author: CATHERINE STONE, Justice.

text:
    In the Interest of M.P.M., S.N.M., and J.D.M., Minor Children.
    No. 04-04-00264-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 23, 2005.

      Mark L. Medley, Law Office of Mark L. Medley, P.C., San Antonio, for appellant.
    Christine Tharp, Robinson C. Ramsey, Langley & Banack, Inc., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Delia Monica Maher appeals the trial court’s order denying her motion for judgment of child support arrearage and refusing to find Stephen Maher, the appellee, in contempt. Delia raises three issues on appeal. She contends the evidence presented at trial was legally and factually insufficient to support the court’s finding that she voluntarily relinquished possession and control of her two oldest children, M.P.M. and S.N.M., to Stephen. Delia also contests the legal and factual sufficiency of the evidence supporting the trial court’s finding that Stephen was entitled to a child support offset. Lastly, Delia argues the trial court erred by improperly calculating the offset. In a cross-issue, Stephen requests a judgment against Delia for reimbursement of child support.

Factual and ProceduRal Background Delia and Stephen Maher were divorced in 2001. Pursuant to the divorce decree, Stephen was ordered to pay $1200 a month in child support and provide health insurance for the couple’s three children, M.P.M., S.N.M., and J.D.M. Delia and Stephen were appointed joint managing conservators of their children, with Delia retaining primary custody and Stephen entitled to possession during specified periods of time. In July 2002, M.P.M. went to stay with Stephen and continued to reside in his home until the court awarded Stephen primary custody in December 2003. The couple’s second oldest child, S.N.M., also resided with Stephen from March 2, 2003 until August 2003. Delia testified at trial that Stephen provided financial support for M.P.M. and S.N.M. while they were residing with him, and that she did not pay Stephen any child support for M.P.M. and S.N.M. Stephen continued to make $1200 child support payments to Delia until April 2003, one month after S.N.M. began living at his residence. Stephen ultimately reduced the amount of child support he was paying, and Delia filed pleadings, requesting the court to grant her a judgment in child support arrears and to hold Stephen in contempt.

As an affirmative defense, Stephen invoked section 157.008 of the Texas Family Code. Tex. Fam.Code Ann. § 157.008 (Vernon 2002) (providing that an obligor may plead as an affirmative defense to a motion for enforcement of child support that the obligee voluntarily relinquished to the obli-gor actual possession and control of a child). He testified that Delia voluntarily relinquished possession and control of M.P.M. by closing the door in her face, telling M.P.M. she did not live with her anymore, and informing Stephen she did not want M.P.M. to live with her. Delia denied she said these things, and testified she wanted M.P.M. to return. Stephen also testified that Delia voluntarily relinquished possession and control of S.N.M. by asking Stephen to pick up S.N.M. after telling S.N.M. to go live with her father. Delia testified that she wanted the children back, that Stephen kept them from her, and would not let them , speak with her on the telephone. Stephen denied that Delia asked for return of the children. Both testified that during the periods of time M.P.M. and S.N.M. resided with Stephen, the children visited and stayed overnight at Delia’s home on sporadic occasions. Both children were returned to Stephen’s residence after such visits.

To support his affirmative defense, Stephen testified about the time periods each child resided with him, and provided exhibits summarizing his testimony regarding expenses he incurred to support M.P.M. and S.N.M. The trial court determined that Stephen owed $6,443 in child support arrears, and that Delia had voluntarily relinquished possession and control of her two oldest children. The court determined that Stephen retained possession of M.P.M., and S.N.M. for a time period in excess of court-ordered possession and had provided actual support to the children during that time period. See id. § 157.008(a), (b). Stephen testified that he provided $9,898.41 in actual support of M.P.M. and S.N.M., and spent $2,433.17 on medical care during the period of voluntary relinquishment. Because Stephen provided actual support in excess of the arrears, the court offset Delia’s claim by $6,443, thus finding Stephen to be current in his support payments. Accordingly, the trial court denied Delia’s request for a judgment awarding a child support arrear-age and refused to hold Stephen in contempt.

STANDARD OF REVIEW

We review the trial court’s child support ruling under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In Re G.Z.B., 151 S.W.3d 627, 630 (Tex.App.-San Antonio 2004, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert, denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). “The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Id. at 242. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error. In re Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.). However, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. Id.

When reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the finding, disregarding all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). Anything more than a scintilla of evidence is legally sufficient to uphold the finding. Formosa Plastics Carp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

In conducting a factual sufficiency review, we consider and weigh all the evidence in a neutral light, and will sustain a factual sufficiency challenge only if we conclude that the evidence supporting the finding is so weak that the finding is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). As the trier of fact, the court determines the credibility of witnesses and the weight to be given their testimony, whether to believe or disbelieve all or any part of the testimony, and how to resolve any inconsistencies in the testimony. Lifsh/utz v. Lifshutz, 61 S.W.3d 511, 515 (Tex.App.-San Antonio 2001, pet. denied).

Sufficiency of the Evidence

In two issues on appeal, Delia argues there was insufficient evidence to support the trial court’s finding that she voluntarily relinquished possession and control of M.P.M. and S.N.M., and insufficient evidence to support a finding that Stephen was entitled to an offset against her claim for child support arrears.

A. Voluntary Relinquishment

Delia argues that the evidence does not support a finding that there was an affirmative agreement to relinquish possession and control of M.P.M. and S.N.M. under section 157.008(a) of the Texas Family Code, which provides:

An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement that the obligee voluntarily relinquished to the obligor actual possession and control of a child.

Tex. Fam.Code Ann. § 157.008(a). Delia relies on the Norman case, in which a three-judge plurality stated that the term “voluntary relinquishment” requires an affirmative agreement to give up the child; the statute requires more than evidence of a de facto change in residence to support a voluntary relinquishment finding. Norman, 683 S.W.2d at 550-51. Even if we assume, without deciding, that there must be an affirmative agreement to relinquish custody, the evidence in this case supports a finding that Delia affirmatively agreed to relinquish possession and control of M.P.M. and S.N.M.

There was testimony that Delia shut the door in M.P.M.’s face and informed the child she did not live with her anymore. There was also testimony that Delia asked Stephen to pick up S.N.M., told the child to go live with him, and did not request return of either child. Although Delia testified that she never agreed M.P.M. and S.N.M. could reside with their father and wanted the children to return, she did testify that the children came to visit her and spend the night on sporadic occasions, after which she would return them to Stephen’s residence. Viewing the evidence in a light most favorable to the finding, we cannot say the trial court erred in finding Delia voluntarily relinquished possession and control of M.P.M. and S.N.M. Davis, 752 S.W.2d at 522. Because we find there is more than a scintilla of evidence to support the trial court’s determination, we must uphold it. Formosa, 960 S.W.2d at 48.

In the alternative, Delia asserts that the evidence was factually insufficient to support the trial court’s voluntary relinquishment finding. Considering and weighing the evidence in a neutral light, we cannot say the evidence supporting the voluntary relinquishment finding was so weak as to be clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. Each side had testimony to support its position. The trial court, as the trier of fact, was authorized to resolve conflicts in the testimony and determine the credibility of the witnesses. Lifshutz, 61 S.W.3d at 515. We hold there was sufficient evidence for the trial court to make a finding that Delia relinquished possession and control of M.P.M. and S.N.M. during the months they resided with Stephen. Delia’s first issue is overruled.

B. Entitlement to Offset

In her second issue, Delia contends the evidence was insufficient to support the trial court’s finding of Stephen’s entitlement to an offset. The Family Code provides for an offset against the child support arrearage for actual support provided by the obligor during the period of excess possession. Tex. Fam.Code Ann. § 157.008(b), (d). The party claiming benefit under the statute bears the burden of proving that he had possession of the children for a time period in excess of the court-ordered periods of possession, and must provide the court with some evidence of his expenditures on the children. Id. § 157.008(b); Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex.App.-Tyler 2000, no writ). Delia argues that Stephen did not meet his burden because the summaries he provided to accompany his testimony regarding expenses were inadmissible under Tex.R. Evid. 1006 (allowing the contents of otherwise admissible voluminous writings to be presented in the form of a chart summary). Although Delia contends Stephen failed to meet his burden of proving the admissibility of the summaries under Rule 1006, she failed to object to the admissibility of the summaries at the trial on that basis. Tex.R.App. P. 33.1 (requiring a specific objection to preserve a complaint for appellate review). In fact, Delia’s counsel stated there was no objection to the exhibits as a short-hand rendition of Stephen’s testimony. Accordingly, we hold that Delia has waived this argument on appeal.

Stephen testified that he provided $9,898.41 in actual support of M.P.M. and S.N.M. while they resided with him and provided exhibits listing the expenditures made on behalf of M.P.M. and S.N..M. during the months they resided with him. Further, Delia conceded that Stephen provided full financial support to M.P.M. and S.N.M. during the months they resided with him. We conclude the evidence was sufficient to support a finding that Stephen provided actual support for M.P.M. and S.N.M. during the voluntary relinquishment, satisfying his burden under the Family Code. See In re S.L.M. and J.A.M., 97 S.W.3d 224, 235 (Tex.App.Amarillo 2002, no pet.) (holding that the obligor’s testimony regarding expenses, accompanied by a document setting out amounts expended for the child’s support, was sufficient evidence to support the trial court’s finding that the obligor provided actual support during the period of voluntary relinquishment). Delia’s second issue is overruled.

Calculation of the Offset

In her third issue, Delia argues that the trial court erred in applying the evidence and the law in calculating the offset. We must determine whether the trial court erred by improperly calculating Stephen’s offset, examining: a) whether Stephen was required to itemize his expenses to account for his expenditures on the children, rather than allocating percentages of household expenses to each child; b) whether Stephen was improperly granted credit for support he provided on days within the period of voluntary relinquishment on which he otherwise had court-ordered possession of the children; c) whether the arrearage and actual support must be reconciled on a calendar year basis; d) whether actual support provided to two children can be used to offset the entire amount of child support owed in support of three children; and e) whether Stephen presented sufficient evidence that he provided medical insurance during the voluntary relinquishment, thus establishing his right to an offset for medical expenses.

A. Itemized Listing of Expenses INCURRED in Support of the Children

Delia argues that it was improper for Stephen to present to the court percentages of household expenditures rather than an itemized listing of expenditures made on behalf of the children to support his affirmative defense that he was entitled to an offset for the full $6,443 arrearage. Under Deha’s theory, the obligor would be unable to allocate percentages of household expenditures to prove his actual, direct support to the children residing with him. For instance, if one child was residing with the obligor, it would be impermissible for the obligor to allocate 50% of the grocery bill for support of that child; the obligor would be required to examine the grocery list and itemize every specific item purchased for the child. Deha does not cite any case law to support her argument and our research did not reveal any case law that requires an obligor to provide an itemized listing of expenses to prove his actual support of the children under section 157.008(b) of the Family Code. Indeed, Delia’s argument has already been examined and rejected. See Rinehold v. Rinehold, 790 S.W.2d 404, 406 (Tex.App.Houston [14th Dist.] 1990), rev’d on other grounds 924 S.W.2d 366 (Tex.1996). In Rinehold, the court of appeals held that the obligor’s evidence of household expenses for the period in which his child resided with him, divided by the number of persons in the household, provided evidence of actual expenditures for the child sufficient to sustain the trial court’s offset against the obligee’s claimed arrearage.

Finally, we note that Stephen sought offset for actual expenses he incurred such as increased groceries, increased utilities, medical expenses, and clothing. He did not seek any offset for expenses he would have incurred regardless of whether his daughters were living with him, e.g., rent or mortgage payments. In light of Stephen’s limited request, we cannot say the trial court abused its discretion. Delia’s argument that Stephen was required to give an itemized accounting of expenditures rather than allocating percentages of household expenses in support of the children is therefore overruled.

B. Segregation of Expenses According to Periods of Possession

Delia contends that the trial court erred by crediting Stephen for actual support he provided M.P.M. and S.N.M. during the period of voluntary relinquishment on days which he ordinarily would be entitled to possession of the children pursuant to the divorce decree. In order to prevail on an affirmative defense under section 157.008 of the Family Code, an obligor must show that the obligee voluntarily relinquished possession and control of the children, and “the voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.” Tex. Fam.Code. Ann. § 157.008(a), (b). Under subsection (d), “[a]n obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.” Id. § 157.008(d) (emphasis added). Delia argues that subsection (d) requires the obligor to construct a daily segregation of the amounts of actual support he provided the children, segregating the support provided on days during the period of voluntary relinquishment in which he would ordinarily be entitled to access and possession of the children.

In construing a statute, our primary objective is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.Bd 741, 745 (Tex.2003) (citing Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). We begin with the plain and common meaning of the statute’s words, and if the language is unambiguous, we interpret the statute according to its plain meaning. Id. (quotations omitted); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985) (“Unless a statute is ambiguous, we must follow the clear language of the statute” and take statutes as we find them). We should also consider the consequences that would follow from a particular construction of a statute. Tex. Gov’t Code Ann. § 311.023(5) (Vernon 1998). Furthermore, interpretations of statutes which would produce “absurd” results are to be avoided. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991).

By the plain language of the statute, the time subject to the affirmative defense is the period of voluntary relinquishment. The voluntary relinquishment itself must be for a time period in excess of any court-ordered periods of possession, but we do not read the statute to impose a segregation of actual costs incurred during the voluntary relinquishment period under subsection (d). Under Delia’s construction of the statute, obligors would be required to segregate receipts and any other evidence of actual support day by day, hour by hour, in order to account for times the obligor, in the absence of the voluntary relinquishment, would normally have been entitled to access and possession of the child. We believe such a construction would lead to absurd results and be contrary to the statute’s intent, i.e., to allow reimbursement or offset for actual support provided by the obligor, who has acquired primary custody of the child through the obligee’s voluntary relinquishment. Noot-sie, Ltd. v. Williamson County. Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996) (interpretations of a statute that would defeat its purpose must be rejected so long as another reasonable interpretation exists). We overrule this portion of Delia’s argument and conclude the trial court did not err in allowing reimbursement by way of offset for support actually provided by Stephen during the periods he had possession of M.P.M. and S.N.M. due to Delia’s voluntary relinquishment.

C. Calculation of the Arrearage on an Annual Basis

Delia asserts that the trial court erred by allowing actual support provided by Stephen in 2002 to offset his 2003 child support arrearage. Delia contends the trial court was required to reconcile the arrearage and actual support on a calendar year basis alone. Delia argues that if arrearage is not calculated to be offset on an annual basis, previous monies paid by an obligor years after a child comes to live with the obligor could be used to offset prior years’ court ordered obligation. However, Deha has not produced any authority for this interpretation of section 157.008(d) of the Family Code, and our research fails to yield any support for the argument that the Code requires offset to be calculated on an annual basis alone. Therefore, we conclude the trial court did not act arbitrarily or unreasonably, or without reference to guiding principles of the Family Code. Downer, 701 S.W.2d at 241 (a trial court abuses its discretion when it acts without regard to any guiding rules or principles). We overrule this argument and conclude the trial court did not abuse its discretion by not calculating the offset on an annual basis.

D. Calculation of Offset for Support Obligation of Multiple Children

Delia contends the trial court erred by calculating the. offset so as to eliminate Stephen’s court-ordered child support for J.D.M., the parties’ youngest child who continued to reside with Delia. Deha argues that when multiple children are the subject of a child support order, the expenses for some cannot offset the duty of - support for the entire group of children. Deha does not cite any authority for this argument, which has already been heard and rejected by one of our sister courts. See In re S.L.M., 97 S.W.3d at 236 (finding that the amount of the obhgor’s offset was not limited to support for one child who resided with him when the court’s order had not apportioned the obh-gor’s child support order between the two children). While Delia’s argument may be applicable to cases in which the child support is ordered as an amount per child, see Lewis v. Lewis, 853 S.W.2d 850 (Tex.App.Houston [14th Dist.] 1993, no writ) (obligor was ordered to pay $600 child support for each child, and was thus limited to $600 per month offset for the one child that was relinquished to his care and possession), that is not the type of order found in this case. Therefore, we overrule this argument.

E. Medical Expenses

With regard to medical expenses, Delia contends Stephen presented insufficient evidence that he provided medical insurance for the children during the period of voluntary relinquishment and thus was not entitled to offset the children’s medical bills. The trial court found that Delia owed Stephen for half of the medical expenses ($1,216.58) and offset the arrear-age. Delia argues this was error because the divorce decree orders Stephen to maintain health insurance on all three children, and also provides:

A PARENT ORDERED TO PROVIDE HEALTH INSURANCE WHO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILDREN, WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN PAID IF HEALTH' INSURANCE HAD BEEN PROVIDED.

The divorce decree further provides that the party providing health insurance is entitled to reimbursement from the other party for any uninsured medical expenses. Stephen conceded that the children were not covered by health insurance at the time of the hearing, but testified they had last been covered by his health insurance in November 2003. Exhibit five reflects that Stephen was paying $158 monthly to maintain health insurance on the children during 2003. There is more than a scintilla of evidence to support the finding that Stephen provided health insurance in 2003. See Formosa, 960 S.W.2d at 48. However, Stephen did not testify that he provided health insurance for the children in 2002, and he offered no documentary evidence to support the conclusion that the children were covered by medical insurance in 2002. Thus, we conclude the evidence was insufficient to establish that the children were covered by medical insurance in 2002.

Further, we conclude it was error for the court to grant Stephen credit for one-half of the medical expenses incurred in 2003 because he did not provide any testimony or evidence as to which medical expenses were not covered by the health insurance plan, which would have triggered Delia’s obligation to reimburse. Thus, the trial court’s finding that Stephen is entitled to a $1,216.58 credit against the arrearage is not supported by the evidence, and Stephen is not entitled to the $1,216.58 credit. We sustain Delia’s sufficiency challenge regarding the medical expenses. Because we sustain this issue, we modify the trial court’s judgment under Tex.R.App. P. 43.2(b) to delete the following portion of the trial court’s judgment:

All medical expenses set out in Exhibit “A” and those medical expenses for which no receipts were available and incurred during STEVE MAHER’S actual possession of the children which were paid by STEVE MAHER are considered as part of the offset. Therefore the one-half owed by DELIA MAHER to STEVE MAHER is considered paid.

However, because Stephen provided sufficient evidence that he provided $9,898.41 in direct, actual support of M.P.M. and S.N.M., and this amount exceeds the child support arrearage of $6,443, sustaining this issue does not require reversal of the judgment. See Tex.R.App. P. 44.1(a)(1) (providing that no judgment shall be reversed on appeal unless the trial court’s error “probably resulted in the rendition of an improper judgment”).

Cross-Issue

Stephen raises one cross-issue in his reply brief, contending the trial court erred by not granting him a judgment for reimbursement against Deha in the amount of $2,899.32, the amount of support the trial court found was provided in excess of Stephen’s child support obligation. Because Stephen did not file a separate notice of appeal, he has waived appellate review of his cross-issue. Tex.R.App. P. 25.1(c) (requiring a party who seeks to alter the trial court’s judgment to file a notice of appeal). Stephen’s cross-issue is overruled.

Conclusion

After reviewing the record, we conclude the evidence was legally and factually sufficient to support the trial court’s conclusion that Delia voluntarily relinquished possession and control of M.P.M. and S.N.M. to Stephen for a period in excess of his court-ordered periods of possession of the children. Further, the evidence presented at trial was sufficient to support the trial court’s conclusion that Stephen provided actual support to M.P.M. and S.N.M. during the period of voluntary relinquishment and thus was entitled to an offset against the arrearage. We sustain Delia’s sufficiency challenge to the court’s finding that Stephen was entitled to a credit for medical expenses he incurred for M.P.M. and S.N.M. while they resided with him, modify the judgment to delete that finding, and as modified, we affirm. Tex.R.App. P. 43.2(b).

      . Because an order refusing to find a party in contempt is not a final, appealable judgment, this court lacks jurisdiction to rule upon Delia’s request for a reversal of the trial court’s decision to deny Delia’s motion for contempt. See Norman v. Norman, 692 S.W.2d 655 (Tex. 1985) (holding that the court of appeals did not have jurisdiction over an order refusing to find an obligor in contempt for child support arrearage).

      . In October 2003, the court revised Stephen’s child support payment. Effective October 1, 2003, Stephen is required to pay Delia $275 per month in child support for S.N.M. and J.D.M., who reside with their mother.

      . Delia complains that finding of fact number 18 awards Stephen an "approximate” credit of $9,898.41 in actual support of M.P.M. and S.N.M. during the period of voluntary relinquishment. Assuming the trial court erred in awarding an “approximate” credit, this is not harmful error. Tex.R.App. P. 44.1(a)(1), (2) (a judgment shall not be reversed on appeal unless the error "probably resulted in the rendition of an improper judgment," or "probably prevented the appellant from properly presenting the case to the court of appeals”). Therefore, we overrule this argument.

      . The divorce decree provides for specific time periods and occasions' on which Stephen is entitled to possession of the children. In summary, the decree provides that Stephen is entitled to possession of the children during the school year on the first and third Wednesdays of each month, through the following Monday; on the second and fourth Wednesdays of each month, ending at the time the children’s school or daycare resumes on the following Friday; and on the fifth Wednesdays of each month, through the following Monday. During the summer, Stephen is entitled to possession of the children for 30 days, provided he furnishes Delia with a written request by April 1st of that year (without written request, he is entitled to summer possession for 30 days during the month of July). Regarding holidays, Stephen is entitled to possession of the children, in even-numbered years, from the first day of the children’s Christmas vacation until December 26th; in odd-numbered years, Stephen is entitled to possession from December 26th until the day before the children’s school resumes from Christmas vacation. Stephen is also entitled to possession of the children on Thanksgiving Day in odd-numbered years; Spring Break in even-numbered years; and Father's Day weekend on an annual basis. The decree further breaks down Stephen’s court-ordered possession to times of the day: he is only entitled to possession on the specified days by a certain time, and must return the children to Delia by a specified time (e.g. 6:00 p.m.).

      . We respectfully disagree with the Corpus Christi Court of Appeals’ recent decision, In the Interest of G.V., III, R.N.V., and S.A.V., No. 13-03-026-CV, 2004 WL 1909417, at *4 (Tex. App.-Corpus Christi 2004, no pet.) (not designated for publication) (holding that the obli-gor improperly received credit for actual support provided during the summer month he ordinarily has court-ordered possession of the child). As stated previously, we do not read the statute to impose a requirement that the obligor segregate his proof of actual support to take into account days which he ordinarily is entitled to possession of the child once the obligee has voluntarily relinquished possession and control of the child to the obligor.


source: Caselaw Access Project

author: JIM R. WRIGHT, Justice.

license: Public Domain

text:
    James S. KING, Appellant, v. FIRST NATIONAL BANK OF BAIRD, Appellee.
    No. 11-04-00037-CV.
    Court of Appeals of Texas, Eastland.
    March 3, 2005.

      James S. King, Abilene, pro se.
    Charles C. Self, III, Whitten & Young, Abilene, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and MeCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

James S. King appeals the order of the trial court granting the First National Bank of Baird’s motion for sanctions against him. We affirm.

Over the course of three decades and four lawsuits, appellant has litigated the ownership of a tract of land in Callahan County. The property once belonged to appellant, but his ownership ended on August 5, 1986, in foreclosure proceedings brought by the Bank. The Bank sold the property to James C. Tollett and Henry P. Thompson. Subsequently, Tollett and Thompson sold the property to Myrtle Ann Cunningham. When Cunningham died, the property was sold to Michael Jones and his wife, Rebecca Davis Jones.

In three prior lawsuits dating back to 1989, appellant has in turn sued the Bank and its trustees; the Bank, Tollett, Thompson, Cunningham, and Russell Wade Holland (the executor of Cunningham’s estate); and the Bank, Michael Jones, and Rebecca Davis Jones. In each suit, the trial court ruled against appellant, granting motions for summary judgment in the first two suits and a motion for sanctions in the third suit. This court has affirmed the judgment of the trial court in each of the three prior lawsuits.

In 2003, appellant sued again. This time, appellant turned his attention to the Bank, alleging that it had deprived him of his property without due process of law. The Bank filed a motion for sanctions against appellant, and a hearing was held on November 6, 2003. The trial court found that appellant’s suit was groundless and brought in bad faith. The court sanctioned appellant in the amount of $5,000 and barred him from filing any further lawsuits against the Bank concerning the property in question until he complied with the sanction order.

Appellant first asserts that he was denied the right to a trial by jury. We disagree. Texas law gives parties to both civil and criminal actions the right to request a trial by jury. TEX.R.CIV.P. 216(a); see Perez v. State, 11 S.W.3d 218, 222 (Tex.Cr.App.2000). Appellant’s case, however, was dismissed prior to trial. There is no law in Texas that entitles appellant to a jury on pretrial matters, such as a motion for sanctions. Appellant’s first point of error is overruled.

In his next two arguments, appellant asserts that the order for sanctions is unsupported by evidence. We disagree. Trial courts are authorized to impose sanctions against an attorney, a represented party, or both who file a pleading that is groundless and brought in bad faith or to harass. TEX.R.CIV.P. 13; see GTE Communications Systems Corporation v. Tanner, 856 S.W.2d 725, 730 (Tex.1993). “Groundless” means no basis in law or fact and not warranted by a good faith argument for the extension, modification, or reversal of existing law. Rule 13.

The imposition of Rule 13 sanctions is within the discretion of the trial court; thus, we set aside its decision only on a showing of a clear abuse of discretion. Cone v. Fagadau Energy Corporation, 68 S.W.3d 147, 165 (Tex.App.-Eastland 2001, pet’n den’d). When imposing Rule 13 sanctions, the trial court is required to make particularized findings of good cause justifying the sanctions. Cone v. Fagadau Energy Corporation, supra at 166. Failure to comply with this clear directive is an abuse of discretion. Cone v. Fagadau Energy Corporation, supra.

The trial court made the following findings of good cause justifying the sanc-

tions: (1) appellant’s suit was groundless and brought in bad faith; (2) appellant’s lawsuit was false; (3) appellant was not the owner of the property in question, and his lack of ownership had already been determined in two prior separate lawsuits; (4) appellant’s lawsuit had no basis in fact; (5) appellant’s lawsuit was not warranted by existing good law or a good argument; (6) there was no reasonable probability that appellant would prevail; (7) prior litigation on the same subject matter had previously been brought by appellant, and his suit was an attempt to relitigate the same claims previously determined; (8) appellant had sued every owner of the property at issue since he lost title by foreclosure in August 1986; (9) appellant had previously been sanctioned for bringing a frivolous lawsuit; and (10) appellant was a “vexious litigant” (sic).

The trial court did not abuse its discretion. Its decision to sanction appellant for bringing a groundless lawsuit in bad faith was reasonable in view of the history of the litigation surrounding the property at issue. Appellant’s second and third points of error are overruled.

Finally, appellant asserts that the trial court erred in failing to hold a trial on the “underlying merits of the case.” We disagree. By finding that appellant’s suit was groundless, false, and not warranted by existing law, it can reasonably be inferred that the trial court found the case to be without merit. The order granting the Bank’s motion for sanctions and dismissing appellant’s suit was a final judgment. See First Nat. Bank of Houston v. Fox, 121 Tex. 7, 39 S.W.2d 1085, 1086 (1931). Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.

      . Appellate Cause Nos. 11-94-00062-CV, 11-99-00325-CV, and 11-01-00177-CV.


author: TERRIE LIVINGSTON, Justice.

text:
    Leslie Joe GARRETT, Appellant, v. The STATE of Texas.
    No. 2-04-113-CR.
    Court of Appeals of Texas, Fort Worth.
    March 3, 2005.
    Rehearing Overruled March 24, 2005.

      Mick Meyer, Denton, TX, for Appellant.
    Bruce Isaacks, Criminal District Attorney, Charles E. Orbison, Earl Dobson, Rick Daniel, Jeff Fleming, Assistant Criminal District Attorneys, Denton, Matthew Paul, State Prosecuting Attorney, Austin, for State.
    PANEL B: LIVINGSTON, DAUPHINOT, and GARDNER JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Leslie Joe Garrett appeals from his conviction by a jury for the offense of possession of a controlled substance with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003). In four points, he argues that (1) the trial court erred in proceeding with a defective charging instrument, (2) the evidence is legally insufficient to support his conviction for possession with intent to deliver a controlled substance, (3) the evidence is factually insufficient to support his conviction for possession with intent to deliver a controlled substance, and (4) the trial court improperly admitted punishment evidence. Because we hold that the evidence is legally insufficient to prove intent to deliver, we reform the judgment to reflect conviction of the lesser-included offense of possession and affirm the judgment of guilt as reformed. We reverse the judgment as to punishment and remand the case for a new hearing on punishment.

Facts

Aikeysha Callandret lived at 1900 Bernard Street in Denton, Texas with her two children and her mother, Althea Parker. On November 5, 2002, Denton police used an informant to make a “controlled buy” of crack cocaine from Callandret at her Bernard Street residence. Two days later, police executed a search warrant on the residence after conducting a second controlled buy. Appellant was at the residence during both controlled buys.

As part of the warrant’s execution, an “entry team” attempted to enter the house by using a battering ram to break down the front door. Because the front door was heavily fortified, the entry team was unable to break it down despite several attempts. Instead, they had to enter through a window to the left of the front door.

Officer Keith Olsen was instructed to “port and cover” the bathroom window while the entry team entered the house. According to the plan, just before the entry team entered the house, Officer Olsen was to break the bathroom window and cover the bathroom to make sure no one flushed evidence down the toilet. Officer Olsen testified that he was a few seconds late getting to the bathroom window. He rushed to the window after he heard the entry team attempting to enter through the front door and saw the bathroom light come on. Officer Olsen broke the window with his rifle and saw appellant and Cal-landret throwing cellophane baggies into the toilet. Officer Olsen testified that he ordered appellant and Callandret back and that he had to push appellant back after appellant attempted to flush the toilet. Police arrested appellant and Callandret and recovered from the toilet several baggies containing a total of 9.4 grams of a substance containing crack cocaine.

In addition to the crack cocaine recovered from the toilet, police recovered two baggies of crack from other rooms in the house. Police also found in the house two baggies of marijuana, a soft case containing marijuana-laced cigars, three baggies of ecstasy tablets, a digital scale, a knife with residue, currency, and a handgun with ammunition. Police found three baggies of crack cocaine and currency on Cal-landret.

Appellant was charged with possession with intent to deliver a controlled substance, cocaine, in an amount of four grams or more but less than two hundred grams by aggregate weight including any adulterants or dilutants. The original indictment was filed August 14, 2003 and listed an offense date of November 7, 2003. On December 18, 2003, the State filed a notice of intent to use a prior felony conviction for enhancement purposes, alleging a prior conviction for burglary of a habitation on July 11, 2000. Five days later, the State filed a notice of intent to use evidence of other crimes, wrongs, or acts pursuant to article 37.07, rule 404(b), or rule 609(f), alleging, among other things, the same burglary conviction alleged earlier but with an offense date of July 11,1999 and a correct conviction date of January 13, 2000.

Appellant filed a motion to quash the indictment on January 20, 2004, complaining about the impossible offense date of November 7, 2003 alleged in the original indictment and the manner in which the State sought to amend the indictment by adding the enhancement allegation. At the first of two hearings on February 6, 2004, the trial court took appellant’s motion under advisement and gave the State a chance to amend the indictment. Noting that appellant was entitled to ten days’ notice of an amendment to the indictment, the State announced that when the trial court heard its motion to amend later that day, it would urge the trial court to hold appellant’s bond insufficient pursuant to a motion the State claimed it had filed earlier. Rather than risk going to jail, appellant chose to waive his ten days’ notice and proceed with the original February 9 trial date.

At the second hearing on February 6, the State filed a motion to amend the indictment to include the correct offense date and an enhancement paragraph. Appellant again objected, arguing that the indictment was fundamentally defective and should be quashed and, in any event, the indictment should be amended only by physical alteration of the indictment itself. The trial court instead granted the State’s motion to amend and entered an order stating that the indictment was amended as set forth in the order and setting forth the amendment that contained the same language from the original indictment but with a correct offense date of November 7, 2002 and with an enhancement paragraph alleging a prior conviction for burglary of a habitation on the correct date of January 13, 2000.

On February 9, 2004, the State moved for a continuance because the prosecutor was sick. The trial court granted the motion and reset the trial for March 1. Appellant again objected to the indictment and asked for a ruling on his motion to quash. The court denied the motion as moot.

On March 1, before he was arraigned, appellant again objected to the indictment. The trial court responded that appellant was being arraigned from the amended indictment and overruled appellant’s objection. Both the State and appellant requested that the trial court include in its charge to the jury the lesser included offense of possession of a controlled substance. The trial court refused the requests and submitted a charge with no lesser included offenses.

The trial court, in its written charge and presumably in its oral charge to the jury, gave the incorrect offense date of November 7, 2003, the date in the original indictment. The court twice called the jury back from deliberating to correct the error. The jury found appellant guilty and assessed his punishment at twenty years’ confinement.

Indictment

In his first point, appellant argues that the trial court erred in proceeding with a defective charging instrument. He contends that because the indictment was fundamentally defective, the trial court erred when it denied his motion to quash.

In the alternative, appellant argues that the process by which the indictment was amended was improper because the State did not first get approval from the trial court before amending the indictment and because the State’s motion to amend did not contain the signature of the grand jury foreman.

Before 1985, an error in an indictment could not be amended if the error related to a “matter of substance.” See Ex parte Chance, 601 S.W.2d 356, 356 (Tex.Crim. App.1980) (holding that indictment alleging an impossible date had to be dismissed because the alleged date of the offense is a matter of substance). In 1985, the Texas Legislature amended article 28.10 of the Texas Code of Criminal Procedure to allow amendments to matters of form or substance. See Tex.Code CRiM. PROC. Ann. art. 28.10(a) (Vernon 1989). However, article 28.10(c) provides that an indictment may not be amended over the defendant’s objection “if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.” Id. art. 28.10(c).

Here, appellant cites no case in which an amendment to the date of the alleged offense or to the date of a conviction alleged in an enhancement paragraph is held to either charge a defendant with an additional or different offense or prejudice his substantial rights. Moreover, in Valenti v. State, we held that the trial court properly amended an indictment that had an incorrect conviction date in the enhancement paragraph. 49 S.W.3d 594, 598 (Tex.App. Port Worth 2001, no pet.). Therefore, we hold the trial court did not err in refusing to quash the indictment and allowing the State to amend.

Appellant also argues that the process by which the indictment was amended contravened existing law. Specifically, he

complains that the State did not obtain the trial court’s approval before amending the indictment and that the State’s motion to amend was not signed by the foreman of the grand jury. See Tex.Code Ceim. PROc. Ann. arts. 21.02, 28.11 (Vernon 1989).

Here, the State filed a motion to amend the indictment, and the trial court entered an order granting the motion and setting out the language of the original indictment but with a corrected offense date and with an enhancement paragraph. We conclude that by entering the order granting the State’s motion to amend the indictment, the trial court gave its approval as required by article 28.11. See id. art. 28.11. Moreover, article 21.02 does not require that the grand jury foreman sign the State’s motion to amend, only that he sign the original indictment. Id. art. 21.02; see also Riney v. State, 28 S.W.3d 561, 566 (Tex.Crim.App.2000) (holding that amended indictment did not require grand jury foreman’s signature). Therefore, we hold that the indictment was properly amended, and we overrule appellant’s first point.

Sufficiency

In his second and third points, appellant argues that the evidence is legally and factually insufficient to support his conviction for possession with intent to deliver. Appellant complains that the State (1) failed to prove that appellant had the intent to deliver, (2) failed to prove any of the substances recovered from the toilet were controlled substances, (3) failed to link any quantity of the substances to appellant, and (4) failed to prove any amount by aggregate weight including adulterants or dilutants.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim.App.2004).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code CRiM. PROC. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim.App.1999), cert, denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.App.2000).

In determining the legal sufficiency of the evidence to show appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim.App.1991).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

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

Intent to Deliver

Appellant argues the evidence is legally and factually insufficient to prove that he possessed the crack cocaine with an intent to deliver. We agree. Intent to deliver may be proven by circumstantial evidence. See Jordan v. State, 139 S.W.3d 723, 726 (Tex.App.-Fort Worth 2004, no pet.); Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref d). Courts have considered several factors in determining intent, including (1) the nature of the location where the defendant was arrested, (2) the quantity of drugs the defendant possessed, (3) the manner of packaging of the drugs, (4) the presence or absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a large amount of cash in addition to the drugs, and (6) the defendant’s status as a drug user. Jordan, 139 S.W.3d at 726.

Here, Callandret lived in the house where appellant was arrested. Callandret sold the informant crack cocaine during the two earlier controlled buys. The State offered no evidence linking appellant to the residence other than his mere presence, nor any evidence that appellant had currency or contraband on him when he was arrested. However, police did find currency and bags of crack cocaine on Callandret when she was arrested. The State offered no evidence linking appellant to the various items of evidence found throughout the house or to the automobiles parked outside the house. Police testified that appellant did not appear to be under the influence of narcotics when he was arrested.

Police observed appellant and Callan-dret attempting to destroy several bags of crack cocaine by flushing them down the toilet. In addition, appellant was and had been present in a house where drugs were sold. While this evidence is sufficient to show appellant possessed crack cocaine, it does not prove he had the intent to deliver. The evidence shows that Callandret was dealing crack at 1900 Bernard Street, but there is no evidence that appellant was also involved in dealing drugs, only that he attempted to dispose of them with Callan-dret. Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that no rational trier of fact could find beyond a reasonable doubt that appellant possessed crack cocaine with the intent to deliver.

Controlled Substance

Appellant also argues that the State failed to prove that any of the evidence recovered from the toilet contained a controlled substance. Kaye Davis, a chemist with the Department of Public Safety, testified that the evidence recovered from the toilet was cocaine. Appellant was convicted for violating section 481.112(a) of the Texas Health and Safety Code, which provides that “a person commits an offense if the person ... possesses with intent to deliver a controlled substance listed in Penalty Group 1.” See Tex. Health & Safety Code Ann. § 481.112(a). Section 481.102 lists cocaine as one of the controlled substances in Penalty Group I. Id. § 481.102 (Vernon Supp.2004-05) Therefore, we hold that the evidence is legally and factually sufficient to prove that the evidence recovered from the toilet was a controlled substance.

Amount by Aggregate Weight Including Adulterants and Dilutants

Appellant argues that the State failed to link him with any particular amount of controlled substance found in Callandret’s house. He also argues the State failed to prove the amount “by aggregate weight including any adulterants or dilutants.” An accused possesses a controlled substance when he exercises actual care, control, or custody over the substance; is conscious of his connection with the substance; and knows what the substance is. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). The evidence must show an “affirmative link” between the accused and the drugs he allegedly possessed. Id. To prove possession of a particular amount of a controlled substance, the State need only prove that “the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight.” Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App.2003).

Here, Officer Olsen testified that he saw appellant and Callandret throwing cellophane baggies into the toilet and that appellant reached to flush the toilet. A total of 9.4 grams of a substance that was later found to contain crack cocaine was recovered from the toilet. From this evidence, the jury could find that appellant exercised control over the crack cocaine in the toilet, knew of his connection to the crack cocaine, and knew the substance in the toilet was crack cocaine. Therefore, we hold that the State offered sufficient evidence affirmatively link appellant to the 9.4 grams of crack cocaine found in Callan-dret’s toilet and to support his possession of it. We sustain appellant’s second point as to the intent to deliver only.

Reformation of Judgment

A court of appeals may modify the trial court’s judgment to reflect guilt of a lesser-included offense and affirm it as modified. Tex.R.App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim. App.1993). However, the court may do this only if “(1) the court finds that the evidence is insufficient to support conviction of the charged offense but sufficient to support conviction of the lesser included offense and (2) either the jury was instructed on the lesser included offense ... or one of the parties asked for but was denied such an instruction.” Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999).

Here, while the evidence is insufficient to support appellant’s conviction for possession of a controlled substance with intent to deliver, it is sufficient to support a conviction for possession of a controlled substance. Further, both the State and appellant requested the trial court to instruct the jury on a lesser included offense. Accordingly, we will reform the judgment to reflect a conviction of the lesser included offense of possession of a controlled substance, cocaine, in an amount more than four grams but less than two hundred grams.

Remand on Punishment

Because we cannot assume that the jury would assess the same punishment for possession of a controlled substance enhanced by a previous felony conviction as it would for possession with intent to deliver enhanced by a previous felony conviction, we reverse the part of the judgment assessing punishment and remand the case for a new punishment hearing. See Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.Dallas 1994, pet. refd.). We do not address appellant’s fourth point, which involves alleged errors at the punishment phase of the trial. See Tex.R.App. P. 47.1.

Conclusion

We reform the judgment of guilt to reflect conviction of the lesser-included offense of possession of a controlled substance weighing between four and two hundred grams and affirm the judgment as reformed. We reverse the judgment as to punishment and remand the case to the trial court to conduct a new hearing on punishment.

      . The trial was originally set for February 9, 2004, the following Monday.

      . The record states only that "[t]he Court read aloud the charge of the court.”

      . Because we hold that the evidence is legally insufficient to prove intent to deliver, we need not address appellant’s third point on factual insufficiency. See Tex.R.App. P. 47.1.


author: BILL BASS, Justice.

text:
    CASTLE TEXAS PRODUCTION LIMITED PARTNERSHIP, et al, Appellants/Cross-Appellees, v. THE LONG TRUSTS, Appellees/Cross-Appellants.
    No. 12-01-00192-CV.
    Court of Appeals of Texas, Tyler.
    March 3, 2005.
    Drew R. Heard, Robert B. Gilbreath, Jenkens & Gilchrist, Dallas, for appellants/cross-appellees.
    F. Franklin Honea, Law Office of F. Franklin Honea, Dallas, Ron Adkison, Wellborn, Houston, Adkison, Mann, Sadler & Hill, L.L.P., Henderson, Mike Hatehell, Hatchell PC, Tyler, for appellees/cross-ap-pellants.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.
   ORDER DENYING APPELLEES/CROSS-APPELLANTS’ MOTION FOR CLARIFICATION OF MANDATE

BILL BASS, Justice.

The Long Trusts have filed a Motion for Clarification of Mandate and/or Judgment asking whether a motion for reconsolidation, a motion to abate, or other procedural motions may be considered by the trial court upon the remand of Castle’s counterclaim.

By opinion dated July 21, 2003, this court reversed that part of the trial court’s judgment awarding the Long Trusts recovery against Castle and remanded the Long Trusts’ breach of contract claims to the trial court for retrial of both the liability and damage issues. We affirmed the judgment for Castle subject to remittiturs, which Castle submitted. We held, however, that the trial court had not awarded Castle on its counterclaim the amount of prejudgment interest provided by the operating agreement. Therefore, we severed Castle’s counterclaim against the Long Trusts and ordered the trial court to recalculate prejudgment interest at twelve percent as specified in the joint operating agreement. The Texas Supreme Court denied the Long Trusts’ petition for review. See Castle Texas Prod. Ltd. P’ship v. Long Trusts, 134 S.W.3d 267, 288-89 (Tex.App.-Tyler 2003, pet. denied). On June 9, 2004, this court issued its mandate.

In its motion for clarification, the Long Trusts maintain that the claims asserted by Castle against the Long Trusts and the claims brought by the Long Trusts against Castle are “inter-dependent claims,” and that in the event the Long Trusts recover in the retrial of their claims against Castle, the severance of the cases will “deprive Long Trusts of the benefits of [Texas Rules of Civil Procedure] 97(c), 301, and 302, as well as their common law rights of recoupment and setoff.” The Long Trusts insist that despite the severance of the claims by this court, the trial court should have the discretion to reconsolidate the claims or take some other procedural action that would allow a single judgment to be entered disposing of the claims of both parties. The Long Trusts argue that they are entitled to have any recovery they may realize upon the retrial of their claims set off against Castle’s judgment on its counterclaim'. Therefore, the Long Trusts seek to “delay entry of a judgment in favor of Castle until after the Long Trusts claims have been decided.”

Castle contends that the Long Trusts failed to complain of this court’s severance of the cases and have waived any claim to offset Castle’s recovery. Castle maintains that the Long Trusts’ motion for clarification is, in effect, a motion to amend the judgment, and that since this court’s plenary power has expired, we have no power to grant the relief the Long Trusts seek. Moreover, Castle insists that both the mandate and judgment are clear and unambiguous; therefore, no clarification is required.

Texas Rule of Appellate Procedure 18.1 requires the clerk of the appellate court to issue a mandate “in accordance with the judgment.” The mandate issued in this case strictly conforms to the judgment.

The plenary power of this court in this case has expired. See Tex.R.App. P. 19.1. After the expiration of its plenary power, an appellate court cannot vacate or modify its judgment. Tex.R.App. P. 19.3. After its plenary power expires, an appellate court may only

(a) correct a clerical error in its judgment or opinion;
(b) issue and recall its mandate as these rules provide;
(c) enforce or suspend enforcement of its judgment as these rules or applicable law provide;
(d) order or modify the amount and type of security required to suspend a judgment, and decide the sufficiency of the sureties, under Rule 24; and
(e) order its opinion published in accordance with Rule 47.

Tex.R.App. P. 19.3.

The Texas Supreme Court has denied petitions for review filed by both parties and has denied the Long Trusts’ motion for rehearing. An intermediate appellate court has no power to change its judgment after the supreme court has approved it by denying review. Gammel Statesman Publ’g Co. v. Ben C. Jones & Co., 206 S.W. 931 (Tex. Comm’n App.1918, holding approved); Humble Exploration Co. v. Browning, 690 S.W.2d 321, 324 (Tex.App.-Dallas 1985, writ ref’d n.r.e.). However, we do have jurisdiction of the motion to clarify the judgment. See Sad-ler v. Duvall, 828 S.W.2d 339, 340 (Tex. App.-Texarkana 1992 (op. denying clarification)); Western Cas. and Sur. Co. v. Preis, 710 S.W.2d 719, 720 (Tex.App.-Corpus Christi 1986, writ refd n.r.e.).

This court’s judgment affirmed Castle’s recovery against the Long Trusts in accordance with the remittiturs filed by Castle, but remanded the severed counterclaim of Castle to the trial court solely for the recalculation of prejudgment interest, a relatively simple task. The Long Trusts’ recovery against Castle was reversed and the cause remanded to the trial court for retrial of the Long Trusts’ breach of contract claims. The recalculation of the prejudgment interest can be quickly accomplished. The retrial of the Long Trusts’ claims and the resolution of probable appeals obviously will require a protracted process.

Our judgment ordering severance did not contemplate nor does the mandate ordering its execution permit the trial court to reconsolidate the cases or to contrive a procedure to delay the redetermination of prejudgment interest due Castle and its recovery on the judgment until the resolution of the Long Trusts’ claims against Castle. Castle’s recovery on its judgment, which was affirmed, cannot be made to await the outcome of the retrial of the Long Trusts’ claims against Castle.

Texas Rule of Appellate Procedure 51.1(b) requires the enforcement of the appellate court’s judgment when the clerk receives the mandate. The rule clearly contemplates that this be promptly accomplished. In order to comply with our mandate, the district court of Rusk County should assign Castle’s counterclaim a separate cause number and proceed promptly with the recalculation of prejudgment interest and the entry of judgment thereon.

The Long Trusts’ motion for clarification is overruled.

      . The Castle entities, Castle Texas Production Limited Partnership, Castle Texas Pipeline Limited Partnership, CEC Gas Marketing Limited Partnership, and Castle Energy Corporation, will be hereinafter referred to as "Castle.”


author: TERRY MeCALL, Justice.

text:
    Ralph SMITH and Jocelyn Smith, Appellants, v. The CITY OF BROWNWOOD, Texas, Appellee.
    No. 11-04-00071-CV.
    Court of Appeals of Texas, Eastland.
    March 10, 2005.

      William W. Bell, Brownwood, for appellants.
    William P. Chesser, City Atty., Brown-wood, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY MeCALL, Justice.

This is a case of first impression involving the right to sue for disannexation when a municipality has failed or refused to provide services (such as water service and solid waste collection) after annexing an area. TEX. LOC. GOV’T CODE ANN. § 43.141 (Vernon Supp.2004-2005) provides that “[a] majority of the qualified voters of an annexed area may petition the governing body of the municipality to disannex the area” if the municipality has failed to provide the services to the area. The trial court held that appellants Ralph Smith and Jocelyn Smith did not have standing to sue for disannexation under Section 43.141 because (1) Section 43.141 requires that a valid petition seeking dis-annexation must first be filed with the municipality before a suit can be filed in the district court, (2) Section 43.141(a) defines a valid petition to be one that is filed by a majority of the qualified voters of the entire area previously annexed, and (3) the Smiths did not file a valid petition because they represented only 13 of the previously annexed area of 153 acres. We affirm.

Background Facts

On April 11, 1995, the City of Brown-wood passed Ordinance Number 95-09 annexing approximately 153 acres into the City. As required by former TEX. LOC. GOV’T CODE § 43.056 (1999), in effect at the time, the City had previously prepared and filed a service plan for the annexed area that included providing water and sewer service to the annexed area.

The Smiths purchased 13 of the 153 acres after the annexation. At various times after their purchase, the Smiths inquired as to the availability of water and sewer service to their property. They claim that they spoke with James Galloway and Ken Johnson, City employees, who told them that there were no plans to run those services to the Smiths’ 13 acres. Pursuant to Section 43.141, the Smiths filed a petition for disannexation with the City for their specific 13 acres. The Smiths appeared before the city council and requested the disannexation of their 13 acres. The City declined their request.

The Smiths then filed this suit for disan-nexation with the trial court below. The City filed a plea to the jurisdiction, contending (1) that the Smiths did not constitute a majority of the qualified voters of the previously annexed area of 153 acres as required by the Local Government Code Section 43.141(a) for the petition to the municipality and (2) that, therefore, the trial court was not vested with proper jurisdiction under Section 43.141(b).

The trial court held that the Smiths did not have standing to sue for disannexation under Section 43.141 because they had not first filed a valid petition for disannexation with the City prior to bringing this suit.

Standard of Review

Statutory construction is a matter of law; therefore, the proper standard of review is de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989).

The fundamental and dominant rule controlling the construction of a statute is to ascertain, if possible, the intention of the legislature expressed by the statute. Liberty Mutual Insurance Company v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998); Calvert v. British-American Oil Producing Company, 397 S.W.2d 839, 842 (Tex.1965); White v. Eastland County, 12 S.W.3d 97, 101 (Tex.App.-Eastland 1999, no pet’n). Legislative intent should be ascertained from the entire act, not from isolated portions of the act, any one phrase, clause, or sentence. Cities of Austin, Dallas, Ft. Worth, and Hereford v. Southwestern Bell Telephone Company, 92 S.W.3d 434, 442 (Tex.2002); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951); White v. Eastland County, supra at 101. In construing a statute, courts will not attribute an intent to the legislature that leads to an absurd result if there is a more reasonable construction. University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex.2004).

Analysis

Before a municipality could annex an area, Section 43.056 required that the municipality prepare and file a service plan for the extension of full municipal services to the area to be annexed. If the municipality failed to provide the services as required by Section 43.056, then Section 43.141 provided a means for qualified voters within the annexed area to have their area disannexed. Although former Section 43.056 and Section 43.141 have been amended since 1995, Section 43.056 still requires a service plan and subsections (a) and (b) of Section 43.141 remain as they were when the City annexed the 153 acres. Section 43.141 provides:

Section 43.141. Disannexation for Failure to Provide Services
(a) A majority of the qualified voters of an annexed area may petition the governing body of the municipality to disannex the area if the municipality fails or refuses to provide services or to cause services to be provided to the area within the period specified by Section 43.056 or by the service plan prepared for the area under that section.
(b) If the governing body fails or refuses to disannex the area within 60 days after the date of the receipt of the petition, any one or more of the signers of the petition may bring a cause of action in a district court of the county in which the area is principally located to request that the area be disannexed.... The district court shall enter an order disannexing the area if the court finds that a valid petition was filed with the municipality and that the municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith. (Emphasis added)

The Smiths base their argument on the second prepositional phrase used as an adjective to modify “voters” in Section 43.141(a). The Smiths argue that “an annexed area” refers to any portion of the annexed area of 153 acres because “an” is an indefinite article. They reason that, if the legislature had intended for the entire annexed area to participate in the process of disannexation, the phrase “of the annexed area” would have been used. Thus, the Smiths contend that Section 43.141 is unambiguous and ask this court to find that the trial court erred in determining that the Smiths do not constitute a majority of qualified voters of “an annexed area.”

“An” is an indefinite article, but it is used in Section 43.141 to refer to any one of the many areas that have been annexed by municipalities where the municipality had to comply with Section 43.056. Former Section 43.056(j) used “an” in a similar manner:

A municipality that annexes an area shall provide the area or cause the area to be provided with services in accordance with the service plan for the area.

Other examples of such usage of “an” are found in Chapter 43 of the Texas Local Government Code: TEX. LOC. GOV’T CODE § 43.053 (1993), “annexation of an area must be completed within 90 days” after the governing body institutes the annexation proceedings; TEX. LOC. GOV’T CODE ANN. § 43.057 (Vernon 1999), “[i]f a proposed annexation would cause an area to be entirely surrounded”; TEX. LOC. GOV’T CODE ANN § 43.121 (Vernon Supp.2004-2005), “the governing body of a home-rule municipality ... may annex an area” for certain limited purposes.

Section 43.141(a) must be read -within the context of the entire Chapter 43. The final part of Section 43.141(a) refers back to the entire area that was annexed in accord with the requirements of Section 43.056, just as former Section 43.056(j) used “an” and “the” internally within Section 43.056. The final part of Section 43.141(a) provides:

[I]f the municipality fails or refuses to provide services or to cause services to be provided to the area within the period specified by Section 4.3.056 or by the service plan prepared for the area under that section. (Emphasis added)

The City in this case did not prepare a plan for the 13 acres. The City prepared a plan for the entire 153 acres. The initial reference in Section 43.141(a) to “[a] majority of the qualified voters of an annexed area,” when read in the context of the final part of Section 43.141(a), refers to a majority of the qualified voters in the annexed area of 153 acres.

The Smiths argue that the trial court’s decision has left them without a remedy unless they can convince a majority of the qualified voters in the 153 acres to petition the City for disannexation. They appear to be correct, but their argument demonstrates another reason why the trial court reached the correct decision. The Texas Legislature realized that an individual owner residing within an annexed area had no remedy if he or she could not convince a majority of the qualified voters in the entire annexed area to petition the municipality for disannexation. In 1995, the legislature amended Section 43.056(i) to provide the remedy of a writ of mandamus to an individual living within the entire annexed area:

A person residing in an annexed area may enforce a service plan by applying for a writ of mandamus. If a court issues the writ, the municipality shall pay the person’s costs and reasonable attorney’s fees in bringing the action. A writ issued under this subsection must provide the municipality the option of disannexing the area within 30 days.

Unfortunately for the Smiths, the effective date of the amendment was June 17, 1995, just a few months after the City annexed the 153 acres. The legislature made the change applicable only to annexations initiated on or after June 17, 1995. Section 43.056(i) was subsequently amended, and the individual’s remedy of a writ of mandamus is now found in Section 43.056(Z).

The Smiths’ interpretation of Section 43.141(a) could lead to an absurd result. The laying of water and sewer lines for an entire annexed area needs to be done in an orderly manner. If an individual owner of a small parcel or a resident could sue for disannexation, the municipality could be subjected to numerous suits the results of which would leave a previously annexed area with numerous gaps of small disan-nexed parcels. The legislature has avoided those problems by limiting the remedies for a municipality’s failure to provide services. A majority of the qualified voters of the entire annexed area may follow the disannexation procedure in Section 48.141, or an individual within the annexed area may seek a writ of mandamus under Section 43.056(0- Even under Section 43.056(0, the municipality is given the choice of complying with the writ of mandamus by providing service to the individual or by disannexing that smaller part of the annexed area.

The more reasonable construction of Section 43.141(a) is that “[a] majority of the qualified voters of an annexed area” means a majority of the qualified voters of the 153 acres that was previously annexed. The 153 acres was “an annexed area.” Section 43.141(f) requires that, before the petition is circulated among the voters, those desiring disannexation must give notice of the petition by posting a copy in three public places “in the annexed area” and by publishing a copy in the newspaper. This section would be unnecessary if one person within the entire annexed area could file a petition with the municipality and sue for disannexation. In construing a statute, we read it as a whole and interpret it to give effect to every part. City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003). We presume that the legislature used every word for a particular purpose. Cities of Austin, Dallas, Ft Worth, and Hereford v. Southwestern Bell Telephone Company, supra at 442.

It is unfortunate that the legislature did not extend the remedy of a writ of mandamus to individuals residing in areas annexed before June 17, 1995. The Smiths’ issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . Section 3, Acts 1995, 74th Leg., ch. 1062.

      . Section 17(d), Acts 1999, 76th Leg., ch. 1167.

      . Based on a similar concern about the results of suits by individuals, the court in Alexander Oil Company v. City of Seguin, 825 S.W.2d 434, 437 (Tex. 1991), held that the only proper method for attacking the validity of a city’s annexation of territory is by quo warranto proceeding unless the annexation is wholly void. Id. at 437.


author: HOLLIS HORTON, Justice.

text:
    Robert Earl WILLIAMS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-579 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 3, 2005.
    Decided March 16, 2005.

      Richard Martin P. Canlas, Conroe, for appellant.
    Michael A. McDougal, Dist. Atty., Marcia Tillman, Marc Brumberger, Asst. Dist. Attys., Conroe, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Appellant Robert Earl Williams, Jr. was indicted for the offense of aggravated sexual assault, enhanced by prior felony convictions. See Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2005). A jury found Williams guilty. The trial court sentenced Williams to fifty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Williams asserts the trial court committed reversible error in overruling his objection to the admission of an extraneous offense of robbery and in failing to grant a mistrial after the introduction of the extraneous offense. Finding no error, we affirm.

The seventeen-year-old victim (hereafter, “the teenager”) allowed Williams to enter her apartment to use her phone. Williams had been in the teenager’s apartment earlier that evening, accompanied by another man with whom the teenager was acquainted. When the teenager asked Williams to get off the phone and leave, he allegedly punched her and sexually assaulted her. After the alleged assault, Williams removed his bloody T-shirt and used a towel to wipe the teenager’s bloody face. Williams then allegedly left the apartment with the bloody T-shirt and towel.

Williams’s complaint regarding the extraneous offense of robbery centers on the testimony of Letha Stevens, the mother of his six children. Stevens, a resident of the apartment complex where the sexual assault occurred, testified that in the early morning hours on the day of the alleged assault she encountered Williams “sneaking up” in the apartment hallway holding a bloody T-shirt wrapped in a towel.

Q. [State] What was unusual about the way he appeared to you?
A. [Stevens] He had his T-shirt wrapped up in a towel.
Q. Did you notice anything unusual about the T-shirt?
A. It had blood on it.
Q. Did you ask him what it was?
A. Yeah.
Q. And what—
A. Only thing he told me, he told me hurry up and open the door first.
Q. And what did you say?
A. And I said: What happened? He said: Just open the door; hurry up. And when he got in there, he sat on the couch. And I said: What happened? He said he robbed somebody.
Q. How did he appear to you? How did he act to you?
[Defense counsel] Your Honor, I’m going to object.

Williams arrived at Stevens’s apartment while the police were at the same apartment complex to investigate the sexual assault. Stevens testified that after Williams entered the apartment, Williams “stayed in the window” and “kept running window to window.” Stevens also testified that Williams asked her how many police officers were outside and what they were doing.

Williams’s first point of error alleges that the trial court committed reversible error in overruling his objection to the admission of an extraneous robbery. According to Williams, this testimony was introduced as character evidence and the jury would infer that “if he’s a robber, he’s also an aggravated sexual assaulter.” The trial court overruled Williams’s objection on the basis there was no evidence that a robbery occurred.

This Court reviews the trial court’s decision to admit the contested testimony under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001). We will uphold the trial court’s decision if it is “within the zone of reasonable disagreement.” , Id. The trial court’s evidentiary ruling must be upheld if it is “reasonably supported by the record and is correct under any applicable theory of law ... [and] even when the trial court gives the wrong reason for its decision.” Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, no pet. h.) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990)). Therefore, we must determine whether or not the testimony about the robbery was admissible regardless of the trial court’s stated basis in admitting the statement into evidence.

Texas Rule of Evidence Rule 404(b) does not allow the admission of evidence of other crimes or acts to show “the character of a person in order to show action in conformity therewith.” Tex. R.Evid. 404(b). “An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003) (citing Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996)). Williams asserts that his “confession” to the robbery constitutes evidence of an extraneous offense.

An extraneous offense requires extraneous conduct. See Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.1993). “If the challenged evidence does not show that an offense was committed ..., then it is not evidence of an extraneous offense.” Mayo v. State, 17 S.W.3d 291, 299 (Tex. App.-Fort Worth 2000, pet. ref’d). The State, without citation to authority, argues that because the statement was offered to show concealment of Williams’s true crime, sexual assault, it was not offered to prove that a robbery had occurred.

Even if the statement somehow suggests evidence of another wrong or crime under Rule 404(b), there are exceptions to Rule 404(b)’s general prohibition against evidence of other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts that occur in the same criminal transaction may be admissible despite the general prohibition of Rule 404(b) where several crimes are blended or .intermixed, or so connected that they form an indivisible criminal transaction, and where “full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” See Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993); see also Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App.2000).

In evaluating whether Stevens’s testimony that Williams said he committed a robbery is admissible as same transaction contextual evidence, we apply a two-step process. Rogers, 853 S.W.2d at 32 (citing Mayes v. State, 816 S.W.2d 79, 84-87 (Tex. Crim.App.1991)). First, we must decide if the testimony is relevant under Texas Rules of Evidence 401. Rogers, 853 S.W.2d at 32. Rule 401 provides: ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401.

The events of the early morning hours following the assault are part of a continuum; one event flows from another. Stevens’s testimony that when she saw Williams, he had in his possession a bloody T-shirt wrapped in the towel is circumstantial evidence relevant to the element of identity. This evidence, coupled with the teenager’s testimony that the perpetrator left her apartment with a bloody T-shirt and towel helped establish that the person seen shortly afterwards, in the same apartment complex, was probably the perpetrator of the crime. In other words, the probability that Williams committed the sexual assault was greater because he was found in possession of a bloody T-shirt and a stolen towel shortly after the crime. Stevens’s testimony that Williams said “[h]e robbed somebody” was relevant in the context it was offered in this trial to assist the jury in identifying Williams as the perpetrator.

Same transaction contextual evidence is admissible not because of its evidentiary value but because it would be impracticable to avoid describing one act without also describing the other. Rogers, 853 S.W.2d at 33. After Williams left the teenager’s apartment, he went to Stevens’s apartment to hide. When Stevens questioned Williams at the door to her apartment, he requested that she hurry to open the door and let him inside. Stevens was not an eyewitness to the assault, but it is apparent from the record that Williams sought to use her apartment to hide while the police were present at the apartment complex.

Conduct relevant to the jury’s understanding of how a perpetrator attempts to avoid detection has been allowed as same transaction contextual evidence. See Prible v. State, No. AP-74487, 2005 WL 156555, at *6, — S.W.3d —, — (Tex. Crim.App. Jan. 26, 2005) (opinion not yet released for publication). We agree that evidence regarding a perpetrator’s efforts to escape detection may be evaluated as part of the same transaction, and may be necessary to aid the jury’s understanding of the crime. Williams’s response to Stevens’s question about the blood on the T-shirt provided him an excuse to remain in Stevens’s apartment and thereby avoid detection on the night of the sexual assault. Williams’s statement about robbing someone was part of a continuum of activity beginning with his presence in the teenager’s apartment. The evidence about how Williams was able to avoid detection was intricately intertwined with the sexual assault. Not allowing the testimony in this case would have created a situation where Stevens’s question about the blood on the T-shirt was left unanswered, despite the fact that Williams apparently offered an explanation.

Under the facts of this case, we hold that Williams’s statement regarding the robbery was necessary to aid the jury in establishing the identity of the perpetrator, and to aid the jury’s understanding of how Williams avoided detection on the night of the crime. Because the evidence regarding Williams’s statement was both relevant and necessary, we hold that it would not have been error for the trial court to admit the evidence as same transaction contextual evidence.

Williams also contends that it was improper to admit the extraneous robbery offense under Rule 404(b) because the State failed to notify him of its intent to introduce the robbery at trial. Because the evidence to which Williams objects is same transaction contextual evidence under Rule 404(b), notice was not required. See Tex.R. Evid. 404(b). Williams also failed to preserve this error for appeal by failing to raise the issue at trial. See Tex.R.App. P. 33.1(a).

Williams further argues that the admission of his statement about a robbery was irrelevant and highly prejudicial. Relevant evidence tends to make a consequential fact more or less probable than it would be without the evidence. Tex.R. Evid. 401. As previously discussed, Stevens’s testimony is relevant because it helps identify Williams as the perpetrator. As to Williams’s argument that the robbery evidence was highly prejudicial, we need not engage in a Rule 403 analysis because no timely Rule 403 objection was made by Williams’s trial attorney. Tex.R. Evid. 403; Tex.R.App. P. 33.1(a); Rankin v. State, 974 S.W.2d 707, 710-11 (Tex. Crim.App.1996) (citing Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1991)). Williams’s sole objection when this testimony came into evidence was a Rule 404(b) objection that the robbery was an extraneous offense. Williams’s complaint regarding the prejudicial nature of the robbery evidence was not preserved.

Williams’s second point of error contends that the trial court committed reversible error in faffing to grant a mistrial. “Mistrial is appropriate for only ‘highly prejudicial and incurable errors.’ It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert. denied, — U.S. —, 124 S.Ct. 2837, 159 L.Ed.2d 270, 72 U.S.L.W. 3749 (2004).

Because it was not error to admit the testimony regarding Williams’s statement about the robbery, it follows that there was no error in denying the request for mistrial. Issue two is overruled, and the conviction is affirmed.

AFFIRMED.