom, and B.H. responded, “Not like that.” Another time, Olivarez massaged B.H.’s back after a football game and rubbed B.H.’s stomach “a little low.” B.H. once again told him to stop. On a church trip to Irving, Texas, Olivarez made it clear to B.H. that he wanted him to stay in his hotel room. B.H. refused to stay with Olivarez. B.H. testified that he did not recall Olivarez rubbing his leg while he was standing in the car. He also testified that Olivarez bought gifts for him such as clothes and shoes.

Testimonies of Jane’s aunt and grandmother (Issues Five and Seven)

Jane’s aunt and grandmother gave similar accounts of an event that occurred at the home of Olivarez’s father, Willy Oliva-rez. The two women testified that one morning about 12:30 or 1:00, they went by to see Willy’s house. During the tour, they attempted to enter the guest room, but the door would not open. When Willy finally got the door open, the room was dark. Olivarez and B.H. were in the room. Olivarez was in his underwear, and B.H. was in the bed under the covers. Olivarez seemed startled and said, “Dad, don’t turn on the light.” He then told Willy that they needed to leave because he was “in the middle of counseling.”

Other evidence of extraneous misconduct (Issue Nine and Supplemental Issues One, Two, and Three)

Jane’s written statement included several references to possible sexual misconduct by Olivarez with other children, including B.H. and C.B.

William Summers testified by video deposition that he had been the pastor of Jane’s church where Olivarez was the youth minister. He confronted Olivarez about a complaint regarding Olivarez sleeping with one of the boys from the church. Olivarez did not deny the conduct and resigned.

J.K., testifying by video deposition, talked about his relationship with Olivarez and also about a night when he slept at the Olivarezes’ home in the same bed as Oliva-rez. J.K. stated that he went to bed with his pants on. Olivarez told him he could not sleep with someone who had his pants on and that J.K. needed to take his pants off. According to J.K., Olivarez began tickling him and reaching over trying to take his pants off. J.K. “fought him off,” and Olivarez stopped.

In Olivarez’s video deposition, some of his testimony was similar to that of other witnesses. He admitted that he had slept in the same bed with J.K., B.H., and C.B. He admitted having physical contact with the boys, but described the contact as playful and nonsexual in nature.

Issues One, Three, Five, Seven, and Nine

Before admitting the evidence, the trial court ruled, as required by the rules of evidence, that the evidence was both relevant to a material issue other than the defendant’s character (intent) and was more probative than prejudicial. Olivarez does not complain of the trial court’s ruling that the evidence was relevant to a material issue. Therefore, we do not review the propriety of the ruling.

Olivarez challenges the trial court’s second conclusion: that the evidence was more probative than prejudicial. More particularly, Olivarez argues that the evidence lacks probative value because the extraneous misconduct is not sufficiently similar to the conduct Jane alleged. Consequently, his argument continues, the testimony from C.B., B.H., Jane’s aunt, and Jane’s grandmother, summarized above, and the portions of Jane’s statement describing extraneous misconduct are more prejudicial than probative. Thus, he concludes, the admission of the evidence probably caused the rendition of an improper judgment.

Analysis

One important measure of probative value is the presence of similarity between the extraneous misconduct and the misconduct in question. Rogers v. Peeler, 146 S.W.3d 765, 775-76 (Tex.App.-Texarkana 2004, no pet.) (citing Plante v. State, 692 S.W.2d 487, 493 (Tex.1985)). Absent the requisite similarity, evidence of the extraneous misconduct is more prejudicial than probative. See Rogers, 146 S.W.3d at 776. In his brief, Olivarez assumes for purposes of argument that all of the allegations were true and identifies the following distinctions between the extraneous misconduct and the misconduct Jane alleged:

1. Jane Doe was a female; C.B. and B.H. were males.
2. Jane Doe was injured; C.B. and B.H. had no injuries.
3. Jane Doe was a relative; C.B. and B.H. were unrelated.
4. Jane Doe was threatened; C.B. and B.H. had no threats.
5. Jane Doe was abused first; C.B. and B.H. were abused later.

When proving identity, exact certainty between the extraneous misconduct and the misconduct in question is not required. Rogers, 146 S.W.3d at 776. Moreover, the same high degree of similarity is not needed when intent is the disputed issue. Plante, 692 S.W.2d at 492-93. In examining the record before us, we note that (1) Olivarez was acquainted with Jane, C.B., and B.H. before the misconduct began; (2) as Jane’s relative and C.B. and B.H.’s youth minister, Olivarez had a relationship of trust with each child; (3) because of the nature of the relationship, Olivarez could spend time with each child, unaccompanied by another adult, without arousing any suspicion of improper behavior; (4) the misconduct usually occurred during outings that were scheduled as a result of Olivarez’s relationship with each child; and (5) all of the misconduct involved actual sexual contact or contact that could be construed as a sexual advance. In our view, after examining the record, the difference in gender, and the difference in the nature of the sexual acts, and the use or nonuse of fear as a deterrent to outcry does not lessen the overall similarity of the misconduct. Consequently, based on the facts presented here, we conclude that the extraneous misconduct and the misconduct Jane alleged are similar in nature. Therefore, the probative value of the evidence was high.

In addressing the prejudicial nature of the evidence, Olivarez points out that “sexually related misconduct and misconduct involving children are inherently inflammatory.” See Montgomery, 810 S.W.2d at 397. It does not follow, however, that such evidence is inherently more prejudicial than probative. In fact, Rule 403 favors the admission of relevant evidence and carries the presumption that relevant evidence will be more probative than prejudicial. Rogers, 146 S.W.3d at 773 (citing Montgomery, 810 S.W.2d at 389).

Here, C.B. described an incident in which Olivarez rubbed his penis. Both C.B. and B.H. testified about Olivarez giving them massages or offering to do so and sleeping in the same bed with them each time they stayed overnight at his house. J.K. testified that once when he spent the night with Olivarez, they slept in the same bed and Olivarez tried to pull off J.K’s pants. Other testimony described one incident in which Olivarez touched B.H.’s “bottom” and rubbed B.H.’s stomach “a little low.” C.B., B.H., and Olivarez testified about tickling and wrestling. Summers testified that Olivarez resigned after being confronted about his conduct. Jane’s written statement included allegations that Olivarez had abused other children, including C.B. and B.H., but did not contain details of any incidents. Although this evidence was somewhat prejudicial, the evidence would not have persuaded the jury to reach a verdict on an improper basis. Moreover, the trial court instructed the jury to consider the evidence for the sole purpose of determining Olivarez’s intent toward Jane. This minimized the likelihood of any impermissible inference of character conformity. See Lane v. State, 933 S.W.2d 504, 520 (Tex.Crim.App.1996).

The record supports the trial court’s conclusion that the evidence was more probative than prejudicial. Consequently, we hold that the trial court did not abuse its discretion in admitting the evidence. Accordingly, we overrule Olivarez’s first, third, fifth, seventh, and ninth issues.

Supplemental Issues

In three supplemental issues, Olivarez maintains that his video deposition testimony and that of J.K. and Summers “did not supply any substantive evidence relative to [Jane’s] allegations and emphasized inadmissible extraneous conduct on the part of [Olivarez].” Therefore, he concludes, the trial court erred in admitting the testimony. We interpret this argument as a contention that the evidence was inadmissible because it lacked probative value. We have held to the contrary. Oli-varez’s first, second, and third supplemental issues are overruled.

Failure to Grant Motion for New Trial

In issues two, four, six, and eight, Oliva-rez asserts that the trial court erred in failing to grant his motion for new trial. Specifically, he states that “[following the conclusion of the Trial, Appellant provided the Trial Court with the opportunity to correct the apparent singular and cumulative harmful effect the extraneous conduct had on the jury’s verdict.” We have held that the trial court did not abuse its discretion in concluding that the evidence was more probative than prejudicial. Therefore, the trial court did not err in failing to grant Olivarez’s motion for new trial complaining of the same ruling. Olivarez’s second, fourth, sixth, and eighth issues are overruled.

Conclusion

The trial court ruled that (1) the extraneous misconduct evidence was relevant to intent, which was a material issue and (2) the issue was more probative than prejudicial. Olivarez does not challenge the trial court’s ruling that the evidence was relevant to a material issue. We have held that the trial court did not abuse its discretion in ruling that the evidence was more probative than prejudicial. Consequently, we have overruled Olivarez’s issues one through nine and his three supplemental issues. In Olivarez’s tenth issue, he contends that in the absence of the extraneous misconduct evidence, the jury’s verdict is based on legally insufficient evidence. Because we have held that the trial court did not abuse its discretion in admitting the complained-of evidence, we need not address his legal sufficiency argument. The judgment of the trial court is affirmed.

      . John Doe, individually and as next friend of John Doe I, a minor, was also a plaintiff in Jane's suit. In a separate trial two months earlier, a jury found that Olivarez attempted indecency with a child, John Doe I, but awarded no money damages.


author: W.G. ARNOT, III, Chief Justice.

text:
    Daniel Lee FLORES, Appellant, v. STATE of Texas, Appellee.
    No. 11-03-00372-CR.
    Court of Appeals of Texas, Eastland.
    March 10, 2005.
    Arthur Aguilar Jr., Lubbock, for appellant.
    Ricky Smith, District Attorney, Brandi H. Fernandez, Assistant Dist. Atty’s Office, Lamesa, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

The jury convicted appellant, Daniel Lee Flores, of attempted capital murder. The trial court assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. The trial court also assessed a fine of $10,000 and made an affirmative finding that appellant used a deadly weapon during the commission of the offense. Appellant attacks the legal and factual sufficiency of the evidence in a sole point of error. We affirm.

The indictment charged appellant with intentionally and knowingly attempting to cause the death of Darrell Lee Hobbs by shooting him with a firearm while Hobbs was a Texas peace officer lawfully discharging an official duty. See TEX. PEN. CODE ANN. § 19.03(a)(1) (Vernon Supp. 2004-2005). In compliance with the elements set out in Section 19.03(a)(1), the indictment also alleged that appellant knew Officer Hobbs was a Texas peace officer. Appellant limits his sufficiency challenges to the evidence supporting the jury’s determination that he knew Officer Hobbs was a peace officer.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Cr.App.2004).

Kevin Bagwell, a dispatcher with the Gaines County Sheriffs Department, testified that he received a “9-1-1” call on the evening of January 26, 2003, reporting that appellant had shot a person in the face. The call came from a residence located in Seminole. Deputy Robert Alvarado of the Gaines County Sheriffs Department and Officer Joe Mendoza of the Seminole Police Department were the first officers to arrive at the residence. Hobbs, an officer with the Seminole Police Department, arrived at the residence shortly after Deputy Alvarado and Officer Mendoza arrived. A camera mounted in Deputy Alvarado’s patrol unit recorded a large portion of the ensuing dialogue between appellant and the responding officers as well as a visual depiction of a portion of the residence. The video depicts flashing lights from three patrol units parked at the residence. Deputy Alvarado testified that he also illuminated the residence with two spotlights mounted on his patrol unit. Upon reaching the front door of the residence, Officer Mendoza knocked and instructed the occupants to “[o]pen up.” Two females and a male exited the residence a few moments later. One of the females, appellant’s mother, informed Deputy Alvarado that appellant remained inside the residence armed with a firearm. Officer Mendoza then instructed appellant to come out of the residence. Appellant replied to Officer Mendoza by yelling “[h]old on” and “[w]ait a minute.”

Officer Mendoza observed appellant inside of the residence washing his hands. Appellant ran to the back of the house when Officer Mendoza called out his name. Officer Hobbs approached the back door of the residence in order to speak with appellant. Officer Hobbs held his flashlight in front of him with it turned off. As Officer Hobbs approached the back door, appellant shot him at close range with a shotgun striking him in the arm and chest. Officer Hobbs required several surgeries in order to repair his severely injured arm.

Appellant remained inside the residence for three hours after the shooting. Officer Mendoza negotiated with appellant during the standoff in an attempt to persuade appellant to surrender. During" their negotiations, appellant asked Officer Mendoza: “Is the cop I shot, is he going to be okay?” Appellant also made the'following statement to Mickey Brown, the chief of police of Seminole, during the standoff: “I shot Hobbs. Is he dead?” A search of the residence after appellant’s arrest led to the discovery of a deceased female, a sawed-off shotgun, and two spent shotgun shells.

Appellant did not testify at trial. His trial counsel argued to the jury that appellant did not know that the person that he shot was a police officer because it was dark. Counsel stressed the fact that Officer Hobbs was wearing a dark coat and that his flashlight was turned off at the time of the shooting. The State countered counsel’s contentions by arguing that there was sufficient lighting for appellant to have observed the police officers at the residence and that Officer Hobbs’s jacket had patches which indicated that he was a police officer.

The Texas Court of Criminal Appeals recently addressed a similar eviden-tiary contention in Escamilla v. State, 143 S.W.3d 814 (Tex.Cr.App.2004). Escamilla involved the shooting of an off-duty police officer at a nightclub. Escamilla v. State, supra at 817. Although the officer was not on duty, he was wearing a jacket which displayed the insignias of the Dallas Police Department. Escamilla v. State, supra at 820. Several witnesses testified that the officer was clearly identifiable as a peace officer. Escamilla v. State, supra at 818. With regard to the police officer’s clothing, the Court of Criminal Appeals concluded that the jury could have reasonably concluded that the defendant knew that the victim was a police officer based upon the witnesses’ testimony that the officer’s status was clearly identifiable based upon his clothing. Escamilla v. State, supra at 820.

As is the situation in this appeal, the defendant in Escamilla also made statements about shooting a police officer after the shooting occurred. Escamilla v. State, supra at 819. The defendant argued that the statements did not have any evidentia-ry significance because he could have learned of the officer’s identity after the shooting occurred. Escamilla v. State, supra at 820. The Court of Criminal Appeals rejected this argument by holding that the jury could have reasonably inferred that the defendant knew the police officer’s status at the tune of the shooting based upon these statements. Escamilla v. State, supra at 820.

The jury in the underlying case was presented with audio and visual evidence of the residence and the dialogue between the officers that responded and appellant. The testimony and video revealed that, at the time the shooting occurred, at least three patrol units had responded to the residence with their overhead lights activated after receiving a call that a shooting had occurred at the residence. All of the responding officers knew appellant, and one of them spoke with appellant prior to the shooting. Three persons fled the residence upon the officers’ arrival. The jury was presented with evidence regarding Officer Hobbs’s clothing and the lighting around the residence. The jury also heard testimony regarding comments appellant made after the shooting pertaining to his knowledge of Officer Hobbs’s status as a peace officer.

Viewing the evidence presented at trial in the light most favorable to the verdict, the jury could have reasonably inferred beyond a reasonable doubt that appellant knew that his shooting victim was a police officer. See Escamilla v. State, supra at 820-21. Viewing all of the evidence in a neutral fight, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust. Furthermore, the contrary evidence is not so strong that the “beyond a reasonable doubt” standard of proof could not have been met. Appellant’s sole point of error is overruled.

The judgment of the trial court is affirmed.

      . Deputy Alvarado, Officer Mendoza, and Officer Hobbs each testified that they knew appellant from previous encounters. Officer Hobbs took a report of property damage from appellant as recently as a month prior to the incident.