text:
    SANTA FE PETROLEUM, L.L.C., Tex-Tron Southwest, L.L.C. and Southwest Land and Pipeline Company, L.L.C., Appellants, v. STAR CANYON CORPORATION, Appellee.
    No. 12-03-00403-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 30, 2004.

      David B. Dayer, for appellant.

      Thomas R. McLeroy, Jr., for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Appellants Santa Fe Petroleum, L.L.C., TexTron Southwest, L.L.C., and Southwest Land and Pipeline Company, L.L.C. (collectively “Santa Fe”) appeal the trial court’s judgment, which awarded a one percent overriding royalty interest in various Shelby County mineral leases to Star Canyon Corporation, as well as money damages and attorney’s fees. Santa Fe raises six issues on appeal. We affirm.

Background

Santa Fe hired Sam Embras to organize a mineral development program for it in the James Lime Horizontal Gas Project in Shelby County (the “James Lime”). While seeking individuals to assist with the land purchase, Embras contacted Kent Lam-beth, who was the president of Star Canyon. Embras, as agent of Santa Fe, agreed to pay Lambeth a five dollar bonus per acre purchased, as well as a one percent overriding royalty for any large blocks of acreage that Santa Fe could purchase.

Based upon the agreement, Star Canyon procured over eight thousand acres of mineral interests on behalf of Santa Fe in the James Lime. These mineral interests were transferred to Santa Fe by virtue of three closings in March, April, and October 1999.

At the March closing, Lambeth was told by the attorney for Santa Fe that he should get his overriding royalty interest in writing. On April 19, 1999, four days prior to the April closing, Lambeth received, by facsimile, the following signed agreement from Tom Griffin, the president of Santa Fe:

April 19,1999
Agreement
This agreement between Star Canyon Corporation, hereinafter referred to as “SCC” and Sante Fe Petroleum, L.L.C. hereinafter referred to as “SFP” and TexTron Southwest, L.L.C. hereinafter referred to as “TS” or any of their assigns or affiliates covering Federal Lease No. TXNM-89845 consisting of approximately 772 net acres and the HBP leasehold covered by Lease numbers 25666, 17850, 17842, and fee leases consisting of approximately 4,556.70 net acres and NON-HBP Leasehold covered by Lease numbers 71595 and 71596 consisting of approximately 3,621.29 net acres hereby agree to the following:
1. SFP, by signing this agreement, acknowledges that SCC has received a commission of Five Dollars ($5.00) per acre for the transaction covering lease number TXNM-89845 to close on or before April 23, 1999 and on the transaction covering the above referenced HBP and NON-HBP acreage that was closed on March 19,1999.
2. It is understood that SCC shall be given an assignment of a one percent (1%) ORRI on any of the above referenced acreage to be delivered at the time a unit is formed containing any of the referenced acreage and said assignment shall be effective as of the date said unit was formed.
3. If the unit formed is not comprised one-hundred percent (100%) from the above referenced leases, the ORRI will be proportionately reduced.
If this letter agreement accurately sets forth your understanding of our previous verbal agreement to the subject matter hereof, please sign two copies of the letter in the space provided below and return one of the same to the undersigned.
Sincerely,
/s/ Kent Lambeth
Star Canyon Corporation
/s/ Kent Lambeth
Kent Lambeth, President
Santa Fe Petroleum, L.L.C.
/s/ Tom Griffin
Mr. Tom Griffin, President

On April 23, 1999, Lambeth' and Griffin met at Santa Fe’s Dallas office for the second closing. There, Lambeth presented two' originals and a copy of the aforementioned letter agreement'to Griffin for his signature. Griffin handed the originals of the agreement to Embras and instructed him to destroy them. Embras did as Griffin asked and placed the shredded documents in the trash. The parties then proceeded with the second closing, which resulted in the transfer of the seven hundred seventy-two net acres referenced in the agreement.

On May 11,1999, Lambeth sent Griffin a letter requesting that he honor the agreement to transfer the one percent overriding royalty interest to Star Canyon. In May 2000, Star Canyon filed a declaratory judgment action against Santa Fe for breach' of the April 19, 1999 letter agreement. See Tex. Crv. Prac. & Rem.Code Ann. § 37.001-37.011 (Vernon 1997 & Supp. 2004). After a bench trial, the one percent overriding royalty interest in the acreage described in the letter agreement was awarded to Star Canyon along with $174,235.19 in money damages and $12,000.00 in attorney’s fees. Santa Fe timely filed this appeal.

Standard of Review

Our standard of review is limited in the instant case. When findings of fact are neither filed nor requested following a bench trial, it is implied that the trial court made all findings necessary to support its judgment, provided that (1) the necessary findings are raised by the pleadings and supported by the evidence and (2) the decision can be sustained by any reasonable theory consistent with the evidence and applicable law. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Fair Deal Auto Sales v. Brantley, 24 S.W.3d 543, 546 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The appellant’s burden on appeal is to show that the judgment of the court below cannot be sustained by any theory raised by the evidence. See Brantley, 24 S.W.3d at 546.

■ The trial court’s findings of fact, express or implied, after a bench trial are reviewable for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury’s answer. See Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, writ denied). We review de novo a trial court’s conclusions of law, whether express or implied. See Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex.App.-San Antonio 1997, pet. denied). A conclusion of law will be set aside if it is erroneous as a matter of law. Id.

Complaint by party not having burden of proof

When the complaining party raises a “no-evidence” or “legally insufficient evidence” issue challenging the legal sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we must overrule the challenge if, considering only the evidence and inferences that support the finding in the light most favorable to the finding and disregarding evidence and inferences to the contrary, any probative evidence supports it. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of the fact’s existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Heldenfels Bros., Inc. v. City of Corpus Christi 832 S.W.2d 39, 41 (Tex.1992). A no-evidence issue can be sustained only when the record reveals one of the following: (1) there is a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. See Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990).

In reviewing an “insufficient-evidence” issue challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, the reviewing court may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and manifestly unjust. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent’s proof, although adequate if taken alone, is overwhelmed by the opponent’s contrary proof. William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEX. L. REY. 515, 519 n. 11 (1991).

Complaint by party having burden of proof

When the party who had the burden of proof on an issue in a bench trial complains about the absence of a finding of fact by the court, we treat the absence of the finding as a refusal by the trial court to find the fact from a preponderance of the evidence. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If that party raises a “conclusive-evidence” or “matter-of-law” issue, i.e., asserts that the evidence conclusively established the critical fact such that the finding was established as a matter of law, we must first examine the record for evidence that supports the court’s refusal to find that fact, while ignoring all evidence to the contrary. See id.; Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). If we find evidence that supports the court’s refusal to find the fact, the inquiry ends, and the issue will be sustained; but if we find no evidence to support the refusal, then the entire record must be examined to determine if the contrary proposition is established as a matter of law. See Sterner, 767 S.W.2d at 690.

When the party who had the burden of proof on an issue complains about the court’s refusal to find a fact in a “contrary to the great weight and preponderance of the evidence” issue, i.e., asserts that the court’s refusal to. find the fact is contrary to the evidence, we must overrule the complaint unless, considering all the evidence, the refusal is contrary to the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

When considering the factual sufficiency of the evidence, we do not weigh the evidence and set the verdict aside merely because we believe that a different result is more reasonable. Dubree v. Blackwell, 67 S.W.3d 286, 289 (Tex.App.-Amarillo 2001, no pet.) (citing Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962)). The trial court, as the trier of fact, is the sole judge of the credibility of the witnesses and weight to be given their testimony. Nordstrom, v. Nordstrom, 965 S.W.2d 575, 580 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). The trial court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Where enough evidence is before the fact finder that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the fact finder. Dubree, 67 S.W.3d at 289.

Rescission

In its first issue, Santa Fe contends that the trial court erred when it found the April 19 letter agreement was a valid contract because the evidence conclusively showed that the parties had agreed to rescind it. Santa Fe’s argument presupposes that there existed a valid contract in the first place. See, e.g., Humphrey v. Camelot Retirement Cmty., 893 S.W.2d 55, 59 (Tex.App.-Corpus Christi 1994, no writ) (rescission is an equitable remedy that operates to set aside a contract that is legally valid).

Parties may rescind their contract by mutual agreement and thereby discharge themselves from their respective duties. Texas Gas Utilities Co. v. Barrett, 460 S.W.2d 409, 414 (Tex.1970). It is a well established rule that the repudiation of a contract by one party rescinds the contract when such repudiation is accepted by the other party. Gage v. Wimberley, 476 S.W.2d 724, 731 (Tex.Civ.App.-Tyler 1972, writ ref d n.r.e.). If the repudiation is not accepted by the other party, the contract is kept alive for the benefit of both parties; the non-repudiating party, like the repudiating party, remains subject to all obligations under the contract. See Griffith v. Porter, 817 S.W.2d 131, 135 (Tex.App.-Tyler 1991, no writ). We must therefore examine the evidence in the record before us to determine if there was conclusive evidence that Lambeth, on behalf of Star Canyon, repudiated the one percent override provision of the April 19 agreement.

The evidence was undisputed that only Lambeth, Griffin, and Embras were present at the April 23 closing. Each testified at trial that Embras destroyed the unsigned copies of the April 19 agreement after he was instructed by Griffin to do so. Embras testified that he had to leave the room to take a phone call, but that Griffin and Lambeth remained in the conference room and that he could not hear what Griffin and Lambeth were saying.

Griffin testified that he told Lambeth that “we won’t close this deal” if the one percent override is part of it. Lambeth, on the other hand, stated that Griffin told him that he (Lambeth) “deserved something” and that he (Griffin) “would have to think about it.” Lambeth further testified that he had the signed facsimile copy of the April 19 agreement, but did not know whether a facsimile was valid in a court of law. He also testified that he knew the facsimile copy was better than nothing, but did not know how good it was. Lambeth further stated that he proceeded with closing believing that Griffin was prepared to further negotiate the one percent override issue with him.

We iterate that the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom, 965 S.W.2d at 580. Thus, we disagree with Santa Fe’s contention that the evidence is conclusive that Griffin, on behalf of Santa Fe, repudiated the one percent override provision in the April 19 agreement. The trial court as fact finder could have reasonably concluded based on the evidence before it that Lambeth surmised he still had a one percent overriding royalty interest as evidenced by the signed written agreement he possessed and, further, that Griffin was prepared to continue negotiations with him at a later date concerning the one percent overriding royalty interest. There was not conclusive evidence to demonstrate that Lambeth accepted Griffin’s repudiation of the one percent override. Thus, we hold that the contract was not rescinded. Santa Fe’s first issue is overruled.

Waiver

In its second issue, Santa Fe contends that the evidence shows that Star Canyon waived any rights it had to the one percent override under the April 19 letter agreement. Santa Fe argues that the evidence was undisputed that Griffin stated at the April 28 closing that he would not close if Star Canyon required the assignment of the one percent override. Moreover, Santa Fe states that when confronted with Griffin’s refusal to close, Lambeth and Star Canyon had the option of either (1) insisting that they be given the one percent override at the risk of losing the sale or (2) proceeding with the closing and abandoning the one percent override. It is therefore apparent, Santa Fe contends, that Star Canyon chose the latter course of action.

Waiver is defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Jemigan v. Langley, 111 S.W.3d 158, 156 (Tex.2003). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Id. Waiver is ordinarily a question of fact. Id. A party’s continuing performance after another party’s breach is not a waiver of the right to recover damages due to the breach. Cal-Tex Lumber Co. v. Owens Handle Company, 989 S.W.2d 802, 812 (Tex.App.-Tyler 1999, pet. denied). A party to a contract has no duty to acknowledge or disavow a repudiation of a contract. See Barrett, 460 S.W.2d at 415.

The evidence of record reflects that Lambeth did not believe he only had the two options in responding to Griffin’s repudiation of the one percent override. Lambeth testified that Griffin said he was going to think about the one percent override and that Star Canyon deserved something. It follows that Lambeth proceeded with the closing believing that Griffin was going to try to further negotiate the one percent override with him. Therefore, we hold that the evidence of record supports the trial court’s implied finding that there was no waiver on Star Canyon’s part. Santa Fe’s second issue is overruled.

Estoppel

In its third issue, Santa Fe contends that the evidence shows Star Canyon should be estopped from claiming the one percent override. In support of its argument, Santa Fe urges that Lambeth failed to insist that he receive the one percent override after Griffin instructed Embras to destroy the letter agreement and, further, that Lambeth did not seek to enforce the previously-executed copy of the letter agreement he possessed. Santa Fe thus contends that Lambeth’s conduct induced Griffin to proceed with the closing.

To establish an equitable es-toppel, Santa Fe was required to prove that Lambeth made (1) a false representation or concealment of material facts, (2) with knowledge, actual or constructive, of such facts, (3) with the intention that it should be acted on, (4) to a party without knowledge, or the means of knowledge of those facts, (5) who detrimentally relied upon the misrepresentation. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 489 (Tex.1991). The burden of proving an estoppel and the essential elements thereof rests on the party asserting it, and the failure to prove any one or more of the elements is fatal. See Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 838 (Tex.1968).

There is no duty to acknowledge or disavow a repudiation of a contract. See Barrett, 460 S.W.2d at 415. There must be a clear acquiescence to accept the repudiation. See id.

In the case at hand, Santa Fe failed to demonstrate estoppel. The evidence does not support that Griffin, as representative for Santa Fe, lacked knowledge or the means of knowledge that he had executed a letter agreement giving Star Canyon a one percent overriding royalty interest. Griffin’s signature appeared on the facsimile copy of the letter agreement possessed by Lambeth. Lambeth had no duty to further negotiate with regard to the one percent override or urge the validity of the previously-executed letter agreement that set forth Star Canyon’s entitlement thereto before closing. We hold that the evidence does not conclusively demonstrate that Star Canyon should be estopped from receiving the one percent override. Santa Fe’s third issue is overruled.

Ambiguity

In its fourth issue, Santa Fe argues that the April 19 letter agreement was too ambiguous to be enforced because it did not specify which party was required to give Star Canyon the assignment of the one percent overriding royalty interest. Santa Fe further contends that the contract for the conveyance of an overriding interest in an oil or gas property must be in writing to satisfy the statute of frauds.

The question of whether a contract is ambiguous is one of law for the court. Heritage Resources Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). If a contract is worded so that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. R. Conrad Moore & Associates, Inc. v. Lerma, 946 S.W.2d 90, 94 (Tex.App.-El Paso 1997, pet. denied). We give terms their plain, ordinary, and generally accepted meaning unless the instrument shows the. parties used them in a technical or different sense. Heritage Resources Inc., 939 S.W.2d at 121. We will enforce an unambiguous document as it is written. Id.

Here, the April 19 agreement specifically states that it is between Star Canyon and Santa Fe. The agreement describes the properties that are the subject of the March, April, and October 1999 closings conducted by these two parties. The agreement demonstrates that these properties were to be transferred to Santa Fe and its affiliates'. The agreement specifically states that Star Canyon “shall be given an assignment of one percent (1%) ORRI on any of the above acreage.... ” Thus, it was reasonable for the trial court to conclude that Santa Fe, as the only other party to the agreement, would be making the assignment of the one percent override interest to Star Canyon.

We do not consider Santa Fe’s contention that the agreement violated the statute of frauds inasmuch as this affirmative defense was not pleaded. A party waives his right to assert the statute of frauds as a defense if he does not plead it. See Tex.R. Civ. P. 94; First Nat’l Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 677 (Tex.1969). Therefore, Santa Fe has waived its reliance on such a defense. Santa Fe’s fourth issue is overruled.

Capacity of Parties

In its fifth issue, Santa Fe contends that the trial court erred by entering judgment against TexTron Southwest, L.L.C. and Southwest Land and Pipeline Company, L.L.C. In its brief, Star Canyon replies that Santa Fe waived such a defense by failing to file a verified plea that there was a defect of parties. We agree. Where a defendant does not file a sworn pleading complaining of a defect of parties before the case is called to trial, such defect is waived. Sunbelt Constr. Corp. v. S & D Meek, 668 S.W.2d 415, 418 (Tex.App.-Corpus Christi 1983, writ refd n.r.e.); see Tex.R. Civ. P. 93(2), (4), (7).

Further, even if Santa Fe had not waived the issue, the outcome would not differ. The April 19 letter agreement specifically stated that TexTron was a party to the agreement along with Santa Fe. Documents involving the mineral interests in all three closings showed TexTron and Southwest as owning interests therein and are part of the record before us. The record further reflects that these three companies are affiliated and intertwined. Santa Fe’s fifth issue is overruled.

Attorney’s Fees

In its sixth issue, Santa Fe argues that, assuming the trial court erred in finding the letter agreement to be binding and enforceable, it also erred in awarding $12,000.00 in attorney’s fees to Star Canyon. Since we have held that the trial court did not err as Santa Fe presupposes in this issue, it follows that the trial court did not err in awarding attorney’s fees.

Whether to award attorney’s fees in an action seeking a declaratory judgment is a matter within the trial court’s sound discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). In reviewing a challenge to a trial court’s award of attorney’s fees under the Declaratory Judgments Act, the court of appeals will determine that the trial court abused its discretion when there is insufficient evidence that the fees were reasonable and necessary or when the award was inequitable or unjust as a matter of law. Id. at 21.

In the instant case, Star Canyon filed suit seeking a declaratory judgment and asking the trial court to award it reasonable and necessary attorney’s fees as allowed by statute. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997). There is evidence to support that the attorney’s fees awarded to Star Canyon complied with Section 37.009. Nothing in our review of the record causes us to conclude that the award was either inequitable or unjust. Thomas R. McLeroy, Jr., Star Canyon’s attorney, testified to his qualifications and experience as an attorney licensed to practice in and by the State of Texas. McLeroy further testified that he was familiar with the fees normally charged by attorneys in the area for matters of the nature and complexity of the instant case. McLeroy stated that he had expended eighty hours in the prosecution of this suit and that his hourly rate was $150.00 an hour, bringing the total fee to approximately $12,000.00. We hold that the trial court did not abuse its discretion in awarding $12,000.00 in attorney’s fees to Star Canyon. Santa Fe’s sixth issue is overruled.

Disposition

Having overruled Santa Fe’s issues one, two, three, four, five, and six, we affirm the trial court’s judgment.

      . As is discussed previously, TexTron Southwest, L.L.C. by name was also a party to this agreement.


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Rafael CAHVARRIGA, Appellant, v. The STATE of Texas, Appellee.
    No. 12-03-00165-CR.
    Court of Appeals of Texas, Tyler.
    Dec. 30, 2004.

      Douglas Scott Williams, for appellant.
    Donna R. Bennett, for state.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

A jury convicted Appellant Rafael Cah-varriga of murder and sentenced him to imprisonment for fifty-five years. In three issues, Appellant complains of the trial court’s'denial of his motion to suppress, its determination that a juror was disabled, and its failure to' charge the jury on certain lesser included offenses. We affirm.

Background

On August 15, 2001, Appellant was indicted for the murder of his wife, Melissa Bonk. Appellant pleaded not guilty to the charge, and the matter proceeded to a jury trial.

The trial evidence showed that at 5:00 a.m. on April 2B, 2001, twenty-two-year-old Appellant was in bed with sixteen-year-old Jennifer Nix in the master bedroom of Appellant’s Mabank trailer house. According to Appellant’s trial testimony, he and Jennifer were awakened by a noise outside the window of the trailer. Appellant looked out the window and saw Melissa’s car. Melissa entered the trailer through a window. Appellant, dressed in boxer shorts, confronted Melissa in the bathroom just off the piaster bedroom. Melissa demanded to know who Jennifer was and began throwing things at her. Jennifer, who was nude, wrapped herself in a sheet and escaped into an adjoining room.

Jennifer testified that, from her vantage point, she could hear Appellant and Melissa shouting insults and abuse at each other. She could also hear Appellant and Melissa wrestling and being “very physical.” As they wrestled, they moved into other parts of the trailer and ultimately returned to the master bedroom. Jennifer heard Melissa scream “You are killing me” and then heard her trying to get her breath. The sound stopped and she heard nothing further from Melissa. She testified that at this point she did not hear any noise from Appellant either. A few minutes later, she heard the shower come on. She said that Appellant came out of the master bedroom and told her that he had calmed Melissa down, but that he needed to take her (Jennifer) home. He went back into the master bedroom, retrieved Jennifer’s clothes, and took her home.

Appellant testified that he had calmed Melissa down by putting her in the shower and turning cold water on her. He said that Melissa was in the bathtub taking a bath when he took Jennifer home. However, when he returned to the trailer, he found Melissa dead in the bathtub with a syringe stuck in her arm. Appellant stated that he panicked at this sight. He put weights on Melissa’s body, wrapped it in a sheet, and put it in a trash can. He then dumped the trash can, with Melissa’s weighted body inside, into the Trinity River. A fisherman in Freestone County found Melissa’s partially decomposed body in the Trinity River fifteen days later on May 8.

After disposing of Melissa’s body, Appellant filed a missing person report with Henderson County law enforcement authorities. Following a meeting with the investigating officers, Appellant hired an attorney. After Melissa’s body was found, Appellant fled to Florida with Jennifer, traveling under the name of “Dustin Kennedy.” On June 6, he was arrested by police in Hialeah, near Miami, on two outstanding felony warrants for drug possession and a weapons violation. He identified himself to the arresting officers as “Dustin Kennedy.” After the arrest, Appellant gave an audio-taped statement to three Hialeah police officers describing the events leading up to Melissa’s death. Appellant filed a motion to suppress the statement, which was denied. The statement was introduced into evidence at trial and conflicted, with Appellant’s trial testimony.

Jill Irvin, the medical examiner who performed the autopsy, testified that Melissa’s body had been so badly decomposed after being in the water for fifteen days that she could not determine a specific cause of death.

The jury found Appellant guilty of murder and assessed his punishment at imprisonment for fifty-five years. Appellant timely filed this appeal.

Sixth Amendment

In Appellant’s first issue, he asserts that the trial court erred in denying his motion to suppress his audio-taped statement to the Hialeah, Florida police. In the statement, Appellant said that Jennifer had run into his room at 5:00 a.m. screaming that someone had broken into the trailer house. Appellant said he feared for his life and grabbed a .12 gauge shotgun. He pumped the gun, only to find that it was not loaded. He then used it to strike the intruder, who he later determined was his wife, Melissa.

Appellant points out that (1) at the time of his arrest, the Hialeah police knew he was a suspect in Melissa’s death, (2) the officers knew before he gave the audio-taped statement that he was represented by an attorney in Texas in connection with Melissa’s death, and (3) the officers knew Appellant’s Texas attorney did not want them to talk to Appellant about Melissa’s death. Therefore, Appellant argues, his Sixth Amendment right to counsel precluded the officers from taking his statement without his counsel present to advise him.

Standard of Review

We review a trial court’s ruling on a motion to suppress for abuse of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). In reviewing the trial court’s ruling, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of historical facts and review de novo a trial court’s application of the law to those facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Applicable Law and Analysis

The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the right to assistance of counsel for his defense. U.S. Const, amend. VI; McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). However, this Sixth Amendment right is offense specific. Id. The Sixth Amendment right to counsel cannot be invoked against potential future prosecutions that have not commenced. Id. Moreover, the right to counsel does not attach until the initiation of adversary judicial proceedings (including formal charge, preliminary hearing, indictment, information or arraignment). Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 1340, 149 L.Ed.2d 321 (2001).

As authority for his contention that he was entitled under the Sixth Amendment to consult the counsel he had retained before his June 6 arrest, Appellant cites Holloway v. State, 780 S.W.2d 787 (Tex.Crim.App.1989). However, this case is distinguishable from the facts before us. In Holloway, the appellant was indicted for capital murder the day before he spoke to law enforcement. Consequently, his Sixth Amendment right to counsel had attached at the time he was interviewed by the officers. Id. at 793-94.

Here, Appellant was arrested on the outstanding felony warrants for drug possession and weapons violations. He was only a suspect in his wife’s murder. An arrest for a charged offense does not trigger a person’s Sixth Amendment right to counsel for an uncharged offense. Upton v. State, 853 S.W.2d 548, 555 (Tex.Crim.App.1993). Appellant’s right to counsel did not attach on the charge in the instant case until adversary judicial proceedings were instituted. See Holloway, 780 S.W.2d at 795. This occurred when Appellant was indicted for Melissa’s murder more than two months after he spoke to the Hialeah police. Holloway is therefore inapplicable to the facts before us.

Once the Sixth Amendment right to counsel has attached, the police may not interfere with the efforts of an attorney to act as a medium between his client and the State during an interrogation. Id. at 791 (citing Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 1144, 89 L.Ed.2d 410 (1986)). Prior to that time, a suspect who has been properly advised of his right to counsel under Miranda can waive the right. See Holloway, 780 S.W.2d at 790. This is true even where the suspect has counsel. See Burbine, 475 U.S. at 429,106 S.Ct. at 1145. The trial court found that Appellant initiated the communication with the Hialeah police, was read his Miranda warnings, and still chose to give a statement about Melissa’s death. The record supports these findings. The trial court correctly applied the law to the facts and determined that Appellant knowingly, intelligently, and voluntarily waived his right to counsel. Therefore, the trial court did not abuse its discretion in denying Appellant’s motion to suppress the written statement he gave in Florida. Appellant’s first issue is overruled.

Disabled Juror

In his second issue, Appellant contends that the trial court erred in determining that juror Victoria Hamelin was disabled and in not granting Appellant’s motion for mistrial instead of discharging Hamelin as a juror.

A juror is disabled only when the juror is physically, emotionally, or mentally impaired in some way that hinders the juror’s ability to perform the duties of a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.1999). Stated another way, a disability is not limited to physical disease, but also includes “any condition that inhibits a juror from fully and fairly performing the functions of a juror.” See Reyes v. State, 30 S.W.3d 409, 411 (Tex.Crim.App.2000) (citing Griffin v. State, 486 S.W.2d 948, 951 (Tex.Crim.App.1972)). This condition may result from physical illness, mental condition, or emotional state. Reyes, 30 S.W.3d at 411; Brooks, 990 S.W.2d at 286. The determination as to whether a juror is disabled is within the discretion of the trial court. Id. Absent an abuse of that discretion, no reversible error will be found. Id.

The record before us shows that Hamelin had been impaneled along with the eleven other jurors on March 24, 2003 to hear Appellant’s case. The next morning, before the jury began to consider any evidence in the trial, Hamelin appeared before the trial judge. She explained that she had not realized until she had gone home the night before that she knew about Melissa’s murder. She further explained that she lived with her son, Scott, who was a close friend of Darla Harvey. Darla Harvey was Melissa’s aunt. Hamelin also testified that Scott was a good friend of Darla Harvey’s son, Bobby, and that they worked on cars together. She told the court that her son owned the house in which they lived and that he .allowed her to live there rent free.

The trial court found that Hamelin appeared to be in an agitated and nervous condition as she related these facts to the court. The court further stated its opinion that “she’ll recollect more facts about this case during the trial and that will cause her further agitation.” The court then dismissed Hamelin from the jury. Based upon our review of the record, we hold that the trial court did not abuse its discretion by determining that juror Hamelin was disabled as that term is used in Article 36.29 or by denying Appellant’s motion for mistrial instead of dismissing her. Appellant’s second issue is overruled.

Lbssbr-included Offenses

In his third issue, Appellant contends that the trial court erred in denying his request for a jury instruction on the lesser included offenses of manslaughter, criminally negligent homicide, and aggravated assault.

Standard of Review

Both Appellant and the State agree that we must apply a two-pronged test to determine whether a charge on a lesser included offense should be given. See Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). Second, some evidence must exist in the record that would permit a rational jury to acquit the defendant of the greater offense while convicting him of the lesser included offense. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998).

Applicable Law and Analysis

Manslaughter, criminally negligent homicide, and aggravated assault are lesser included offenses of murder. Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App.2000). Therefore, the first prong of the test has been satisfied.

The State contends that the second prong of the test has not been satisfied because the evidence does not raise the issue of any of the three lesser included offenses. The State emphasizes Appellant’s testimony that Melissa died in the bathtub from a self-induced drug overdose. A defendant’s own testimony that he committed no offense or testimony that otherwise shows no other offense occurred at all is not adequate to raise the issue of a lesser included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App.2001). If a defendant either presents evidence that he committed no offense or presents •no evidence, and there is no evidence showing that he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required. Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994)).

Appellant responds that this Court must consider his statement to the three Hialeah police officers that was introduced into evidence by the State. Specifically, he asks us to consider the following portion of his statement:

Policeman: How long did the episode in the trailer — when your wife entered the trailer and you had the confrontation with her?
Appellant: I don’t know. I don’t know. It was — was—I wasn’t thinking. All I was thinking was this person’s gonna kill me, or I don’t know. I need to defend myself because why would somebody want to come in at the house at 5:00 in the morning if their — if their — the subject for them to be there is to kill me or, I mean, why would they be inside the house when all the cars are out there? That’s the only thing that came to my mind. Somebody wants to kill me. I just went ballistic. I wasn’t thinking. I — I got up. The first thing when I got up was, boom, the 12, gauge. I wasn’t thinking, Who the hell is this? I was just thinking. This person’s gonna kill me.
Policeman: At one point was this person attacking you?
Appellant: Yeah. There was — yeah.
Policeman: Which ended up being your wife?
Appellant: Yeah, it was.
Policeman: Did you realize — did you know if it was a male or female while you were fighting with the individual?
Appellant: No, because it was dark. I just I just noticed long hair. I noticed long hair. I didn’t notice it was male or female. I just noticed long hair.
Policeman: How — how tall is your wife?
Appellant: I don’t know.
Policeman: Was she taller than you?
Appellant: A little bit, yeah.
Policeman: She heavier than you?
Appellant: No.
Policeman: Lighter than you?
Appellant: Yeah.
Policeman: Were you expecting your wife?
Appellant: No. No. Every time — the night before I told her — I asked her if she was gonna come home and she said no, she had to go to a friend’s house. And I used to ask her this every time she was out. Please call me before you come to the house. And she always did. I told her, ‘If you’re gonna come to the house, call me after 10:00 in the morning. Let me know you’re coming to the house.’ 11:00, she called me. ‘Hey, baby, I’m coming home. It is cool?’ I’m like, Yeah, come on.’ That night she — -she—she never did anything like that. I mean, I told her, ‘Hey, call me before you show up.’ Okay. She never came to the house. If she didn’t get ahold [sic] of me, she would not come to the house. She will not come to the house. I was always paranoid. I was always paranoid and — she knew, she wouldn’t come to the house. And this morning I — I never thought she was gonna come home because she said, ‘I’m going to a friend’s house and I’m going to stay over there. I’ll probably stay over there ‘till the day I go to Iowa’ or Ohio or whatever the hell. I don’t know. I don’t even know where she was going. Ohio.
Policeman: Has anybody ever come into your house and either attempted to kill you or rob you or — shoot you?
Appellant: The phone calls. I’ve been shot a couple of times. Calls, ‘I’m gonna Mil you.’ I told this to my probation officer. Somebody’s threatening me.

Appellant concedes that he disavowed this entire statement in front of the jury. He reiterated to the jury that he had done nothing to cause Melissa’s death. We must therefore determine whether Appellant’s statement to the jury is evidence that would permit a jury rationally to find that if he was guilty, he was guilty only of manslaughter, criminally negligent homicide, or aggravated assault. See Mathis, 67 S.W.3d at 925.

Manslaughter requires proof that the defendant acted recMessly; that is, that he consciously disregarded a substantial risk of which he was aware. See Tex. Pen.Code Ann. §§ 19.04(a), 6.03(c) (Vernon 2003). Criminally negligent homicide requires proof that the defendant acted with criminal negligence; that is, that he ought to have been aware of a substantial and unjustifiable risk that the result would occur. See Tex. Pen.Code Ann. §§ 19.05(a), 6.03(d) (Vernon 2003). Aggravated assault requires proof that the defendant intentionally, knowingly, or recMessly caused serious bodily injury to another or used or exhibited a deadly weapon during the commission of the assault. See Tex. Pen.Code Ann. §§ 22.01(a), 22.02(a) (Vernon 2003).

In order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens rea. Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994). For an act to constitute any crime, there must first be a “vicious will.” Id. (citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). In his statement to the Hialeah police, which was part of the evidence before the jury, Appellant did not admit to a bad act or a vicious will. Instead, he admitted that he was thinMng only about his bodily safety. Therefore, by his own testimony, Appellant could not have been guilty of these lesser included offenses because he did not have the mens rea or vicious will necessary to commit these offenses. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986). If believed by the jury, this evidence would require Appellant to be acquitted of any crime rather than found guilty of a lesser included offense of murder.

For a defendant to be entitled to a lesser included offense instruction, the evidence must establish a lesser included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000). "When the defendant merely denies commission of any offense and, therefore, presents no evidence establishing commission of a lesser included offense, he is not entitled to a charge on the lesser offense. Fraga v. State, 940 S.W.2d 736, 738 (Tex.App.-San Antonio 1997, pet. refd). We therefore hold that Appellant’s disavowed statement to law enforcement denying a vicious will in the events leading up to the death of his wife is not evidence of manslaughter, criminally negligent homicide, or aggravated assault. As such, the trial court did not err in failing to submit the requested instruction. Appellant’s third issue is overruled.

Disposition

Having overruled Appellant’s three issues, the judgment of the trial court is affirmed.

      . Appellant does not raise any Fifth Amendment issues on appeal. Therefore, our discussion is limited to the Sixth Amendment.


author: PER CURIAM.

text:
    In the Interest of J.I., A Child
    No. 2-04-299-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 3, 2005.
    Lynn M. Blowers, Arlington, for Appellant.
    Charles M. Mallín, David Curl, Asst. Crim. Dist. Atty’s, James Teel, Asst. Dist. Atty, Anne Swenson, Fort Worth, Duke Hooten, Appellate Atty, Office of Gen. Counsel Special Litigation Unit, Austin, for Appellee.
    Panel M: GARDNER, WALKER, and MCCOY, JJ.
   ORDER

PER CURIAM.

This is an accelerated appeal of an order terminating parental rights. See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2002); see also TEX. FAM. CODE ANN. § 109.002(a) (Vernon 2002) (“An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts.”). In cases where the children are under the care of the Texas Department of Protective and Regulatory Services (“the Department”), we must render our decision with the least possible delay. Id. § 263.405(a). We may not extend the time for filing an appellate brief except on a showing of good cause. Id. § 263.405(h) (emphasis added).

In a non-termination of parental rights appeal we may grant a briefing extension when a reasonable explanation is given for the needed extension. TEX. R. APP. P. 10.5(b)(1)(C), 38.6(d). A reasonable explanation is “any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex.1989). However, in termination of parental rights appeals the legislature has statutorily restricted briefing extensions to those based on a showing of good cause. TEX. FAM. CODE ANN. § 263.405(h). A showing of good cause requires more than a reasonable explanation. See Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977) (recognizing reasonable explanation requirement was a relaxation or prior good cause requirement). Courts have held that a general allegation of workload, standing alone, does not constitute good cause for an extension. Hubbard v. State, 649 S.W.2d 167, 169 (Tex.App.-Dallas 1983, no pet.). In limited situations, for very limited periods of time, however, workload may constitute “good cause” justifying an extension of time to file a brief. Newfield v. State, 766 S.W.2d 408, 409 (Tex.App.Dallas 1989, order).

Here, the Department’s brief was due on December 20, 2004. The Department filed a motion for an extension of time seeking an extension of its briefs due date until January 31, 2005. The grounds stated in the motion are that a careful reading of the 426-page reporter’s record is required to address the sufficiency challenges raised by appellant; that the appellate division did not receive appellant’s brief until December 9, 2004, and that the brief was not assigned to an attorney until December 15, 2004, due to a mix up caused by ongoing office renovation; that the attorney assigned to draft the brief will be out of the office “for several days” due to the holidays; and that in recent weeks, the attorney assigned to draft the brief for the Department has filed briefs in five other cases and responded to one motion for rehearing.

Although the Department’s motion indicates that in recent weeks the attorney assigned to draft the Department’s brief in this case has completed several other briefs, the motion does not show what pending work will prevent counsel from immediately turning his attention to the present appeal. In short, the Department’s extension motion does not supply sufficient detail to show good cause for the requested forty-day extension of time. Nor have we been provided with any details stating that counsel has examined the record in this case (other than his statement regarding the number of pages contained in the reporter’s record) or that he has made a professional assessment of how much time is needed to complete the Department’s brief, that is, that it will take forty days. There has been no showing or allegation that it is not possible to prepare the Department’s brief in any shorter period of time.

Therefore, we grant the motion for extension, but only for three weeks. The Department’s brief is due January 10, 2005.

The clerk of this court is directed to transmit a copy of this order to the attorneys of record.


author: Justice FRANCIS.

text:
    Phillip J. WEBB, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-03-00710-CR, 05-03-00711-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 10, 2005.
    Rehearing Overruled March 8, 2005.

      Catherine Bernhard, Red Oak, for appellant.
    Charles Patrick Reynolds, Asst. Dist. Atty., William T. (Bill) Hill, Jr., Dallas, for state.
    Before Justices MORRIS, FITZGERALD, and FRANCIS.
   OPINION

Opinion by

Justice FRANCIS.

Phillip J. Webb pleaded guilty to two charges of sexually assaulting his adopted daughter, and the jury set punishment at twenty years in prison and a $10,000 fine in each case. The trial court ordered that the sentences be served consecutively. In two issues, appellant argues the trial court reversibly erred in failing to admonish him, before accepting his pleas of guilty, that (1) he would be required to register as a sex offender and (2) he could be subject to consecutive sentences. We affirm.

On the day of trial, before a jury was selected, appellant pleaded guilty to two indictments alleging that he penetrated S.W.’s sexual organ and anus with his finger. Appellant elected for the jury to decide punishment. Before accepting appellant’s pleas, the trial court orally admonished appellant regarding the range of punishment for the offenses, the right to have a jury determine guilt beyond a reasonable doubt, and his right not to testify. The trial court, however, did not admonish appellant on the record about the sex offender registration consequences of his plea. The trial court also did not tell appellant of the possibility of consecutive sentences.

Evidence at the punishment hearing showed that appellant had been the stepfather of S.W. and R.K. since they were toddlers. Appellant adopted S.W., but R.K’s biological father would not relinquish his parental rights. Appellant began touching the 'girls inappropriately almost immediately. ■ He began by pinching their nipples while playing a game. He also bathed both girls and continued to bathe S.W. until she was in the ninth grade. When the girls were in fifth or sixth grade, he began shaving their legs and trimming their pubic hair.

When S.W. began playing volleyball at school, appellant told her she needed to start wearing tampons, instead of pads. Over a period of time, appellant inserted several tampons into S.W. to teach her how to use them. At one point, appellant offered to teach S.W. how to French kiss, but S.W. said it would be “gross.” Appellant responded that it would not be gross if she would close her eyes and not think about it being him.

When the girls entered junior high, appellant routinely began performing vaginal “examinations” on them, supposedly to make sure they had cleaned themselves properly or did not have an infection. Appellant would have each girl lie on the bed completely naked with her legs apart while he inspected her vagina with a flashlight. S.W. estimated the examinations took about twenty minutes. During the inspections, S.W. said appellant would sometimes “try to point out like when you have sex, you have to break that skin. He would say yours is still there.”

During one of the vaginal inspections, while S.W. was naked on the bed, appellant told S.W. he wanted her to know how sex felt. S.W. was reluctant, but appellant told her he was not “trying to get [her] off’ and she would be okay. Appellant sat behind S.W. with his arms around her and rubbed her vagina with his hand. He put his finger in her vagina. During this time, S.W. said, appellant was “breathing heavy.” S.W. said she was “uncomfortable” and tried to “squirm” away, but appellant told her to “hold still.” Although S.W. had been “confused” in the past about some of appellant’s conduct, she testified she was no longer confused after this incident. On three or four other occasions, appellant inserted his finger in her anus.

Appellant did not testify at the punishment hearing. Despite the fact he pleaded guilty, he defended against the allegations with suggestions that the girls had incorrectly perceived the events. In fact, his mother testified that she did not believe appellant had sexually abused the girls, only that he had acted “inappropriately.” When asked whether she was aware that appellant had pleaded guilty to sexual assault, the mother said he pleaded guilty “[b]ecause he felt like that he was going to get 20 to 40 years” and he was hoping for probation.

In his first issue, appellant argues that his convictions must be reversed because the trial court failed to admonish him, before accepting his pleas of guilty, that he would have to register as a sex offender.

Article 26.13(a) of the Texas Code of Criminal Procedure requires the trial court to admonish a defendant, either orally or in writing, of the sex offender registration consequences of his plea. See Tex. Code Crim. PROC. Ann. art. 26.13(a)(5), (d) (Vernon 1989 & Supp.2004-05). We have reviewed the record, and although the trial court gave appellant many admonishments, it did not warn him of the sex offender registration consequences of his plea. This total failure by the trial court violates the mandatory language of article 26.13(a) and constitutes error. The question is whether the error requires reversal.

We conduct the harm analysis of statutory errors under Texas Rule of Appellate Procedure 44.2(b), disregarding the error unless it affected appellant’s “substantial rights.” See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002); Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd); see also Tex. R.App. P. 44.2(b). We will not overturn the conviction unless, after examining the record as a whole, we conclude that the error may have had a “substantial influence” on the outcome of the proceeding. Burnett, 88 S.W.3d at 637. In other words, if we have a “grave doubt” about whether the conviction was free from the substantial influence of the error, then we must treat the error as if it did. Id. “Grave doubt” occurs when the matter is so evenly balanced that the reviewing court believes the record is “in virtual equipoise as to the harmlessness of the error.” Id. at 637-38.

In making this review, we are mindful that neither appellant nor the State has any formal burden to show harm or harmlessness under rule 44.2(b). Burnett, 88 S.W.3d at 638. Rather, this Court ■has a duty to assess harm after a proper review of the record. Id. We independently examine the record for indications that appellant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court’s failure to admonish on the sex offender registration consequences. See id. We begin with the first prong.

To warrant a reversal on direct appeal, the record must “support an inference that appellant did not know the consequences of his plea.” Burnett, 88 S.W.3d at 638 (emphasis in original); Hwang, 130 S.W.3d at 499. A silent record may support such an inference. Burnett, 88 S.W.3d at 638; Hwang, 130 S.W.3d at 499. A silent record, for these purposes, is one in which there is no indication that the appellant was ever informed about the specific consequences of his plea. Hwang, 130 S.W.3d at 500. A record that shows the appellant was informed, by the court or in some other way, about the specific consequences of his plea creates a rebuttable presumption that the appellant knew the consequences. Id.

In this case, there is no indication in the pretrial proceedings, voir dire, or otherwise that appellant was aware that he would have to register as a sex offender. The judge did not give the admonishment either orally or in writing, and the subject simply did not arise in any other context. Under these circumstances, we conclude an inference exists that appellant did not know the sex offender registration consequence of pleading guilty.

We next examine the record for indications .of whether appellant was misled or harmed by the lack of the admonishment. “Harm” in this context means the appellant probably would not have pleaded guilty but for the failure to admonish. See Carranza v. State, 980 S.W.2d 653, 657-58 (Tex.Crim.App.1998). Our question then becomes, is there any indication in. the record to suggest that if appellant had known he would be required to register as a sex offender, he either would or would not have still been willing to plead guilty? Our review of the record suggests appellant would have entered the guilty pleas, even if he had received the admonishment.

We begin with evidence adduced at punishment. It showed that appellant systematically sexually abused S.W. for years, taking advantage of his position as her father figure. The abuse included pinching her nipples as part of a “game,” bathing her until her teenage years, shaving her legs and trimming her pubic hair, routinely examining her genital area, and inserting tampons into her vagina. S.W. testified she did not initially realize that this was not normal behavior by a father. Even when appellant inserted his finger in her anus, under the pretense of a medical exam, she was uncertain. Any uncertainty, however, dissolved once appellant decided to teach her “how sex felt.”

Recognizing how these facts might play before a jury, the evidence showed that appellant decided to enter guilty pleas on the day of trial because he wanted to avoid twenty to forty years in prison and hoped he would be granted probation. In other words, the record suggests appellant used his guilty plea in an effort to gain an advantage in sentencing: he hoped the jury would be more lenient if he pleaded guilty. Given that appellant’s desire was to avoid prison, we believe it unlikely he would have been unwilling to plead guilty had he known of the sex offender registration requirement.

This conclusion is further supported by the fact that appellant filed two post-verdict motions in this case and failed to raise this issue in either, despite the fact that the judgment clearly informed appellant that he would have to register as a sex offender. Examining the record as a whole, we are not left with a grave doubt in this case as to whether appellant’s substantial rights were affected. In other words, the record supports a conclusion that appellant would have pleaded guilty even if he had been given the admonishment. We resolve his first issue against him.

In his second issue, appellant argues his plea was rendered involuntary by the trial court’s failure to admonish him of the possibility of consecutive sentences. He argues that “stacking” is a direct consequence of his pleas of guilty and was “material” to his decision to plead guilty. He further asserts there is nothing in the record to show that he was “even aware that ‘stacking’ was a possibility.”

Appellant’s last assertion is not supported by the record. To the contrary, the record contains evidence that stacking of sentences was discussed in appellant’s presence during voir dire. On several different occasions, the prosecutor told the panel “only the judge can decide whether or not he wants that time in each case to run at the same time or to be stacked one on top of the other.” Specific numbers were used to illustrate possible sentences involving concurrent and consecutive orders by the trial court. One member of the venire wanted to know whether the trial court intended to stack the sentences.

Additionally, appellant’s mother testified that her son wanted to avoid a twenty- to forty-year sentence. Sexual assault is a second-degree felony. See Tex. Pen.Code Ann. § 22.011(f) (Vernon Supp.2004-05). The maximum prison term for a second-degree felony is twenty years. See Tex. Pen.Code Ann. § 12.33(a) (Vernon 2003). For appellant to receive forty years in these cases, the trial judge would have to impose consecutive sentences.

Contrary to appellant’s assertion that there was no evidence that he was aware of the possibility of consecutive sentences, we conclude there is ample evidence that appellant was aware of the possibility that his sentences could be stacked. Under these circumstances, we cannot conclude appellant’s pleas were rendered involuntary by the trial court’s failure to admonish on the possibility the sentences would be stacked. Cf. Burnett, 88 S.W.3d at 641 (concluding trial judge did not err in failing to admonish on range of punishment when record contained evidence to show appellant knew range of punishment he faced). We resolve the second issue against appellant.

We affirm the trial court’s judgments.

      . Although the State acknowledges that the admonishment is required by statute, it failed to analyze this case as statutory error. Instead, it argued sex offender registration was a collateral consequence of the plea, only substantial compliance with the statute was required, and appellant therefore had to make an “affirmative showing” of harm. To the contrary, when an admonishment is statutorily required and the trial court wholly fails to give it, there is no substantial compliance. See Burnett, 88 S.W.3d at 637 ("To claim that an admonishment was in substantial compliance even though it was never given is a legal fiction.”). In addition, determining whether sex offender registration is a collateral or direct consequence of the plea is unnecessary to our analysis because the admonishment was statutorily required. Regardless, sex offender registration is a direct, though non-punitive, consequence. Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App.2004). Finally, as explained above, in a statutory harm analysis, neither side has a burden to show ' harm or harmlessness under rule 44.2(b).'


author: ANNE GARDNER, Justice.

text:
    Anna Haslam FULLER and Jason Fuller, Individually and on Behalf of Others Similarly Situated, Appellants, v. STATE FARM COUNTY MUTUAL INSURANCE COMPANY, State Farm Fire and Casualty Company, State Farm General Insurance Company, State Farm Mutual Automobile Insurance Company, State Farm Mutual Insurance Company, State Farm Fire and Casualty Company, State Farm Lloyd’s Company, Val Coleman, Patrick Titus, Brent Bins, Individually and on Behalf of Other Adjusters of State Farm Who are Similarly Situated and Any Other State Farm Related Entity That Underwrites Automobile Insurance and Adjusters Automobile Insurance Claims.
    No. 2-03-284-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 13, 2005.

      Art Brender, Fort Worth, for Appellants.
    Hunton & Williams, LLP and Allen Butler, Dallas, and Shannon Gracey, Ratliff & Miller, LLP and Christopher Lyster, Fort Worth, for Appellees.
    Panel A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

Anna Haslam Fuller (Haslam) and Jason Fuller appeal the trial court’s refusal to certify this case as a class action. We affirm because Appellants failed to show that they were members of the classes they sought to represent.

Haslam was involved in a three-car collision. Jenny Carter was driving the forward car, Haslam the middle car, and Andrea Snodgrass the back car. Haslam claimed that she came to a complete stop behind Carter’s car; then she was rear-ended by Snodgrass, which caused Has-lam’s car to then rear-end Carter’s car. Snodgrass claimed that Haslam suddenly swerved into Snodgrass’s lane of traffic, which was the left lane, when Haslam came upon construction in the right lane. Snodgrass could not stop her car in time to avoid hitting the left rear side of Haslam’s vehicle because Haslam changed lanes too quickly.

Both Haslam and Snodgrass were insured by State Farm Mutual Automobile Insurance Company (State Farm) and both submitted claims concerning the accident. The claims were originally handled by different adjusters but eventually both were assigned to Brett Bins.

Bins concluded that Haslam was at fault because of the location of the physical damage on the left rear side panel of her car, but he neglected to note his liability determination in the claim file. In February 1999 State Farm authorized the repair of Snodgrass’s vehicle without charging Snodgrass a deductible. State Farm paid for the damages to Snodgrass’s vehicle in July 1999. It also paid for Haslam’s property damages, except for a $500 deductible.

Appellants sued State Farm on April 9, 1999, alleging that when State Farm adjusted claims in which both drivers were insured by State Farm (known as “double-with” claims), State Farm pursued a uniform practice of requiring both State Farm insureds to incur a deductible by denying both insureds’ claims for liability and requiring them to have their vehicles repaired under the collision coverage of their policies. Appellants sought relief individually and on behalf of all other members of classes of State Farm insureds involved in double-with accidents.

State Farm filed a motion to strike Has-lam’s class allegations on the ground that Appellants were not members of the classes they sought to represent. Appellants filed a response, and State Farm filed a reply. The trial court then conducted a non-evidentiary hearing on the motion to strike class allegations. In a letter ruling, the trial court explained that it would grant State Farm’s motion to strike class allegations because it determined that the named plaintiffs were not representatives of the classes of persons they purported to represent. The trial court subsequently entered a written order striking the class allegations. Appellants assert that the trial court erred in refusing to certify this case as a class action.

Trial courts enjoy a wide range of discretion in deciding whether to maintain a lawsuit as a class action. Vincent v. Bank of America, N.A., 109 S.W.3d 856, 864 (Tex.App.-Dallas 2003, pet. denied). Our review of the trial court’s decision on appeal is strictly limited to determining whether there has been an abuse of discretion in denying certification. Id> A trial court abuses its discretion when it: (1) acts arbitrarily or unreasonably; (2) does not properly apply the law to the undisputed facts; or (3) rules on factual assertions not supported by the record. Id. Furthermore, a trial court does not abuse its discretion when it bases its decision on conflicting evidence. Vinson v. Tex. Commerce Bank-Houston, 880 S.W.2d 820, 823 (TexApp.-Dallas 1994, no writ). We do not view the evidence in the light most favorable to the trial court’s decision in either granting or denying certification, nor do we entertain every presumption in favor of the trial court’s decision. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690 (Tex.2002). Instead, we determine whether a trial court, before ruling on a class certification, has performed a “rigorous analysis” of whether all prerequisites to certification have been met. S.W. Refining Co. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000).

An appellant seeking to reverse an order denying class certification faces a formidable task. Appellants must not only demonstrate that they satisfied all the rule 42 requirements for certification, but also show that the trial court’s refusal to certify the classes was legally unreasonable under the facts and circumstances of the case. See Tex.R. Civ. P. 42; Vinson, 880 S.W.2d at 824.

According to rule 42, class actions must satisfy four threshold requirements: 1) numerosity (“the class is so numerous that joinder of all members is impracticable”); 2) commonality (“there are questions of law or fact common to the class”); 3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”); and 4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). See Tex.R. Civ. P. 42(a). In addition to the requirements of rule 42(a), plaintiffs must also satisfy at least one of the subdivisions of rule 42(b). See Bernal, 22 S.W.3d at 433. Rule 42 expressly states that only “members of a class may sue.” Tex.R. Civ. P. 42(a). Thus, as a preliminary matter, plaintiffs must establish that a defined class exists and that the class representatives fall within the class. E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977); In re A.H. Robins Co., Inc., 880 F.2d 709, 727 (4th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 659 (D.Minn.1991); Brittian v. Gen. Tel. Co., 533 S.W.2d 886, 889 (Tex.Civ.App.-Fort Worth 1976, writ dism’d); Allred v. Heaton, 336 S.W.2d 251, 262 (Tex.Civ.App.-Waco 1960, writ ref'd n.r.e.).

Haslam seeks to represent the following classes:

1. Each individual who has been involved in an auto accident involving another State Farm insured in which no or each insured was determined to be at fault, each and/or either State Farm insured was required to make a claim on their own policy and thus incur a deductible within two years prior to the filing of this suit; and
2. Each individual who has been involved in an auto accident involving another State Farm insured in which no or each insured was determined to be at fault each and/or either State Farm insured was required to make a claim on their own policy and thus incur a deductible within four years prior to the filing of this suit.

Thus, in order to qualify as a class representative, Haslam must show that either both she and Snodgrass were determined by State Farm to be at fault, or both she and Snodgrass were determined to be not at fault.

Haslam contends that she has standing to pursue her claim in an individual capacity and therefore is a class representative because her claims are typical and common to the classes in that there is a nexus between State Farm’s wrongful conduct and her damages, which constitute the payment of her deductible and increased insurance premiums. Haslam argues that because State Farm made the determination concerning liability after suit was filed in what she alleges was an attempt to deprive the class of the ability to obtain relief, she may still represent the class.

We disagree. Before the lawsuit was filed, State Farm determined that Snod-grass was not at fault, and Snodgrass was not required to pay a deductible to the repair facility that repaired her automobile. Only Haslam was determined to be at fault, and there is no evidence in the record that State Farm manipulated its liability findings to prevent Haslam from qualifying as a class representative.

Because Haslam was not a member of the classes she sought to represent, the trial court did not abuse its discretion by striking the class allegations. We overrule Appellants’ point and affirm the trial court’s order striking the class allegations.

      . Haslam was listed as an additional driver on Fuller’s State Farm policy. Haslam and Fuller were engaged on the date of the accident. They have since married.

      . Because rule 42 was patterned after Federal Rule of Civil Procedure 23, federal decisions and authorities interpreting current federal class action requirements are persuasive in Texas actions. Bemal, 22 S.W.3d at 433; Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000); see Fed.R.Civ.P. 23.

      . Because Haslam did not meet the preliminary requirement of showing that she was a member of the classes she purported to represent, the trial court was not required to analyze whether she met the other rule 42 class certification requirements or to consider a trial plan. See N. Am. Mortgage Co. v. O’Hara, 153 S.W.3d 43, 44 (Tex.2004) (per curiam); Bernal, 22 S.W.3d at 435.


author: SUE WALKER, Justice.

text:
    Thomas Conrad ILLINGWORTH, Appellant, v. The STATE of Texas, State.
    No. 2-03-369-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 13, 2005.

      Timothy J. Rountree, Dallas, for Appellant.
    Bruce Isaacks, Criminal District Atty., Charles E. Orbison, Daniel Hoffman, Andrew Lloyd, Amanda Parker, Asst. District Attys., Denton, for Appellee.
    Panel F: DAUPHINOT, HOLMAN, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Thomas Conrad Illingworth appeals from the trial court’s judgment finding him guilty of unlawfully carrying a weapon. Following a bench trial, the trial court sentenced Illingworth to 300 days in the Denton County jail, but suspended the sentence and placed Illingworth on community supervision for a period of twenty-four months and imposed a $500 fine. In a single point, Illingworth complains that the trial court erred by rejecting his traveling defense. We will affirm.

II. Factual and Procedural Background

Illingworth resides in Kaufman County and regularly visits his two children, who live in Denton County, on weekends. While visiting, Illingworth typically stays overnight at a hotel or with a friend.

On January 5, 2003 just before 1:00 a.m., Officer Jay Powell of the Lewisville Police Department was conducting surveillance at the Days Inn Hotel in Denton County. He saw Illingworth’s truck pull into the Days Inn parking lot and park in the fire lane. Officer Powell observed Illingworth going through his belongings in the truck, opening and closing the various doors and the tool chest located in the truck’s bed. Officer Powell recognized Illingworth because Illingworth had arrived at the hotel the previous night while Officer Powell was conducting surveillance.

A man approached Illingworth and began to speak with him. At this point, Officer Powell also approached Illingworth to ask why he had parked his truck in a fire lane and to discuss a problem with narcotics that was occurring in and around that particular hotel. Illingworth told Officer Powell that he was staying at the hotel because he was in town visiting his two children. Illingworth subsequently consented to a search of his vehicle, and Officer Powell found a .40 caliber Smith & Wesson in the driver’s door panel. Illing-worth did not have a license to carry the handgun, and Officer Powell arrested him. The trial court found Illingworth guilty of unlawfully carrying a weapon, and this appeal followed.

III. TRAVELING Defense To Unlawfully Carrying A Weapon

Illingworth argues that the trial court erred when it concluded that the traveling defense to unlawfully carrying a weapon did not apply to him. Specifically, Illing-worth maintains that the trial court erred by finding that “he was required to store the handgun in some place other than his vehicle” once he reached his destination. Illingworth further argues that he was “continuing his journey at the time that he encountered the police and was still covered by the traveling defense.” The State contends that Illingworth was not traveling at the time of his arrest because his status as a traveler ceased to exist when he reached his destination, Lewisville. Additionally, the State argues that “it is by no means clear” that Illingworth was ever a traveler in his trip from Kaufman County to Denton County.

A. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the judgment 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 infer-enees 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 Cmm. Peoc. 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 judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

B. Traveling Defense

“A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun. ...” Tex. Penal Code Ann. § 46.02(a) (Vernon 2003). However, “[s]ection 46.02 does not apply to a person who ... is traveling.” Id. § 46.15(b)(3) (Vernon Supp.2004-05). Section 46.15(b)(3)’s traveling exception is treated as a defense. See id. § 2.03(e) (Vernon 2003) (“A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”) The question of whether one is a “traveler” is a fact question to be resolved by the trier of fact. See Smith v. State, 630 S.W.2d 948, 950 (Tex.Crim.App.1982); Evers v. State, 576 S.W.2d 46, 50 (Tex.Crim.App. [Panel Op.] 1978).

Despite judicial urging since 1898 for a statutory definition of traveling, the Texas Legislature has never defined the term. Compare Bain v. State, 38 Tex.Crim. 635, 44 S.W. 518, 518 (1898) (“We would suggest ... that the legislature define what is meant by a ‘traveler.’ ”) with Moosani v. State, 914 S.W.2d 569, 575 (Tex.Crim.App. 1995) (Baird, J. dissenting) (recognizing that “the Legislature had not defined traveling in its many sessions since we began interpreting it”); see also Robert G. Newman, A Farewell to Arms — An Analysis of Texas Handgun Control Law, 13 St. MaRy’s Law J. 601, 607 (1982). The case law attempting to apply the defense is in a “condition of hopeless confusion.” See George v. State, 90 Tex.Crim. 179, 234 S.W. 87, 88 (1921); Birch v. State, 948 S.W.2d 880, 882 (Tex.App.-San Antonio 1997, no pet.).

For instance, it has been held that one traveling from county to county within the state is a traveler. See Ballard v. State, 74 Tex.Crim. 110, 167 S.W. 340, 340 (1914) (op. on reh’g) (“It is true that one who leaves San Augustine and travels to Teneha, in other county, would be a traveler, and he could carry a pistol while engaged on such a trip.”); Campbell v. State, 58 Tex.Crim. 349, 125 S.W. 893, 893 (1910) (“It has also been held in many cases that one person going from one county to another, is a person traveling.”). But it has also been held that if the trip between counties is “so short there is no real journey, then one is not a traveler.” Sanchez v. State, 122 S.W.3d 347, 356 (Tex.App.-Texarkana 2003, pet. refd) (holding driving fifteen minutes between cities in different counties did not constitute traveling). Cases hold that if a traveler loiters along the way, or unnecessarily deviates from the course of travel, he loses his status as a traveler. Payne v. State, 494 S.W.2d 898, 899-900 (Tex.Crim.App.1973) (holding evidence defendant stopped in lounge for two hours en route from Tyler to Dallas, allegedly to await return call from building contractor he was to meet in Dallas, defeated traveling defense as a matter of law); see also Tadlock v. State, 124 Tex.Crim. 637, 64 S.W.2d 963, 964 (1933) (holding issue of whether defendant improperly deviated from the highway upon which he claimed to be a traveler should have been submitted to jury); Sanchez, 122 S.W.3d at 356 (holding defendant’s visits to friend’s homes were unnecessary deviations for pleasure not merely incidental to defendant’s journey that caused defendant to lose his status as a traveler as a matter of law, if he was ever entitled to such status). However, interruption of the journey for legitimate incidental purposes does not forfeit a traveler’s right to carry a pistol. Kemp v. State, 116 Tex.Crim. 90, 31 S.W.2d 652, 653 (Tex.Crim.App.1930) (holding twenty-minute stop for meal at restaurant did not constitute deflection from his journey that would forfeit traveler exemption). Whether one stays overnight is also a factor to be used in determining if he qualifies as a traveler. See Vogt v. State, 159 Tex.Crim. 211, 258 S.W.2d 795, 796 (1953) (explaining, “[W]e were aware of no case where one was held to be a traveler whose absence was for less than a day.”). Yet, an overnight stay is not required to claim the traveling defense. See Matocha v. State, 890 S.W.2d 144, 146-47 (TexApp.-Texarkana 1994, pet. refd) (op. on reh’g). Some cases hold that once a traveler arrives at his destination and secures a room he is no longer a traveler. See Ballard, 167 S.W. at 340 (“When the evidence shows that he went to bed after arriving at the end of his journey, gets up next morning, puts on his pistol, and goes in search of [a person], he was guilty of carrying a pistol.”); see also Stilly v. State, 27 Tex.App. 445, 11 S.W. 458, 458 (1889). Likewise, one who has returned to his home area after traveling loses his status as a traveler. Soderman v. State, 915 S.W.2d 605, 609 (Tex.App.Houston [14th Dist.] 1996, pet. refd, untimely filed). Thus, there is “no hard and fast rule” to apply when determining whether one is a “traveler” pursuant to section 46.15(b)(3) of the penal code. See Matocha, 890 S.W.2d at 147.

C. Illingworth Was Traveling, But the Evidence Supports the Trial Court’s Determination that He Lost His Status as a Traveler When He Arrived at His Destination

Illingworth resides in Scurry, Texas, which is located in Kaufman County. To reach his children, he must travel through three counties: Kaufman County, Dallas County, and Denton County. See Ballard, 167 S.W. at 340. [RR2: 27] In its brief, the State points out that the distance between Lewisville (in Denton County) and Scurry “is approximately 60 miles and takes roughly one hour and twenty minutes to travel.” Illingworth testified .that he makes the trip every weekend and that he stays overnight, either in a hotel or at a friend’s house. See Vogt, 258 S.W.2d at 796. Illingworth does not remain in Lew-isville for long periods of time, only a few days. In this case, he arrived Friday night, January 3. Furthermore, Illingworth drives his truck to Lewisville; he does not walk, ride a bicycle, or use any other mode of travel. See Kemp, 31 S.W.2d at 653.

The purpose of Illingworth’s journey was to visit his children. See id. Moreover, the purpose for carrying the handgun was not contrived. See Birch, 948 S.W.2d at 882. Illingworth testified, “I kept all my guns with me when I was leaving my house because my house had been broken into several times, as I kept other belongings locked in the tool box.” Upon arriving in Lewisville, he either registers at a hotel or stays with a friend. Based on our examination of the record, he does not own a house, rent an apartment, or have any other related interest in a dwelling in the Lewisville area. At the time of his arrest, Illingworth had neither returned back to Kaufman County nor deviated from his course of travel and loitered. See Payne, 494 S.W.2d at 900. Accordingly, we hold that Illingworth conclusively established that he was “traveling” as he journeyed from Scurry to Lewisville. See Tex. Penal Code Ann. § 46.15(b)(3); Campbell, 125 S.W. at 893.

It appears from the record that the trial court determined that Illingworth was traveling as he proceeded from Scurry to Lewisville, but then implicitly found that Illingworth’s status as a traveler ended when he reached Lewisville, prior to his arrest. The court stated:

Well, I’m wondering if you believe the traveling defense requires — in this particular case — once he reaches his destination, Denton County, to then have him take the weapons outside of his vehicle, secure them in his room so that while he’s in Denton County, he then is able to travel to and from.

The trial court further opined:

Okay. I don’t believe the law is that once you reach a destination that you’re allowed to have the weapon in the vehicle unless it’s adequately secured and away from things. I don’t find that in this particular case since it’s on the side of the pocket.
I don’t doubt — dispute the fact that you came from Scurry, Van Zandt County [sic]. The issue is whether or not the law allows you to have your weapon in the side door while traveling around Denton County and/or while you’re— leave it there for the night. I don’t think it does.

The present facts are analogous to the facts in Stilly v. State, 27 Tex.App. 445, 11 S.W. 458 (1889) and in Evers. In Stilly, the court held that a defendant who had traveled to Gainsville and stopped at a wagon yard outside town was a traveler, but that he lost his status as a traveler when he entered the town to consume liquor at the bar. 11 S.W. at 458. The appellate court explained,

It would be an unreasonable interpretation of the intent of the law to hold that a person traveling might stop in a town or city, and idly stroll through its streets and visit its gambling dens and saloons and public places, armed with a pistol. The practical result of such an interpretation of the statute would cause our cities and towns to be infested with armed men, while the citizens of such places would be prohibited from carrying arms to protect themselves from these privileged characters. We are of opinion, therefore, that the evidence does not show that the defendant, at the time he was found in the gambling-house with the pistol upon him, was a “person traveling,” within the meaning of the statute. He was not then traveling. He was not engaged in any business connected with his journey. If he was so engaged it devolved upon him to show it, which he failed to do. His having the pistol on his person at the time, place, and under the circumstances proved, made a prima facie case of guilt against him, and it devolved upon him to establish the facts or circumstances on which he relied to excuse or justify the prohibited act.

Id. at 458-59. Likewise, in Evers, the evidence showed that the defendant traveled from Louisiana to Dallas, but continued to carry his handgun on or about his person while he drove about Dallas the following day. 576 S.W.2d at 50. The court of criminal appeals held that because the defendant had arrived at his destination and secured a room, he was no longer “traveling.” Id.

Here, Illingworth was arrested on his second evening in Lewisville after he had already stayed one night in the Days Inn. Although Illingworth qualified as “traveling” while driving from Scurry to Lewis-ville, and from Lewisville to Scurry, we cannot conclude that the determination of the trial court, as finder of fact, that Illing-worth was not in the course of traveling when he was arrested for unlawfully carrying a weapon is supported by legally insufficient evidence. See, e.g., Sodennan, 915 S.W.2d at 610 (“Thus, even if appellant had previously been a traveler, we find no evidence that he was in the course of that travel when he was apprehended.”). Accordingly, we overrule Illingworth’s sole point.

IV. Conclusion

Having overruled Illingworth’s sole point, we affirm the trial court’s judgment.

      . Officer Powell testified that subsequently Ill-ingworth said he was there to purchase methamphetamine. Illingworth testified that he never told Officer Powell that he was there to buy methamphetamine that night.

      . Officer Powell also found a 12-gauge shotgun, a .380 Llama pistol located in a safe mounted to the rear wall of the truck, two night vision binoculars, two knives, a set of handcuffs, a digital camera, a pair of walkie talkies, and a police scanner.

      . Mr. Newman wrote,
      Although the courts have requested that the legislature define exactly what is meant by traveler, the legislature has, as yet, failed to respond. Those accused of violating section 46.03 have repeatedly attempted to define traveler, but the Texas Court of Criminal Appeals has consistently held these definitions improper. Perhaps the only way to determine what constitutes a traveler is to delineate what the court of criminal appeals has determined a traveler is not.
      (citations omitted).

      . Illingworth testified on cross-examination, "Normally, I come in on the weekend. Sometimes if I had Friday off, I’d catch an extra day and come in. And if I couldn’t afford to rent a room for three nights, I'd stay with a friend for a night.”

      . Illingworth further testified:
      [Prosecutor]: So do you always have the gun there?
      [Illingworth]: Just when I'm traveling.
      [Prosecutor]: But even when you’re in town for a few nights, you keep it there?
      [Illingworth]: Just when I'm traveling from Scurry to a distance where I’m staying overnight.

      . However, it did not expressly state so, and the State raises this issue in its brief.


text:
    Jason Marc NORTON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00053-CR.
    Court of Appeals of Texas, Waco.
    Jan. 26, 2005.
    Mary Peter Cudd, Angleton, for appellant.
    Jerilynn K. Yenne, Brazoria County Criminal Dist. Atty., David P. Bosserman, Brazoria County Asst. Dist. Atty., Angle-ton, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ABATEMENT ORDER

PER CURIAM.

Appellant, Jason Norton, was indicted on one count of sexual assault and two counts of delivering drugs to a minor. A jury found him guilty of sexual assault and one count of delivering drugs to a minor. Jason pleaded true to an enhancement paragraph alleging a prior conviction for aggravated assault. The jury assessed punishment of life imprisonment and a $10,000 fine for the sexual assault, and forty years’ imprisonment and a $5,000 fine for delivering drugs to a minor.

Jason appeals on three issues. His first two issues claim that his motion to suppress his statement should have been granted: first, because it was not made voluntarily; second, because of delay in being magistrated. His third issue claims improper argument by the prosecution during the punishment phase.

When the voluntariness of a statement is challenged, article 38.22, section 6, of the Texas Code of Criminal Procedure requires the trial court to make written fact findings and conclusions of law as to whether the challenged statement was made voluntarily. Tex.Code CRiM. PROG. Ann. art. 38.22 § 6 (Vernon 1979). Article 38.22, section 6, is mandatory in its language and requires a trial court to file its findings of fact and conclusions of law regarding the voluntariness of a confession whether or not the defendant objects to the absence of such omitted filing. Urias v. State, No. 335-03, 2004 WL 2347789 (Tex.Crim.App. Oct. 20, 2004); Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App.1987); but see State v. Terrazas, 4 S.W.3d 720, 728 (Tex.Crim.App.1999) (“[t]he ‘right’ to findings and conclusions is a statutory ‘right’ which is forfeited by a party’s failure to insist upon its implementation”). Because the trial court did not make the required findings and conclusions, we abate this appeal for the trial court to enter findings of fact and conclusions of law regarding the voluntariness of Norton’s written statement.

The trial court shall, within thirty days after the date of this Order: (1) make appropriate orders and findings of fact and conclusions of law; and (2) deliver any orders and findings of fact and conclusions of law to the trial court clerk.

The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within forty-five days after the date of this Order.

If Norton determines, after reviewing the trial court’s findings, that he should amend or supplement his brief, his amended or supplemental brief will be due thirty days after the supplemental record is filed. If Norton files an amended or supplemental brief, the State will have thirty days thereafter to file a responsive brief.

The submission of July 14, 2004, is set aside.


author: STEVE McKEITHEN, Chief Justice.

text:
    Tommy Ray KING, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-127 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Jan. 26, 2005.
    Decided Feb. 2, 2005.

      Tommy Ray King, Midway, pro se.
    Karen Zellars, Spring, for appellant.
    John S. Holleman, Criminal Dist. Atty., William Lee Hon, Asst. Criminal Dist. Atty., Livingston, for state.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

Tommy Ray King pleaded guilty to the felony offense of burglary of a habitation with intent to commit theft. Tex. Pen. Code Ann. § 30.02 (Vernon 2003). The trial court convicted and sentenced King to six years of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, then suspended imposition of the sentence and placed King on community supervision for six years, beginning April 4, 2003. In January 2004, the State filed a motion to revoke community supervision. King pleaded “not true” to allegations that he violated the terms of the community supervision order. The trial court found that King violated the terms of the community supervision order, entered a revocation order and imposed a sentence of five years of confinement.

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978). On July 8, 2004, King was given an extension of time in which to file a pro se brief.

The appellant did not file a formal brief, but did present some argument in correspondence to the Court. According to King, he was in need of medication at the time of the hearing. The appellant also claims that he had performed some of the community service and had made some payments, but that he could not “keep up with the papers and receipts” because he was not in a “right state of mind.” The record bears no indication of mental confusion or other impairment, and no issue of competence was raised in the trial court. Because there is no evidence in the record on which to base a claim that the appellant could not understand the proceedings or assist in his defense, the issue is not an arguable one.

In a revocation proceeding, the State must establish by a preponderance of the evidence that the defendant violated the conditions of the supervision order. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984). If the State meets its burden of proof, it is within the trial court’s discretion to revoke community supervision. Id. On appeal, the question presented is whether the trial court abused its discretion in revoking the appellant’s community supervision. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983). In this case, the State alleged King committed theft while on community supervision. Deputy Glen Edwards and a teacher for the Livingston School District both testified that on October 8, 2003, King pawned property that had been stolen from the Adult Learning Center while King was on campus. King’s probation officer testified that the appellant failed to report for the months of October and December 2003, failed to obtain employment, and failed to pay court-ordered fees. Although he did some work at the courthouse, the appellant completed only 29 of the 240 hours of community service ordered by the trial court to be completed at the rate of at least 8 hours per month. The greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of community supervision; therefore, the trial court acted within its discretion.

We have reviewed the clerk’s record and the reporter’s record, and find no arguable error requiring us to order appointment of new counsel. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). The judgment is affirmed.

AFFIRMED.

      . Tex.R.App. P. 47.4.