author: HOLLIS HORTON, Justice.

text:
    In the ESTATE OF Ruby Fowler CORNES.
    No. 09-04-447 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 18, 2005.
    Decided Aug. 31, 2005.

      J. Randall Walker, Jasper, Richard J. Clarkson, Beaumont, for appellant.
    Gary H. Gatlin, Jasper, for appellees.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Lloyd Fowler, Sr. appeals from the trial court’s denial of his Application to Set Aside Order Probating Will, to Reinstate Application to Probate Holographic Will and Application for Bill of Review. In this instrument, Lloyd Fowler, Sr. challenged the admission to probate of a will signed by his mother, Ruby Fowler Cornes, and requested that a holographic will be admitted to probate. In four issues, Lloyd complains that he did not have notice of the application to probate the subject will; that the court erred in admitting the subject will to probate; that judicial estoppel operates to prevent the probate of the subject will; and, that the great weight and preponderance of evidence at the bill of review hearing supported a holographic will that he offered as Ruby Cornes’s last will and testament. We reverse and render in part and affirm in part.

BACKGROUND

All of the parties to this appeal, either by marriage or birth, are members of the same family. For purposes of clarity, we refer to the parties by first name.

Ruby died May 5, 1998. At the time of her death, she was survived by her husband, Wilburn H. Cornes, and five of her children from a prior marriage, Charles H. Fowler, John W. Fowler, Marilyn Fowler Walton, Lloyd Fowler, Sr., and Jewel Elizabeth (“Libby”) Fowler.

Ruby executed a will on December 19, 1997 (the 1997 Will). At the time of her death, Ruby owned 52.74 acres in Newton County, Texas and under the 1997 Will gave eight acres each to Charles, John and Marilyn, four and seventy-two hundredths acres to Lloyd, and the remainder, which included her home and over 24 acres, to Libby.

Ruby signed a holographic will in 1998 (the 1998 holographic Will). In the 1998 Will, Ruby directed that Lloyd and Libby receive the 52.74 acres of land in Newton County. The most significant difference between the gifts Ruby made in the 1997 Will and the 1998 Will was the distribution Ruby made of her land in Newton County. Ruby named her sons-in-law, Glen Walton (Marilyn’s husband, hereafter Glen) and Charles Darwin Fowler (Libby’s husband, hereafter C.D.) as co-executors in both the 1997 and 1998 Wills.

On May 2, 2002, three years and 362 days after Ruby’s death, C.D. applied to probate the 1998 holographic Will in the county court of Newton County, Texas. A series of amended applications followed, and the initial hearing regarding the attempt to probate the holographic will occurred on June 25, 2002. No order was ever entered to probate the holographic will. All of the applications to probate the 1998 holographic Will assert that “Decedent left a valid Will dated 1998, which was never revoked and is filed herewith.”

On January 17, 2003, four years, eight months, and twelve days after Ruby’s death, Glen and C.D. filed to probate the 1997 Will, and jointly filed a document titled Application for Probate of Will and Issuance of Letters Testamentary. The executors also changed lawyers. The 2003 application, for the first time, asserts:

Decedent left a written Will (“Will”) dated the _ day of _, 1998, which has previously been filed herein. Applicants do not believe that said document meets the requisites of a Will as prescribed by the State of Texas. If the Court should so find that the document [dated] the _ day of_, 1998 entitled Last Will and Testament of Ruby Lee Fowler Cornes, does not meet the requisites of a Will, then Applicants would request that the Last Will and Testament attached hereto, dated December 19, 1997 be admitted to probate. Said document dated December 19, 1997 is a valid written will and has never been revoked and is filed herewith.

Although the 2003 application to probate the 1997 Will recites that citation was requested, the record reflects that no citations were issued. On January 17, 2003, the same date the application was filed to probate the 1997 Will, the county judge signed an order admitting the 1997 Will to probate, and found that the 1998 holographic Will “was not executed with the formalities nor meet[s] the requisites of a Texas will.”

On June 13, 2003, Lloyd filed his application to set aside the order probating the 1997 Will, pursuant to Section 93 of the Texas Probate Code, and also filed a bill of review under Section 31 of the Texas Probate Code. tex. Pkob.Code Ann. §§ 31, 93 (Vernon 2003). In his application, Lloyd complained that he was not given notice of the probate hearing at which the county judge admitted the 1997 Will to probate, and also complained of other errors in the county judge’s decision to admit the 1997 Will to probate. On June 13, 2003, the county judge, on his own motion, transferred the case to the district judge of Newton County. On June 8, 2004, the district court held a trial on Lloyd’s application. No party requested a jury trial on the contested matters. Following the hearing, the district court denied Lloyd’s request to set aside the order admitting the 1997 Will to probate.

NOTICE

The Probate Code, Section 128B requires notice by service of process to each heir whose address can be ascertained by the applicant with reasonable diligence before the probate of the will. tex. PROB.Code Ann. § 128B (Vernon 2003). We hold that the county judge erred in probating the 1997 Will without proper notice as required by the Probate Code, and that the district court erred in failing to grant the Bill of Review wherein Lloyd compláined of the absence of proper notice.

However, the Probate Code further allows de novo review of the decision by a county judge to admit a will to probate. tex. PROB.Code Ann. § 5(b) (Vernon 2003); Trevino v. Turcotte, 564 S.W.2d 682, 686 (Tex.1978)(probate matters having their origin in county court are tried de novo in district court). Because Lloyd timely filed his request with the county court to review the admission to probate of the 1997 Will, he was free to assert all grounds to demonstrate that the 1998 holographic Will was Ruby’s last valid will and testament and that it should have been admitted to probate, or to demonstrate any reasons that the 1997 Will should not have been admitted to probate.

The record shows that Lloyd was given a full opportunity to try all of the issues that he raises in this appeal in a trial de novo in district court. Lloyd also does not assert that he was foreclosed from fully developing any issue at the trial in the district court. “The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded.” Southern Canal Co. v. State Board of Water Eng’rs, 159 Tex. 227, 318 S.W.2d 619, 622 (Tex.1958).

In the trial de novo, the district court could have granted Lloyd full relief from any error made by the county judge in admitting the 1997 Will to probate. On proper proof, the district court could have admitted the 1998 holographic Will to probate. Thus, any error committed by the county court’s failure to issue citation to give Lloyd notice of the hearing was rendered harmless. London v. Chandler, 406 S.W.2d 203 (Tex.1966)(party must show prejudice when complaining about defect in citation). We hold that under the record in this case the failure to give Lloyd notice of the January 17, 2003 hearing was harmless error.

ERROR IN ADMITTING 1997 WILL TO PROBATE

Lloyd argues that the four-year limitation period of Section 73(a) of the Texas Probate Code prohibits the admission of the 1997 Will. Section 73(a) provides:

(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

tex. PROb.Code Ann. § 73(a)(Vernon 2003). As used in this statute, “default” means “failure to probate a will due to the absence of reasonable diligence on the part of the party offering the instrument.” Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex.App.-Dallas 2003, pet. denied)(citing House v. House, 222 S.W. 322, 325 (Tex.Civ.App.-Texarkana 1920, writ dism’d w.o.j.)).

Ruby died May 5, 1998. The 1997 Will was first offered and also admitted to probate on January 17, 2003. The proponents of the 1997 Will had the burden of showing an excuse to justify their failure to timely offer the 1997 Will for probate. Schindler, 119 S.W.3d at 929. The only excuse offered by any of Ruby’s children regarding the delay in submitting the 1997 Will to probate was Libby’s testimony that the delay in probating the will was “out of respect for [their step-] dad [Wilburn Cornes]”. The record also reflects that Wilburn died in October, 2002. It is possible that Wilburn might have opposed either of these wills. Under both wills, Ruby intentionally disinherited him. For example, Ruby states in her 1997 Will, “I have intentionally made no provision in this Will for my husband, Wilburn Hurshel Cornes, and I direct that he shah take none of my property either under this Will or by the laws of intestacy.” Ruby wrote a similar provision in her holographic will.

Nevertheless, we have found no opinion in which an appellate court construing Section 73 of the Probate Code has recognized respect for potential heirs as an excuse for the devisees’ delay in presenting a will for probate. According to Libby, she and her sister Marilyn, and the co-executors of the 1997 Will, Glen and C.D., were all aware of the existence of the 1997 Will and the 1998 holographic Will on the day of the funeral. Libby testified that they notified Lloyd of the existence of both wills on the following day. According to Lloyd, within a month or so of Ruby’s death, he went with Libby and John to a lawyer’s office in Jasper where he saw the holographic will. Charles and John, Ruby’s other two sons, although present, did not testify at the hearing. Thus, there is no evidence in the record that shows an absence of knowledge by any of the parties to this appeal of the existence of the 1997 Will.

Family agreements to delay the probate of a will about which they had knowledge are not sufficient to excuse noncompliance with the four-year limitation of the Probate Code. Brown v. Byrd, 512 S.W.2d 753, 757 (Tex.Civ.App.-Tyler 1974, no writ); Armendariz De Acosta v. Cadena, 165 S.W. 555 (Tex.Civ.App.-El Paso 1914, error ref'd).

We find no evidence of a legal excuse in the record for the failure of these parties to timely apply to probate the 1997 Will. Because the proponents of the 1997 Will did not carry their burden to establish they were not in default of the time limits prescribed by the Probate Code, the district court erred in denying the application to set aside the order probating the 1997 Will. The district court further erred in ordering that the 1997 Will remain admitted to probate. In light of our disposition of this issue, we do not reach Lloyd’s argument that the 1997 Will proponents were judicially estopped from probating the 1997 Will.

1998 HOLOGRAPHIC WILL-HANDWRITING REQUIREMENT

In its findings of fact, the district court found that the 1998 holographic Will was not proven by two witnesses to be wholly in the handwriting of Ruby. Section 84(b) of the Texas Probate Code requires that a holographic will, if not self-proven, be proven by two witnesses, tex. PROB. Code Ann. § 84(b) (Vernon 2003).

There were two witnesses who testified at the hearing before the district judge that the 1998 holographic Will was in Ruby’s handwriting. Lloyd Fowler, the contestant, and Faye Shipman, a questioned-documents examiner, both testified that the 1998 holographic Will was all in Ruby’s handwriting. Shipman was cross-examined regarding the fact that in one place on the will, the date was originally written as 1996, but the 6 was written over to signify an 8, resulting in the date’s being 1998. Shipman attributed this change to the author’s correction of a mistake. Other parts of the 1998 holographic Will were dated 1998, without correction. Shipman was also cross-examined about the fact that the will was written in different pens. She agreed that the will may have been written in more than one sitting.

Although both Libby and Marilyn testified at the hearing before the district court, neither of them testified that the 1998 holographic Will was not in Ruby’s handwriting. C.D., Libby’s husband and one of the co-executors, was the sole witness who questioned whether the handwritten will was in Ruby’s handwriting. C.D. testified on cross-examination:

Q. Do you think that Ms. Cornes wrote that handwritten Will dated on the blank day of blank, 1998.
A. I think that she wrote some of it. I don’t think that she wrote all of it.

However, no predicate was laid showing that C.D. was familiar with Ruby’s handwriting. C.D. also admitted to giving testimony before the county judge that the 1998 holographic Will was all in Ruby’s handwriting. C.D. was the only witness who testified that the will was not all in Ruby’s writing.

Lloyd, as the proponent of the holographic will, had the burden of proving that the instrument was “wholly in the handwriting of the testator.” tex. PROB. Code Ann. § 84(b) (Vernon 2003); Gunn v. Phillips, 410 S.W.2d 202, 205 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.). The testimony of two of the witnesses, Lloyd Fowler and Faye Shipman, an expert, was clear, direct and positive on the question of whether the 1998 holographic Will was all in Ruby’s handwriting. The only contradictory evidence on the issue, from C.D., was not clear, positive or direct; and, C.D.’s opinion suffers from the fact that there was no proof that C.D. was familiar with Ruby’s handwriting. When a witness is not properly qualified to testify, opinion testimony amounts to conjecture and has no probative value. Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996).

Lloyd argues that as a matter of law, on this record, the 1998 holographic Will should have been admitted to probate. But, we also note that Lloyd Fowler’s and Faye Shipman’s testimony that the will was wholly in Ruby’s handwriting was opinion testimony. Neither Faye Shipman nor Lloyd testified that they saw Ruby write the holographic will. While their testimony raised a fact issue, under similar circumstances, two of our sister courts have stated that the testimony of a witness who can testify the writing is the decedent’s, but who did not actually see the instrument written, is not considered conclusive on whether a will is entirely in the decedent’s writing. Lopez v. Hansen, 947 S.W.2d 587, 590 (Tex.App.-Houston [1st Dist.] 1997, no pet.); In re Estate of Roberts, 661 S.W.2d 177, 181 (Tex.App.-San Antonio 1983, no writ). In these two cases, the appellate courts upheld trial courts’ orders rejecting holographic wills when the record contained contradictory evidence on whether the wills were wholly in the writing of the decedents. As recently noted by the Texas Supreme Court, “It is impossible to define precisely when undisputed evidence becomes conclusive.” City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex.2005).

The co-executors, Glen and C.D., argue that the fact that there were no eyewitnesses to Ruby’s writing the 1998 holographic Will permitted the trial court to conclude that the will was not in her handwriting. The co-executors cite Lopez as authority for their contention. However, in Lopez, the proponents of the holographic will were not family members, and their testimony was not free from contradiction. 947 S.W.2d at 589-90. In Lopez, the record also contained testimony from a properly qualified witness familiar with the decedent’s handwriting who testified that the signature on the will was not the decedent’s. Id. at 590. Lopez is distinguishable because there was no testimony at the trial contest over Ruby’s wills from a properly qualified witness that the handwriting on the 1998 holographic Will was not Ruby’s. This type of evidence was present in Lopez.

“The general rule is that opinion testimony, even when uncontroverted, does not bind the jury unless the subject matter is one for experts alone[.]” Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998). Although we have no evidence in this record of the accuracy of handwriting experts, in the absence of a record demonstrating a very high degree of accuracy, the better practice in our opinion is to treat such evidence as nonbinding. Nevertheless, “proper review ... prevents [fact-finders] from substituting their opinions for undisputed truth.” City of Keller, 168 S.W.3d at 817. The testimony in the record from witnesses who were qualified as familiar with Ruby’s writing reflected that the 1998 Will was in Ruby’s writing. The only testimony contrary to those opinions came from a witness not shown to be familiar with Ruby’s writing. Having carefully reviewed all of the testimony in the record, we hold that the district court’s finding that the 1998 holographic Will was not in Ruby’s writing is against the greater weight and preponderance of the evidence.

HOLOGRAPHIC WILL-OTHER PROBATE CODE REQUIREMENTS

The district court also found in its findings of fact that the 1998 holographic Will “does not meet the requisites of a Will as prescribed by the Texas Probate Code.” In addition to requiring that a holographic will be wholly in the decedent’s handwriting, the pertinent provisions of the Texas Probate Code required the proponents of Ruby’s non-self-proved holographic will to prove that: (1) the testator was at least eighteen years of age when the will was executed; (2) the testator was of sound mind; (3) the will was not revoked; (4) the testator is dead, and four years have not elapsed since the date of death prior to the application; (5) the court has jurisdiction and venue over the estate; and (6) citation was served as required by law. tex. PROB. Code Ann. §§ 57, 88 (Vernon 2003).

The district court’s findings do not specify which of these grounds form the basis of its findings of fact. Therefore, we review all of the evidence in the record to evaluate whether the record supports the district court’s finding under any of these six requirements. First, we note that in their brief, Appellees did not contradict the Statement of Facts in Appellant’s brief. Therefore, under tex.R.App. P. 38.1(f), we accept Appellant’s Statement of Facts as true.

It was undisputed that Ruby died May 5, 1998. As established by the certified copy of Ruby’s death certificate, she was eighty-four years old at the time of her death, tex. Health & Safety Code Ann. § 191.052 (Vernon 2001). Thus, the record shows that Ruby was over the age of eighteen in 1998 when she penned the 1998 Will.

The Probate Code also requires that a testator be “of sound mind” at the time of making a will. tex. PRob.Code Ann. § 57 (Vernon 2003). There is no definition in the Probate Code of the term, and courts have defined it as having:

sufficient ability to understand: her business upon which she is engaged; the effect of the act of making a will; the nature and extent of her property; the persons to whom she meant to devise and bequeath her property; and the persons dependent upon her bounty, and the mode of distribution among them. Further, the testatrix must have memory sufficient to collect in her mind the elements of the business to be transacted and hold them long enough to form a reasonable judgment.

Schindler, 119 S.W.3d at 931; accord In re Estate of Blakes, 104 S.W.3d 333, 336 (Tex.App.-Dallas 2003, no pet.); In re Estate of Flores, 76 S.W.3d 624, 630 (Tex.App.-Corpus Christi 2002, no pet.). In order to probate Ruby’s 1998 holographic Will, Lloyd had to prove that Ruby was of sound mind when she signed the will, and he bore the burden of proving that Ruby had the requisite testamentary capacity. tex. PRob.Code Ann. § 88(b)(1) (Vernon 2003); Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex.1983); Seigler v. Seigler, 391 S.W.2d 403, 404 (Tex.1965). As the party with the burden of proof, and since the trial court implicitly found that Lloyd had not proven that Ruby had the requisite testamentary capacity with respect to the 1998 holographic Will, Lloyd must demonstrate on appeal that the evidence before the district court established that Ruby had testamentary capacity as a matter of law. In Re Neville, 67 S.W.3d 522, 524 (Tex.App.-Texarkana 2002, no pet.).

The evidence in the record shows that when Ruby had an attorney draft the 1997 Will, Ruby was not under any undue influence and, according to the lawyer who drafted the 1997 Will, “[Ruby] was very particular about what she wanted” in the will drafted in December, 1997. There is no testimony in the record by any witness regarding Ruby’s mental capacity when she wrote the 1998 holographic Will. The only additional testimony in the record relevant to Ruby’s testamentary capacity concerned Ruby’s appearance before a justice of the peace on March 11, 1998 when Ruby purportedly revoked her 1997 Will. The justice of the peace testified that Mrs. Cornes appeared sane, rational, and understood what she was doing.

The 1998 holographic Will was not dated, and there was no testimony that showed the date on which Ruby signed it. However, the absence of a date on a holographic will is not fatal. Cason v. Taylor, 51 S.W.3d 397, 407 (Tex.App.-Waco 2001, no pet.); Trim v. Daniels, 862 S.W.2d 8, 10 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Where there is no evidence of a testator’s mental soundness on the date the testator executed a will, the fact finder “may also look to the testator’s state of mind at other times if those times tend to show his state of mind on the day the will was executed.” In re Neville, 67 S.W.3d at 525. However, when a testator’s mental soundness is proven by evidence before or after the date the will was executed, the evidence “must show that the testator’s condition persisted and probably was the same as that which existed at the time the will was signed.” Id.

The 1998 holographic Will treated two of Ruby’s children, Lloyd and Libby, more favorably than her other children. Although there was an explanation about why Ruby favored Libby (and had made a similar disposition in her 1997 Will to Libby), there was no explanation about why she would have changed her will to favor Lloyd. In fact, there was testimony from Marilyn that she knew of no reason why Ruby might have been angry at Marilyn, Charles or John. Libby testified that her mother would not have executed a will without leaving part of her real property to Marilyn, Charles, and John. C.D., Ruby’s son-in-law, a co-executor of her estate, and Libby’s husband, testified that Ruby never wanted to leave any of her children out of the will and wanted everyone to get something. The trial judge was entitled to consider the change that favored Lloyd, absent an explanation, in weighing the evidence. Dominguez v. Duran, 540 S.W.2d 567, 571 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.); Miller v. Flyr, 447 S.W.2d 195, 196 (Tex.Civ.App.-Amarillo 1969, writ ref'd n.r.e.).

While the evidence on the issue of testamentary capacity is sparse, Lloyd bore the burden of proof. Testamentary capacity “may be determined from lay opinion testimony based upon the witnesses’ observations” that are reliable to show the testator was of sound mind. Gillispie v. Reinhardt, 596 S.W.2d 558, 560 (Tex.Civ.App.-Beaumont 1980, writ ref'd n.r.e.). Several of Ruby’s children who were around Ruby on several occasions during 1997 and 1998 testified, and were most likely witnesses with relevant knowledge on whether Ruby was mentally sound during 1998 when she wrote the holographic will. Nevertheless, the record in this case reflects no lay opinion that established Ruby was of sound mind generally during 1998.

On this record, the district court was entitled to conclude that Lloyd failed to meet his burden of proving that Ruby had testamentary capacity when she executed the 1998 holographic Will. As a result, we decline to overturn the district court’s order denying the request to probate the 1998 holographic Will. In light of our ruling that the district court did not commit error in rejecting the 1998 holographic Will because Lloyd failed to prove Ruby’s soundness of mind when she executed the will, it is not necessary that we review the evidence on the additional Probate Code requirements that Lloyd had to establish to have the 1998 holographic Will admitted to probate.

In summary, we hold that it was error to admit the 1997 Will to probate because it was offered without a legal excuse beyond the four-year period after Ruby’s death. We also hold that Lloyd failed to meet his burden of proving testamentary capacity with respect to the 1998 holographic Will, and, as a result, the district court did not err in refusing to admit the 1998 holographic Will to probate. We affirm the district court’s judgment denying the probate of the 1998 holographic Will. We reverse the district court’s judgment admitting the 1997 Will to probate and render judgment that its admission to probate be denied.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.


source: Caselaw Access Project

license: Public Domain

text:
    Steven Alexander MENEFEE, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-169 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 31, 2005.
    Decided Aug. 31, 2005.

      Russell J. Wright, Silsbee, for appellant.
    Sue Korioth, Special Prosecutor, Tyler County Criminal Dist. Atty., Dallas, Joe R. Smith, Tyler County Criminal Dist. Atty., Woodville, for state.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Appellant Steven Alexander Menefee was indicted for second-degree robbery. See tex. Pen.Code Ann. § 29.02 (Vernon 2003). The State alleged Menefee had a prior conviction for felony theft, raising his range of punishment to that for a first-degree felony. See tex. Pen.Code Ann. § 12.42(b) (Vernon Supp.2005). Following the jury’s “guilty” verdict, Menefee pled “true” to the enhancement allegation and stipulated to the prior conviction. He was sentenced to twenty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division, and fined $10,000.

In five issues, Menefee contends: (1) the trial court enhanced his sentence with a prior theft conviction that was not final when he committed the robbery; (2) he received ineffective assistance of counsel because his trial counsel failed to investigate and discover that the prior conviction used to enhance his sentence was an unre-voked probated sentence; (3) the trial court entered a void cumulation order; (4) the trial court entered a different sentence than it orally pronounced; and (5) the evidence proving Menefee committed theft of property was factually insufficient. We affirm the conviction and reverse and remand for a new punishment hearing.

We first review Menefee’s factual sufficiency argument. The Court of Criminal Appeals has recently restated the standard for reviewing factual sufficiency as follows:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004) (footnote omitted). In a factual sufficiency review, we must give due deference to the jury’s determination concerning the weight and credibility of the evidence, and we will reverse the jury’s determination only to arrest the occurrence of a manifest injustice. Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.Beaumont 2004, pet. ref'd) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003)).

J.S., the victim, testified that on the evening of the incident, he was in his car when Menefee approached and offered to buy marihuana for him. J.S. gave Mene-fee money to purchase the marihuana, and then J.S. left the scene. After accepting J.S.’s money, Menefee left to obtain the marihuana.

Subsequently, a group of young men approached J.S.’s ear. At J.S.’s invitation, three young men entered his car and the young men began talking to each other. The two young men in the backseat left the car and two other young men entered the backseat. The young men began talking to J.S. and then started beating him. One of them held a knife to J.S.’s throat and demanded his wallet. After taking J.S.’s wallet, they pulled him out of the car and continued to beat him. The assailants eventually ran away, and J.S. entered his car and left. J.S. testified he did not know if Menefee participated in the assault or took his wallet because he could not remember any of the attackers’ faces.

Menefee testified he assaulted J.S. after returning to the scene. According to Me-nefee, he overheard J.S. accuse two young men of stealing his money. When Mene-fee observed J.S. grab one of the young men and attempt to pull the young man into his car, Menefee “intervened” by hitting J.S. Menefee testified he hit J.S. to protect the two young men. Menefee did not recall how many times he hit J.S., and he denied kicking J.S. Menefee testified he did not take J.S.’s wallet, but he admitted that he kept the money J.S. had previously given him. Menefee admitted that he assaulted J.S. but denied robbing him.

On cross-examination, the State introduced a letter Menefee wrote to the district attorney before trial. In the letter, Menefee claimed he and J.S. were in an apartment when J.S. asked Menefee to sell him marihuana. Menefee asserted that J.S. willingly handed Menefee his wallet to show that he was not a police officer. In the letter, Menefee indicated a fight ensued after J.S. handed him his wallet.

The State also introduced Menefee’s testimony from the hearing on the State’s motion to revoke probation. At the hearing, Menefee testified to an encounter at an apartment, during which J.S. gave him money to purchase marihuana. According to Menefee, he left the apartment, and he returned to find his friends beating J.S. Menefee testified he did not participate in the fight but may have hit J.S. once.

At trial, Menefee testified he lied in the letter and at the revocation hearing. Me-nefee testified that despite the inconsistency between his prior versions of the events, he was being truthful at trial.

M.B. and A.D., both of whom were well acquainted with Menefee, testified they saw Menefee assault J.S. M.B. could not recall how long she viewed the incident, and A.D. testified he watched the fight for five to six minutes. M.B. viewed the incident from across the street, and A.D. viewed the incident from fifteen yards away. Both witnesses testified they watched Menefee and two other young men beat J.S. while he sat inside his car. Only A.D. observed the young men pulling J.S. out of the car, but he did not know if Menefee was among them. On cross-examination, A.D. testified he did not see Menefee hit J.S. while J.S. was inside the car. A.D. admitted he did not focus his attention on any particular person.

Officer Michael J. McCulley of the Woodville Police Department investigated the robbery. While investigating the scene of the crime, another officer saw two of the young men with blood on their shirts and the officer detained them. Officer McCulley testified that the same officer recovered J.S.’s wallet and its original contents several hundred feet from the scene of the robbery. Menefee was subsequently arrested in Hardin County and returned to Tyler County.

Menefee argues the evidence presented at trial to prove he was in the course of committing theft of property was factually insufficient to support his conviction. First, he contends the two witnesses who viewed the assault and identified him as a participant did not view the entire incident. Next, he argues J.S. could not identify the person who put a knife to his throat and took his wallet. Finally, Mene-fee argues that because the jury was not charged regarding the law of parties, the State had to prove he committed each element of robbery beyond a reasonable doubt.

When a jury is not charged regarding the law of parties, a defendant may only be convicted on the basis of his own conduct. Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App.1996). We review the record to determine whether the evidence is sufficient to find Menefee guilty of robbery based on his own conduct.

A person commits a robbery if, (1) in the course of committing theft and (2) with the intent to obtain or maintain control of the property, (3) he intentionally, knowingly, or recklessly causes bodily injury to another, tex. Pen.Code Ann. § 29.02 (Vernon 2003). The term “in the course of committing theft” means conduct that occurs in an attempt to commit, during the commission of, or in immediate flight after the attempt or commission of theft, tex. Pen.Code Ann. § 29.01(1) (Vernon 2003). A theft occurs when one unlawfully appropriates property with the intent to deprive the owner of the property. tex. Pen.Code Ann. § 31.03(a) (Vernon Supp.2005). The intent to steal may be inferred from circumstantial evidence and from the defendant’s conduct. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999).

The record indicates Menefee knew J.S. had money because J.S. gave him money to purchase marihuana. When Menefee returned to J.S., he did not give J.S. any marihuana nor did he return J.S.’s money. The jury could infer Menefee returned to get more money from J.S. by stealing his wallet. During the assault, J.S.’s wallet was taken without his consent. The jury could further infer Menefee assaulted J.S. to steal the wallet. Menefee admitted hitting J.S., and J.S. suffered injuries to his head and face. Despite Menefee’s testimony that he only assaulted J.S. to protect two young men, the jury was free to disbelieve Menefee’s testimony in light of the circumstances surrounding the assault and his prior inconsistent statements.

Reviewing all of the evidence in a neutral light, we cannot conclude that the proof of Menefee’s guilt is so obviously weak as to undermine confidence in the determination of the jury, nor can we conclude that the proof of guilt is greatly outweighed by contrary proof. See Zuni-ga, 144 S.W.3d at 484-85. Menefee’s own conduct was sufficient for the jury to find him guilty of robbery beyond a reasonable doubt. See tex. Pen.Code Ann. § 29.02 (Vernon 2003). The evidence is factually sufficient to support the jury’s verdict. Issue five is overruled.

In issue two, Menefee contends he received ineffective assistance of counsel because his trial counsel failed to investigate and discover that the prior conviction used to enhance his sentence was an unrevoked probated sentence. Menefee argues trial counsel’s silence regarding the enhancement issue reflects counsel was unaware of Texas enhancement law and did not investigate the procedural history of the enhancement count.

The legal standard applicable to an ineffective assistance of counsel claim is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Menefee must first show trial counsel’s performance was deficient. Id. at 687, 104 S.Ct. 2052; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). Specifically, Menefee must prove, by a preponderance of the evidence, that trial counsel’s representation fell below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642. Second, Menefee must show that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “This means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mitchell, 68 S.W.3d at 642.

“Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). This deferential standard applies to ineffective assistance that occurs during the punishment phase of trial. Flowers v. State, 133 S.W.3d 853, 856 (Tex.App.-Beaumont 2004, no pet.) (citing Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999)).

It is well settled that any claim of ineffective assistance must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). “Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.” Bone, 77 S.W.3d at 833.

However, “when no reasonable trial strategy [can] justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as [he] did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.2005). When the record contains all the information needed to make a decision, we may find trial counsel’s performance to be deficient even when the record is silent as to counsel’s trial strategy and tactics. See id. at 102-OS.

The first Strickland prong requires us to decide whether Menefee has shown trial counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The record indicates trial counsel allowed Menefee to plead “true” and stipulate to the enhancement allegation.

For enhancement purposes, prior convictions must be final. Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App.2001). A probated sentence is not a final conviction for enhancement purposes unless it is revoked. Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App.1992) (citing Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App.1978)). The State’s Exhibit No. 9, a penitentiary packet, shows Menefee received an April 12, 2002 theft conviction for 120 months, probated for 120 months. The penitentiary packet also includes a September 13, 2002 judgment revoking the April 12, 2002 community supervision. Thus, the prior felony theft conviction became final on September 13, 2002, the date Menefee’s probation was revoked. See Colvin v. State, 54 S.W.3d 82, 87 n. 1 (Tex.App.-Texarkana 2001, no pet.) (noting the date a prior conviction becomes final is the date community supervision is revoked).

The jury charge and jury findings allowed Menefee’s sentence to be enhanced pursuant to the 1993 amendment of tex. Pen.Code Ann. § 12.42(b), which became effective on September 1,1994. See Act of May 31, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.42, 1993 Tex. Gen. Laws 3586, 3604 (current version at tex. Pen. Code Ann. § 12.42(b) (Vernon Supp.2005)). When Menefee committed the primary offense, section 12.42(b) provided:

If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.

Id. The Austin Court of Appeals has held the State has the burden to show a prior conviction used to enhance punishment under section 12.42(b) became final before the commission of the primary offense. See Espinoza v. State, 843 S.W.2d 729, 731 (Tex.App.-Austin 1992, pet. ref'd) (citing Diremiggio v. State, 637 S.W.2d 926, 928 (Tex.Crim.App.1982)). The Austin Court of Appeals relied on case law resolving the analogous issue under section 12.42(c). See Espinoza, 843 S.W.2d at 731 (citing Diremiggio, 637 S.W.2d at 928); tex. Pen. Code Ann. § 12.42(c) (Vernon Supp.2005). Section 12.42(c)(1), which contains language similar to section 12.42(b), provides:

[I]f it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term not more than 99 years or less than 15 years.

tex. Pen.Code Ann. § 12.42(c)(1) (Vernon Supp.2005).

In Diremiggio, the defendant was sentenced as a repeat offender under section 12.42(c). Diremiggio, 637 S.W.2d at 927 n. 1; Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at tex. Pen.Code Ann. § 12.42(c)(1) (Vernon Supp. 2005)). The Court of Criminal Appeals stated,

It is settled that the burden is on the State to make a prima facie showing that any prior conviction alleged for enhancement, or for punishing an accused as a repeat offender, became final before the commission of the primary offense, and once such a showing is made, the burden shifts to the defendant to prove otherwise.

Diremiggio, 637 S.W.2d at 928.

Menefee pled “true” to the enhancement allegation and stipulated that on April 12, 2002, he had been convicted of a felony theft. The theft conviction had not become final before the commission of the primary offense and could not be used to enhance Menefee’s punishment. See Diremiggio, 637 S.W.2d at 928. Because counsel allowed Menefee to plead true and stipulate to the prior conviction, Menefee lost the ability to appeal his sentence based on the sufficiency of the evidence used to enhance his punishment. See Smith v. State, 158 S.W.3d 463, 465 (Tex.Crim.App.2005); Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981).

Trial counsel had a duty to research Texas enhancement law, investigate Mene-fee’s case, and prevent Menefee from pleading “true” to the enhancement allegation. See, e.g., Andrews, 159 S.W.3d at 102. “This duty derives from counsel’s function ‘to make the adversarial testing process work in the particular case.’ ” Id. (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). There can be no reasonable trial strategy for allowing Menefee to plead “true” to an enhancement allegation that was in fact not true. We find trial counsel’s performance fell below an objective standard of reasonableness as a matter of law. See id. The first prong of the Strickland test has been satisfied.

We next decide whether under Strickland’s second prong, trial counsel’s deficient performance prejudiced Mene-fee’s defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. There is a reasonable probability that but for trial counsel’s error in allowing Menefee to plead “true” and stipulate to the theft conviction, the result of the proceeding would have been different. See Mitchell, 68 S.W.3d at 642. Menefee’s punishment was enhanced from a second-degree felony carrying a punishment range of two to twenty years to a first-degree felony carrying a punishment range of life or five to ninety-nine years. See tex. Pen.Code Ann. §§ 12.32(a), 12.33(a) (Vernon 2003). Menefee was sentenced to twenty-five years’ confinement, which is five years more than the maximum allowed for a second-degree felony. See tex. Pen.Code Ann. § 12.33(a) (Vernon 2003).

There is a reasonable probability that had trial counsel advised Menefee to plead “not true” to the enhancement allegation, Menefee .would have either received a sentence within the punishment range allowed for second-degree robbery, or he would have been able to challenge any sentence outside of the punishment range based on insufficient evidence. Because Menefee has demonstrated trial counsel’s deficient performance prejudiced his defense in the punishment phase, the second prong of the Strickland test is satisfied. Issue two is sustained.

Menefee’s conviction for robbery is affirmed. Because we conclude counsel’s performance was deficient in the punishment hearing and Menefee was prejudiced by counsel’s deficient performance, we reverse the judgment of the trial court and remand for a new punishment hearing. See tex.Code Crim. PROC. Ann. art. 44.29(b) (Vernon Supp.2005).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . The enhancement statute applicable during the time of the primary robbery offense was amended in 1993. See Act of May 31, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.42, 1993 Tex. Gen. Laws 3586, 3604 (current version at tex. Pen.Code Ann. § 12.42(b) (Vernon Supp.2005)). Because there has not been a substantive change to section 12.42(b) since its effective date, we will cite to the current version.

      . When Espinoza was decided, section 12.42(b) provided:
      If it be shown on the trial of a second-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony.
      Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at tex. Pen.Code Ann. § 12.42(b) (Vernon Supp.2005)).

      . When Diremiggio was decided, section 12.42(c) provided:
      If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.

        Diremiggio, 637 S.W.2d at 927 n. 1 (citing Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 12.42, 1973 Tex. Gen. Laws 883, 908 (current version at tex Pen.Code Ann. § 12.42(c)(1) (Vernon Supp.2005))).

      . Because our holding disposes of the remaining issues, we will not reach the merits of Menefee’s first, third, and fourth issues.


author: BRIAN QUINN, Chief Justice.

text:
    Roel ROBLEDO, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0561-CR.
    Court of Appeals of Texas, Amarillo.
    Sept. 14, 2005.

      R. Walton Weaver, Amarillo, for appellant.
    Kelley K. Messer, Asst. Dist. Atty., Plainview, for appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Appellant, Roel Robledo, appeals his conviction for possessing a controlled substance. His sole issue concerns the trial court’s order denying his motion to suppress. Suppression was warranted, in his view, because the methamphetamine was seized from the cab of his tractor trailer in violation of both the federal and state constitutions. That is, appellant believes the officer impermissibly detained him after the purpose of the initial stop was effectuated and that his consent to search was involuntary. We affirm the judgment of the trial court.

Standard of Review

We review the trial court’s ruling on a motion to suppress under the standard announced in Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App.2002) and Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). It requires us to give almost total deference to the trial court’s findings of historical fact and review de novo the application of the law to the facts. Johnson v. State, 68 S.W.3d at 652-53.

Application of Standard

The only witness at the suppression hearing was Trooper Joel Rejino. He testified that around midnight he observed the tractor trailer that appellant drove pass him in the opposite direction. Peering through his rearview mirror, he noticed that the vehicle’s tail lights were not illuminated. This caused the officer to turn his car around and follow the tractor trailer. While doing so, he realized that the tail lights actually were illuminated but would flicker on and off.

Appellant was eventually stopped and asked for his driver’s license and paperwork. So too did the trooper request appellant to accompany him to the patrol car. Both entered the vehicle. Rejino sat in the driver’s seat while appellant sat in the passenger seat. There, the trooper examined the registration and insurance documents of the tractor trailer and decided to give appellant a warning ticket. After issuing the written warning, Rejino received a criminal history report from dispatch showing that appellant had no outstanding warrants but was the subject of a prior drug conviction. Within 10 to 30 seconds of issuing the citation and receiving the report, the trooper requested of appellant permission to search both his person and the tractor trailer. Appellant consented to both. It was during the search of the vehicle that the controlled substance was discovered.

Authority holds that as part of a traffic stop, an officer may 1) require the detainee to identify himself and produce a valid driver’s license and proof of insurance and 2) detain the individual for a period of time reasonably sufficient to check for outstanding warrants. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Crim.App.2004); Strauss v. State, 121 S.W.3d 486, 491 (Tex.App.-Amarillo 2003, pet. ref'd). So too may he also ask the driver if he possesses illegal contraband and solicit voluntary consent to search the vehicle once the purpose of a traffic stop has been effectuated. Strauss v. State, 121 S.W.3d at 491; James v. State, 102 S.W.3d 162, 172-73 (Tex.App.-Fort Worth 2003, pet. ref'd). Requesting such consent is not an unlawful seizure, and neither probable cause nor reasonable suspicion is required for the officer to ask. James v. State, 102 S.W.3d at 173. Nor must the officer tell the individual that he is free to leave after the purpose of the stop is completed. Vargas v. State, 18 S.W.3d 247, 252 n. 1 (Tex.App.-Waco 2000, pet. ref'd).

As previously mentioned, once Trooper Rejino issued the warning and received the report from the dispatcher, he solicited the consent to search. By then the purpose of the stop had been effectuated; yet, only seconds had passed between the time consent was requested and the purpose effectuated. This is not a situation wherein appellant was detained for minutes or hours prior to broaching the matter of consent. In other words, the effectuation of the stop and the request for consent were rather contemporaneous here. Thus, we view the situation as falling within the scope of James and Strauss and, consequently, lawful.

As to the contention that his consent was involuntary, we note that to be of such ilk, it must be the product of duress or coercion, express or implied. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Moreover, the evidence of record here does not lend itself to such a claim. First, the initial detention was quite lawful; so, it cannot be said that appellant’s acquiescence was part and parcel of illegal conduct on the part of the trooper. Second, no evidence was presented at the suppression hearing that illustrated the officer told appellant he had to consent or that if he did not consent he would be arrested or otherwise detained. Nor is there evidence that the trooper implicitly or explicitly threatened appellant verbally or through gesture. Indeed, but for conduct on the part of appellant indicative of nervousness, the interaction between the two appeared routine for a traffic stop. Finally, that the officer failed to inform appellant that he could exit the patrol car and leave is alone insufficient criteria to illustrate coercion; again, an officer does not have to tell the individual he may leave once the purpose of the stop is completed. Vargas v. State, 18 S.W.3d at 252 n. 1.

In sum, the trial court did not abuse its discretion in overruling the motion to suppress. Accordingly, we overrule each of appellant’s issues and affirm the judgment of the trial court.

      . Appellant does not separately brief his federal and state constitutional claims, and we will therefore not separately address them.

      . At another point, Rejino testified that he received the criminal history report prior to issuing the warning. It was up to the trial court to resolve this inconsistency.


author: Justice ROSS.

text:
    Ex parte Julio MARTINEZ.
    No. 06-05-00208-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 26, 2005.
    Decided Sept. 27, 2005.

      Julio Martinez, Bryan, pro se.
    Bobby Lockhart, Dist. Atty., Texarkana, Elizabeth Alisse Goettert, Atty. Gen. Office-Post Conviction Litigation, Austin, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

On September 19, 2005, Julio Martinez filed with this Court an original application for writ of habeas corpus following his conviction for felony driving while intoxicated. See Tex.Code CRiM. Proc. Ann. art. 11.07 (Vernon 2005) (noncapital, post-conviction, felony writ application); and Tex. Pen.Code Ann. § 49.09 (Vernon Supp. 2004-2005). Martinez claims (1) he received ineffective assistance of counsel at trial, (2) he received ineffective assistance of counsel on appeal, and (3) the evidence is insufficient to support his conviction. We conclude we are not legally authorized to consider Martinez’ application for writ of habeas corpus, and we dismiss this original proceeding for want of jurisdiction.

I. Procedural History of the Underlying Felony DWI Conviction

On July 8, 2003, Martinez pled guilty in the 102nd Judicial District Court of Bowie County, Texas, to the offense of driving while intoxicated — subsequent offense. See Tex. Pen.Code Ann. § 49.04 (Vernon 2003), § 49.09. The terms of Martinez’ plea agreement called for his sentence to be set at ten years’ imprisonment, a plea agreement which the trial court accepted and followed. Martinez then timely appealed his conviction to this Court. Ultimately, this Court dismissed the appeal pursuant to Texas Rules of Appellate Procedure 25.2(a)(2), 25.2(d), and 37.1 because the trial court did not certify Martinez had the right to appeal. Martinez v. State, No. 06-03-00184-CR, slip op. at 2 (Tex.App.-Texarkana Nov. 4, 2003, pet. denied) (mem.op.) (not designated for publication). Our prior opinion did not address whether Martinez’ plea agreement would bar consideration of any potential appellate issues. Id.; and see Tex.Code CRiM. PROC. Ann. art. 26.13(a)(3) (Vernon Supp.2004-2005). .

II. The Procedural History of Martinez’ State and Federal Habeas Applications

The habeas record submitted by Martinez indicates he has filed an application for writ of habeas with the federal district court. See Martinez v. TDCJ, No. 5:04-CV-00240-DF-CMC (E.D.Tex.). The federal application apparently raises the same issues Martinez now presents in his state habeas application to this Court. The federal district court did not adjudicate the merits of Martinez’ application,, but instead issued a ninety-day stay during which Martinez must submit these to a state court for review. Cf. Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir.2001) (federal district judge has discretion to stay habeas application while applicant litigates unexhausted claim in state court); Delaney v. Matesanz, 264 F.3d 7, 15 n. 5 (1st Cir.2001) (recommending federal district courts follow stay procedure when confronted with claim that has not been previously reviewed by state court); Hill v. Anderson, 300 F.3d 679, 683 (6th Cir.2002) (adopting Zarvela approach to treatment of unexhausted Atkins claim). The Texas Court of Criminal Appeals has recently approved this two-forum procedure, modifying its previous prohibition against Texas district courts considering habeas applications when the applicant has an application simultaneously pending in federal court. Ex parte Soffar, 143 S.W.3d 804, 806-07 (Tex.Crim.App.2004) (modifying prohibition against parallel writs embodied by Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App.1972)).

III. This Court Lacks Jurisdiction To Review a Post-Conviction Writ Application

Our original and appellate jurisdiction is limited by the Texas Constitution and by statutes promulgated by the Texas Legislature and approved by the Governor. The Texas Constitution grants this Court original jurisdiction only in cases where specifically prescribed by law. Tex. Const, art. V, § 6. As it relates to the case now before us, we are not among the list of courts authorized to grant relief pursuant to post-conviction writs of habeas corpus. Tex.Code CRiM. PROC. Ann. art. 11.05 (Vernon 2005). We also are not authorized under Tex. Gov’t Code Ann. § 22.221 (Vernon Supp.2004) to consider an original, post-conviction application for writ of habeas corpus. Our law requires post-conviction applications for writs of ha-beas corpus, for felony cases in which the death penalty was not assessed, to be filed in the court of original conviction, made returnable to the Texas Court of Criminal Appeals. Tex.Code CRiM. PROC. Ann. art. 11.07(3)(a), (b) (Vernon 2005).

As we are without jurisdiction to consider Martinez’ originally-filed post-conviction application for writ of habeas corpus, we must dismiss his application. See Watson v. State, 96 S.W.3d 497, 500 (Tex.App.Amarillo 2002, pet. ref d) (dismissing two points of error within appeal of denial of motion for post-conviction DNA testing because those points of appeal amounted to request for original habeas relief, which intermediate appellate court was without jurisdiction to grant). If Martinez wishes to have his application reviewed by a state court of competent jurisdiction, his post-conviction application should be submitted to the court of original conviction, and he should make his application returnable to the Texas Court of Criminal Appeals in compliance with Tex.Code CRiM. Proc. Ann. art. 11.07 (Vernon 2005).

For the reason stated, we dismiss this proceeding for want of jurisdiction.

      . Martinez’ notice of appeal was received and filed by the trial court August 19, 2003, more than thirty days after the trial court imposed its sentence. However, under the "mailbox rule,” which provides that a document is timely filed if it is received within ten days after the filing deadline, Martinez’ notice of appeal would be considered timely because its receipt and filing was within ten days of the original due date provided for under our Rules of Appellate Procedure. See Tex.R.App. P. 9.2(b)(1).

      . Under the federal Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA”), see 28 U.S.C.A. § 2241 et seq. (West 1994 & Supp.2005), federal courts generally lack authority to grant habeas relief on claims that have not first been presented to, and rejected by, the state courts. Ex parte Soffar, 120 S.W.3d 344, 345 (Tex.Crim.App.2003).

      . The Texas Court of Criminal Appeals has mandated that a specific form be used for post-conviction habeas applications. See Tex R.App. P. appendix (instructions for 11.07 writ application accompanied by form to be used by applicant). Martinez’ current application does appear to comply with that form.


author: TERRIE LIVINGSTON, Justice.

text:
    David GREEN, Appellant, v. RANSOR, INC., Appellee.
    No. 2-04-211-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 29, 2005.

      Packard, Hood, Bednarz, Johnson & Ivy, L.L.P., Vance Edward Ivy, Amarillo, TX, for appellant.
    J. Kevin Carey, Justin Brown, Fort Worth, TX, for appellee.
    PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant David Green appeals from a summary judgment in favor of appellee Ransor, Inc. In one issue, appellant argues that the trial court erred by granting ap-pellee’s motion for summary judgment because appellee’s employee was in the course and scope of his employment when the accident occurred. We affirm in part and reverse and remand in part.

II. Background Facts

Appellee is a tower service company based in Schertz, Texas. In August 2002, appellee sent four of its employees to do a job in Clarendon, Texas. While there, one of appellee’s employees, Kerry Kittrell, was involved in an automobile accident with appellant. Kittrell, who was driving one of appellee’s trucks at the time of the accident, was charged with driving while intoxicated. Appellant sued appellee, alleging that appellee was vicariously liable for Kittrell’s negligence under the doctrine of respondeat superior. Appellant also sued appellee for negligent entrustment and negligent supervision. Appellee filed a motion for summary judgment, arguing that Kittrell was not in the course and scope of his employment at the time of the accident. Appellee also argued that Kitt-rell did not have permission to drive the truck at the time of the accident and did not have permission to drive the truck while drinking alcohol. The trial court granted appellee’s motion for summary judgment.

III. Summary Judgment

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TexR. Crv. P. 166a(e); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliottr-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiffs claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.

A. Respondeat Superior

Under the doctrine of respondeat superior, an employer is responsible for the negligence of an employee acting within the course and scope of his employment, even though the employer has not personally committed a wrong. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998); Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex.App.-Austin 2004, no pet.). To prove that an employee acted within the course and scope of employment, a plaintiff must show that the act was (1) within the general authority given to the employee, (2) in furtherance of the employer’s business, and (3) for the accomplishment of the object for which the employee was employed. Arbe-laez, 149 S.W.3d at 720. Appellee argues that Kittrell was not acting in furtherance of appellee’s business at the time of the accident. We agree.

Appellant argues that a presumption arose that Kittrell was acting within the course and scope of his employment because Kittrell was an employee driving a company vehicle at the time of the accident. See Salmon v. Hinojosa, 538 S.W.2d 22, 23 (Tex.Civ.App.-San Antonio 1976, no writ). But such a presumption is not evidence but rather a rule of procedure or an administrative assumption that is overcome when positive evidence to the contrary is introduced. Longoria v. Texaco, Inc., 649 S.W.2d 332, 334 (Tex.App.-Corpus Christi 1983, no writ). Thus, we must determine whether appellee presented summary judgment evidence sufficient to overcome the presumption and prove its entitlement to summary judgment.

In support of its motion, appellee presented the following evidence. The accident occurred around 9:30 p.m., and the report filed by the officer investigating the accident showed that Kittrell was charged with driving while intoxicated — although he refused to give any specimen for testing — and failure to stop and render aid. According to the affidavit of Randy Sor-rell, the president of appellee, the accident occurred “while ... Kittrell was intoxicated and after he had left a bar where he had ingested various alcoholic beverages,” and although Kittrell had permission to use the vehicle at the time of the accident “for the limited purpose of conducting the business of’ appellee, he did not have permission “to drive to or from a bar.” Ap-pellee also provided deposition testimony of its vice president, who stated that Kitt-rell “wasn’t supposed to be taking the vehicle out drinking.... Our company rules state that you go to work and you come back, and you go to the motel and go to sleep and get up and go to work.” Appellee further presented as summary judgment evidence a copy of its Employee Safety Manual, which provides that “operating company vehicles after the consumption of alcoholic beverages is strictly prohibited.” The manual also provides that employees are compensated for travel time “from the office to the job site, from job site to job site, or to and from suppliers for material and equipment delivery,” but not “from the hotel, home, or campground to the office or job site.” The manual further states that a company vehicle may be used for certain limited personal purposes after working hours, such as driving to a restaurant for meals or driving to a movie, but emphasizes that this limited permission is given only “so long as it [the activity] does not involve the consumption of alcoholic beverages.”

In opposing the motion for summary judgment, appellant argued that evidence of intoxication and violation of a company policy, standing alone, do not establish that an employee acted outside the course and scope of employment. See Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 777 (Tex.App.-Texarkana 1995, writ denied) (“The fact that an employee does an act that is unauthorized or that would not be approved by his employer does not mean that the employee was outside the scope of his employment. The employer is liable for the act of his employee, even if the specific act is unauthorized or contrary to express orders, so long as the act is done while the employee is acting within his general authority and for the benefit of the employer.”); G. & H. Equip. Co. v. Alexander, 533 S.W.2d 872, 876-77 (Tex.Civ.App.-Fort Worth 1976, no writ) (quoting 57 C.J.S. Master and Servant § 570 for the proposition that “ ‘[w]here an act inflicting an injury on a third person is committed by a servant acting within the scope of his authority, the fact that the servant ... was intoxicated at the time of inflicting the injury complained of does not exonerate the master from liability.’ ” (emphasis added)). He also argued that the “sole reason” appellee contended that Kitt-rell was not acting in the course and scope of his employment at the time of the accident was that Kittrell “allegedly violated company policy when he drove the company vehicle after consuming alcohol.”

We hold that the summary judgment evidence was sufficient to overcome the presumption that Kittrell was acting within the course and scope of his employment at the time of the accident and to meet appellee’s summary judgment burden of proving as a matter of law that Kittrell was not acting within the course and scope of his employment with appellee when the accident occurred. Appellee’s uncontro-verted evidence shows that not only did Kittrell violate company policy by driving the company truck while intoxicated, he also did not have the general authority — or permission from his employer — to drive the truck to or from a bar as he was at the time of the accident. See Andrews v. Houston Lighting & Power, 820 S.W.2d 411, 413 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (“[A]n employer is not liable for actions that an employee takes in his own interest and not to further the purpose of carrying out the master’s business.”).

Appellant notes that the accident report contains conflicting information regarding when the accident occurred; part of the report shows the accident occurred around 9:30 a.m. while another part shows the accident occurred around 9:30 p.m. Appellant argues that this conflict created a fact issue that should have precluded summary judgment against him on his negligence claim because the timing of the accident would determine whether it occurred during the workday or after hours. However, appellant alleged in his petition that the accident occurred around 9:30 p.m. An assertion of fact, not pled in the alternative, in the live pleadings of a party is regarded as a formal judicial admission, which bars the admitting party from later disputing the admitted fact. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.2001); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983). Therefore, appellant may not argue now that a fact issue exists as to whether the accident occurred around 9:30 a.m. or 9:30 p.m., having earlier alleged in his petition that the accident occurred around 9:30 p.m. Moreover, the only evidence in the record concerning work hours is from the Employee Safety Manual, which provides that when employees are doing fieldwork, the schedule will be set by the foreman. Thus, the discrepancy in the accident report does not raise a fact issue as to whether Kittrell was acting within the course and scope of his employment.

Because appellee established as a matter of law that Kittrell was not acting within the course and scope of his employment at the time of the accident, the trial court did not err by granting appellee’s motion for summary judgment on appellant’s negligence claim that was based on the theory of respondeat superior. We overrule appellant’s issue in part.

B. Negligent Entrustment and Negligent Supervision

Appellant argues that his negligent entrustment and negligent supervision claims should have survived appellee’s motion for summary judgment because they did not depend on whether Kittrell was acting in the course and scope of his employment at the time of the accident. We agree.

To establish negligent entrustment of an automobile, a plaintiff must show the following: (1) entrustment of a vehicle by the owner, (2) to an unlicensed, incompetent, or reckless driver, (3) whom the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver’s negligence proximately caused the accident. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987). To successfully prosecute a negligent supervision claim against an employer, a plaintiff must show that (1) the employer owed the plaintiff a legal duty to protect the plaintiff from the employee’s actions, and (2) the plaintiff sustained damages proximately caused by the employer’s breach of that legal duty. See Wrenn v. G.AT.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex.App.Fort Worth 2002, no pet.) (op. on reh’g). Neither claim depends on a finding that the employee or driver was acting in the course and scope of his employment when the tortious act occurred. Id.; see also LaRoque v. Sanchez, 641 S.W.2d 298, 300 (Tex.App.-El Paso 1982, writ ref'd n.r.e.) (distinguishing a “course and scope of employment case” from a negligent entrustment case). Thus, evidence showing that Kittrell was not acting in the course and scope of his employment does not defeat appellant’s negligent entrustment and negligent supervision claims as a matter of law.

Appellee argues that it presented evidence that Kittrell did not have permission to drive the vehicle in the manner in which he did and that such evidence is adequate to uphold summary judgment on appellant’s negligent entrustment claim. Appellant contends that a defendant cannot entrust a vehicle to someone without granting permission to use it. Appellant cites Batte v. Hendricks, a negligent en-trustment case in which the defendant moved for summary judgment, arguing, among other things, that she had revoked her permission for the driver to drive her car prior to the accident. 137 S.W.3d 790, 790 (Tex.App.-Dallas 2004, pet. denied). But the Dallas Court of Appeals did not address this argument. Instead, the court upheld the summary judgment because there was no issue as to whether the defendant knew or should have known that the driver was an unlicensed, incompetent, or reckless driver. Id. at 791-92. Moreover, a defendant may not avoid liability for negligent entrustment by showing that the driver did not have permission to drive the vehicle at the time and place of the accident. LaRoque, 641 S.W.2d at 300-01 (citing, e.g., Spratling v. Butler, 150 Tex. 369, 240 S.W.2d 1016, 1017 (1951) (holding that whether driver was on a mission of his own and had no permission to be driving at time of accident was “without significance in a case of negligent entrustment”)). Accordingly, whether or not Kittrell had deviated from the scope of appellee’s permission is irrelevant to appellant’s negligent entrustment claim.

Appellee’s motion for summary judgment was based solely on the contention that it had proved as a matter of law that Kittrell was not acting within the course and scope of his employment at the time of the accident. Because proof of that contention is irrelevant to, and thus cannot defeat, appellant’s negligent entrustment and negligent supervision claims, appellee presented no evidence showing that it was entitled to summary judgment on those claims. Therefore, because appellee did not present summary judgment evidence that negated an element of appellant’s negligent supervision and negligent entrustment claims, the trial court erred by granting summary judgment in favor of appellee on those claims. We sustain appellant’s issue in part.

IV. Conclusion

We affirm the part of the trial court’s order granting summary judgment on appellant’s negligence claim based on respon-deat superior and reverse the part of the order granting summary judgment on appellant’s negligent supervision and negligent entrustment claims. We remand those claims to the trial court for proceedings in accordance with this opinion.

      . See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204, 206-07 (Tex.2001) (explaining that summary judgment order may be final even if it grants more relief than party is entitled to); see also TexR.App. P. 43.2(a), (d) (providing that appellate court may affirm a judgment in part and reverse and remand it in part); Reynolds v. Murphy, No. 02-03-00294 — CV, 2005 WL 1654992, at *1 (Tex.App.-Fort Worth, July 14, 2005, no pet. h.) (affirming summary judgment in part and reversing and remanding in part).


text:
    In the Interest of R.T.H.
    No. 2-04-356-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 29, 2005.

      Bob O’Donnell, Garland, for appellant.
    William H. Sargeant, Arlington, for ap-pellee.
    Panel F: LIVINGSTON, HOLMAN, and GARDNER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Introduction and Procedural Background

Appellant Steve H. appeals the trial court’s order denying his petition to modify an Agreed Order of Parentage as to R.T.H. Appellant is a joint managing eon-servator of R.T.H. along with R.T.H.’s mother, appellee Cynthia W., who has the exclusive right to determine R.T.H.’s primary residence within Tarrant County and contiguous counties. Appellant did not seek a change in the joint managing conservator status of the parties; instead, he sought to be named the joint managing conservator with the exclusive right to determine R.T.H.’s primary residence. In three points, appellant contends that the trial court erred by denying his petition because the retention of appellee as the parent with the exclusive right to establish R.T.H.’s primary residence is not supported by the evidence, is contrary to the law, and results in a possession order that does not protect R.T.H.’s safety and well-being.

All three of appellant’s points are based on his contention that the trial court was statutorily compelled to grant appellant the relief he sought because he presented “credible evidence ... of a history or pattern of past or present ... physical ... abuse” of appellant by appellee. Tex. Fam. Code Ann. § 153.004(b) (Vernon Supp. 2004-05). Section 153.004(b) of the family code provides that a trial court may not “appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present ... physical ... abuse by one parent directed against the other parent.” Id. (emphasis added).

Factual Background

Appellant testified that on March 19, 2000, appellee came to his apartment and assaulted him by “punching [him] and grabbing [him] by the neck and scratching [him].” On cross-examination, appellant explained that appellee was trying to get in the door, and he was trying to keep her out. He pushed on the door while appellee was in between the doorframe and the door, but he “didn’t open [the door] any wider than probably eight inches.” R.T.H. did not see what happened because he was in the bathroom at the time with appellant’s then-girlfriend. Appellant had instructed her to take R.T.H. to the bathroom because he was afraid appellee would fry to take R.T.H. Appellee was arrested and taken to jail.

A magistrate issued a protective order against appellee in favor of appellant, and the 324th District Court of Tarrant County issued a subsequent protective order in which it found that appellee had committed family violence. The district court later vacated the protective order and replaced it with an agreed protective order that did not contain a finding of family violence.

Appellant also testified that appellee assaulted him two other times, but he did not give any details regarding these assaults, nor did he say when any of these assaults occurred.

Appellee testified that when she went to appellant’s apartment on March 19, 2000, he tried to shut the door, and she tried to open it. She was not able to get in the door. According to appellee, appellant “was pushing the door back on me, shoving me.” When asked, “Did you shove back?” and “Did you hit back?”, appellee answered ‘Yes.” As a result, appellee pleaded no contest to criminal trespass and was placed on deferred adjudication. In the final social study prepared for the court, the caseworker noted that appellee “admits hitting” appellant on March 19, 2000.

Effect of Family Violence Finding in Modification Proceeding

Appellant contends that the trial court’s denial of his motion to modify is contrary to family code section 153.004, which requires the trial court to take a history of domestic violence into account when making conservatorship and possession determinations. Tex. Fam.Code Ann. § 153.004(b). A single act of violence or abuse can constitute a “history” of physical abuse for purposes of section 153.004(b). In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex.App.-Amarillo 2004, no pet.). But section 153.004(b) prohibits the trial court from appointing joint managing conservators “if credible evidence is presented of a history or pattern of past or present ... physical ... abuse by one parent directed against the other parent.” Tex. Fam.Code Ann. § 153.004(b). Here, the Agreed Order of Parentage already named both parties joint managing conservators, and appellant was seeking only to alter the designation of the parent with the exclusive right to determine the child’s primary residence.

Family code section 156.101 provides that a trial court may modify an order appointing conservators and establishing conditions of conservatorship if (1) modification would be in the best interest of the child and (2) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the ... date of the rendition of the order.” Id. § 156.101(1)(A) (Vernon Supp.2004-05). An order deferring adjudication of a joint managing conservator for an offense involving family violence “is a material and substantial change of circumstances sufficient to justify ... modification of an existing court order.” Id. § 156.1045(a) (Vernon 2002) (emphasis added).

Thus, if the trial court had named appellant as the parent with the exclusive right to determine R.T.H.’s primary residence, evidence that appellee was placed on deferred adjudication for the March 19, 2000 incident would be sufficient to support the modification. But section 156.1045 does not compel the trial court to modify an existing order in such a circumstance. See id. In a modification proceeding, the best interest of the child must always be the trial court’s primary concern. Id. §§ 153.002 (Vernon 2002), 156.101; In re Hood, 113 S.W.3d 525, 529 (Tex.App.-Houston [1st Dist.] 2003, orig. proceeding).

Here, the evidence supports the trial court’s implied finding that the denial of appellant’s petition is in R.T.H.’s best interest. Appellee presented evidence that she had successfully completed her deferred adjudication community supervision and that she had attended and successfully completed batterer’s intervention and parenting classes. The social study prepared for the court took the March 19, 2000 incident into consideration in recommending that the parties’ current conser-vatorship designations be retained. Specifically, the caseworker concluded that

[R.T.H.] should continue to live with his mother, with his father having generous visitation. He has lived with his mother since his birth and now has a brother in his mother’s home. There should be very compelling reasons to warrant moving a six year old child from the home he has always lived in. The allegations made by the father are not substantial enough to warrant such a move, even though the father wants to provide a home for him. The mother is currently more stable than she may have been in years, having a husband, new baby, and being able to stay home with the children.

Thus, applying the appropriate standard of review, we hold that the trial court did not abuse its discretion by denying appellant’s petition to modify the Agreed Order of Parentage.

Conclusion

We overrule appellant’s three points and affirm the trial court’s judgment.

      . In addition to adjudicating R.T.H. the child of Steve H., the order established terms and conditions of conservatorship of R.T.H.

      . Appellant does not challenge the evidence on best interest grounds, arguing instead that the trial court was statutorily compelled to grant him the relief he requested.

      . Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (holding that judgment of trial court as to best interest of child in determining conservatorship will not be reversed absent abuse of discretion); Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.) (reviewing trial court's denial of modification for abuse of discretion); see also In re Z.B.P., 109 S.W.3d 772, 777 n. 2 (Tex.App.Fort Worth 2003, no pet.) ("[Ljegal and factual sufficiency are not independent grounds for review in modification cases, but are only relevant factors in assessing whether the lower court abused its discretion.”).


author: Justice CARTER.

text:
    Aaron Dale WILLIAMSON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00072-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 20, 2005.
    Decided Oct. 4, 2005.

      Lew Dunn, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Aaron Dale Williamson appeals from his conviction by a jury on three counts of aggravated sexual assault on a child. Williamson pled guilty to the charges without a negotiated plea agreement, and a jury assessed punishment at life imprisonment and a $10,000.00 fine for each count. The trial court ordered consecutive sentences.

Williamson contends on appeal that consecutive sentences violate his constitutional rights against cruel and unusual punishment. Williamson did not object at trial to the sentence or to the cumulation of sentences based on constitutional grounds.

To preserve his complaint for appellate review, Williamson must have presented to the trial court a timely request, objection, or motion that stated the specific grounds for the desired ruling, if not apparent from the context. See Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (failure to complain to trial court about consecutive sentencing waived claim of error).

However, Williamson’s motion for new trial contains a contention that the sentence was disproportionate to the offense. This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679-80 (Tex.App.-Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.). However, as we have recently held, a motion for new trial, in this context, is an appropriate way to preserve the claim for review. Delacruz v. State, 167 S.W.3d 904 (Tex.App.-Texarkana 2005, no pet.).

Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973). However, in Jackson, 989 S.W.2d at 845, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd).

This case presents a different approach to this issue. Williamson does not argue that each individual sentence is excessive — rather, he argues that to stack three life terms is a violation of the constitutional prohibition against cruel and unusual punishment.

We first recognize that there is authority stating that the cumulation of sentences does not constitute cruel and unusual punishment. Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App.1984); Baird v. State, 455 S.W.2d 259 (Tex.Crim.App.1970); Quintana v. State, 111 S.W.2d 474, 480 (Tex.App.-Corpus Christi 1989, pet. ref'd). Baird, however, does not discuss the argument in any depth, but simply concludes that, because the Legislature authorized stacking, it was not unlawful. Stevens agreed with Baird, and the Quintana opinion did likewise. The Stevens court cited authority from the Nineteenth Century holding that a forerunner of the general statute allowing a court to choose whether sentences are cumulative or consecutive does not violate Article I, Section 13 of the Texas Constitution. See Tex. Const, art. I, § 13. Even Stevens, however, referred to a Fifth Circuit federal case as authority in connection with an Eighth Amendment claim, and provides little actual analysis of the issue. See Boerngen v. United States, 326 F.2d 326 (5th Cir.1964); Stevens, 667 S.W.2d at 538.

In this case, the consecutive sentence option was provided by Tex. Pen.Code Ann. § 3.03(b)(2)(A) (Vernon 2003). It provides the trial court with the option of choosing whether the sentences run concurrently or consecutively for convictions for multiple acts arising out of the same criminal episode for sexual offenses of this type.

Williamson acknowledges the authority, but argues that it is dated and not applicable given the most recent pronouncements of the United States Supreme Court and its changing analysis of what is proper. Specifically, Williamson refers to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and the language in that opinion recognizing the “evolving standards of decency that mark the progress of a maturing society” and their application to the determination of what punishments are so disproportionate as to be cruel and unusual. Id. at 1190. In that analysis, the United States Supreme Court also looked at international law and the treatment of juvenile offenders in other civilized countries. Likewise, Williamson directs us to the law of the International Criminal Court and the Federal Republic of Germany for consideration of “the evolving standards of decency....”

Williamson urges this Court to follow the same track in our analysis of the effect of incarcerating a person for three lifetimes. There is some logic, from the viewpoint of a punishment-based rather than a rehabilitation-based model, in sentencing a person to jail for three twenty-year terms for three separate charges. That logic is less apparent when the defendant with a single life is sent to jail for three consecutive life sentences. We also acknowledge, as counsel points out, that there is no unanimity world-wide about the imposition of consecutive sentences for multiple infractions committed during the same criminal episode.

We are not, however, convinced that theories have been adopted either by federal or by Texas courts that would lead to the conclusion that imposition of consecutive life sentences is cruel and unusual, or disproportionate to the offenses committed. In this case, we are confronted with three first-degree felony offenses, each of which the jury found to be deserving of a sentence of life imprisonment. The type of sexual offenses against a child are those for which the Legislature has explicitly allowed consecutive sentences.

As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.), our proportionality analysis is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292,103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530.

We cannot say that the imposition of consecutive sentences results in grossly disproportionate punishment for the offenses for which Williamson was convicted. Further, there is no evidence in the record comparing this result with others in the same jurisdiction for this situation, or those imposed on defendants in other jurisdictions who committed a series of similar offenses. See id. For all of those reasons, disproportionate sentencing has not been shown, and we conclude that, in the absence of direction from superior courts altering the standards of our analysis, the imposition of consecutive sentences under these facts is not cruel and unusual punishment.

We affirm the judgment.

      . We also acknowledge that this Court has followed this authority in an unpublished opinion. See Dixon v. State, No. 06-03-00200-CR, 2004 WL 1301224, at *1, 2004 Tex.App. LEXIS 5184, at *2 (Tex.App.-Texar-kana June 14, 2004, pet. ref'd) (mem.op.) (not designated for publication).

        . Tex.Code Crim. Proc. Ann. art. 42.08 (Vernon Supp.2004-2005).

      . The State points out that some standards for punishing those convicted of sexually abusing children are evolving toward harsher sentencing. Two states, Georgia and Louisiana, have recently provided that the death penalty may be assessed in cases involving the rape of a child. La.Rev.Stat. Ann. § 14:42(D)(2)(a) (2005); Ga.Code Ann. § 16-6-l(b) (2005). Texas has indicated a desire to more seriously punish those who sexually assault children by the passage of this law allowing consecutive sentences for certain sexual offenses. See Tex Pen.Code Ann. § 3.03 (Vernon 2003).