author: MAZZANT, Justice.

text:
    Dwayne Lewis GOODRICH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-03-01720-CR, 05-03-01721-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 6, 2005.
    Rehearing Overruled Feb. 22, 2005.

      Gerald H. Goldstein, San Antonio, for Appellant.
    William T. (Bill) Hill, Jr., Karen R. Wise, Assistant District Attorney, Dallas, for State.
    Before Justices MORRIS, WHITTINGTON, and MAZZANT.
   OPINION

MAZZANT, Justice.

Dwayne Lewis Goodrich appeals his convictions for criminally negligent homicide. After the jury found appellant guilty, it assessed his punishment at seven-and-one-half years’ imprisonment and a $10,000 fine in each case. Appellant brings eight points of error contending: (a) the trial court erred by not granting appellant’s motions to quash the indictments; (b) the evidence is factually insufficient to support his convictions; (c) the trial court erred by denying appellant’s request to charge the jury on the defenses of necessity and mistake of fact; (d) the trial court erred by determining appellant was not entitled to jury-recommended community supervision for criminally negligent homicide with a deadly weapon; and (e) the trial court’s determination of appellant’s ineligibility for community supervision deprived appellant of the effective assistance of counsel. We affirm the trial court’s judgments.

BACKGROUND

At about 2:00 a.m. on January 14, 2003, a man was driving his black Mitsubishi vehicle northbound on 1-35 in Dallas when he drove into the back of an eighteen-wheeler track. The Mitsubishi bounced off the track’s trader, went left across the northbound lanes, collided with the center divider, and stopped in the far left lane of the northbound side of the freeway about nine feet from the center divider. The Mitsubishi caught on fire. The track pulled over to the right hand side of the freeway and stopped. Because of the accident, traffic in all five lanes slowed to a crawl. Three men got out of their cars to help the Mitsubishi driver out of his burning car. As they stood between the Mitsubishi and the center divider, appellant, driving a BMW, tried to drive between the Mitsubishi and the center divider. The BMW struck the Mitsubishi and hit the men helping the Mitsubishi driver. Two of the men were killed and the third was seriously injured. Appellant did not stop. The next day, appellant turned himself in to the police.

Linette Crall testified she was driving her Nissan Pathfinder sport-utility vehicle north on 1-35 at about 65 m.p.h. in the second lane from the right, and she observed the accident scene and blocked lanes ahead of her as she went over the overpass at Walnut Hill. Crall began braking, and she noticed appellant’s BMW approaching her from behind at over 100 m.p.h. Crall testified that as she decelerated, appellant drove up close behind her, traveling at least twice her speed, and then went around her to her left about 60 to 70 feet from the accident scene. After appellant passed her, Crall also moved to the left to avoid debris in the road and to help the driver of the Mitsubishi. Crall saw appellant strike the Mitsubishi, and she stopped her Nissan behind the Mitsubishi.

An accident reconstruction expert estimated from the conditions of the accident scene that appellant was going between 54 and 80 m.p.h. when he struck the men helping the Mitsubishi driver.

Appellant testified he was driving north on 1-35 at about 75 m.p.h. in the second lane from the right. After he crested the overpass at Walnut Hill, appellant saw Crall’s SUV in front of him. Although appellant testified he had excellent vision, he testified he did not see the accident scene. Appellant testified he stayed behind the SUV as it slowed from 60 m.p.h., and. he testified he could not see around the SUV. Suddenly, the SUV braked hard and swerved to the left; appellant saw brake fights to his right, so he also swerved to the left. Appellant found himself behind the Mitsubishi. Appellant realized the Mitsubishi was not moving and that he could only try to pass between the Mitsubishi and the concrete median. Appellant looked at the concrete wall to his left as he passed through the gap. Appellant testified he never saw the people he hit. Appellant knew he struck something and at first thought it was debris. However, after a few seconds, appellant realized something terrible had happened, and he panicked and drove home.

MOTIONS TO QUASH

In his seventh and eighth points of error, appellant contends the trial court erred by denying appellant’s motions to quash the indictments. The sufficiency of an indictment is a question of law. State v. Moff, No. 458-03, 2004 WL 2248097, at * 2 (Tex.Crim.App. Oct.6, 2004). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in a better position to make the determination, and appellate courts should conduct a de novo review of the issue. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court’s decision in this case was based on appellant’s motions to quash and the argument of counsel. Accordingly, we conduct a de novo review of the trial court’s ruling. See Moff, 2004 WL 2248097, at * 2.

Article 21.11 of the code of criminal procedure states that an indictment is sufficient if it “charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged.” TEX. CODE CRIM. PROC. ANN. art. 21.11 (Vernon 1989). Article 21.15 requires that an indictment alleging recklessness “must allege with reasonable certainty, the act or acts relied upon to constitute recklessness.” Id. art. 21.15. The indictments allege appellant,

did then and there recklessly cause the death of an individual,... hereinafter called complainant, to wit, while then and there operating and driving a motor vehicle, a deadly weapon,
did drive said motor vehicle at a high rate of speed, and at a speed greater than was reasonable and prudent under the circumstances then existing,
and did fail to control the speed of said motor vehicle,
and did fail to maintain said motor vehicle in a single lane of traffic,
and did fail to maintain proper lookout,
and did fail to attend to existing road conditions,
and did fail to take proper evasive action to avoid striking said complainant who was situated on and near the roadway on which said defendant was operating and driving said motor vehicle, a deadly weapon,
thereby causing said defendant to strike said complainant with defendant’s motor vehicle, a deadly weapon, which said defendant was then and there operating and driving
against the peace and dignity of the State.

Appellant argues that the manners and means alleged of committing these offenses “were not of sufficient detail to extent [sic] notice to the Appellant of the offense.” In a motion to quash, appellant asserted that the allegation “did drive said motor vehicle at a high rate of speed, and at a speed greater than was reasonable and prudent under the circumstances then existing” did not allege that the speed caused him to strike the complainant. Appellant’s argument lacks merit, however, because the last paragraph alleges that all the manners and means “thereby caus[ed] said defendant to strike said complainant.”

Appellant also asserts the alleged manners and means failed to allege an offense because they did not put appellant on notice of what constitutes a “proper lookout” or what “attend to existing road conditions” and “proper evasive action” mean or constitute. The indictment must allege with “reasonable certainty” the acts relied upon to constitute recklessness; this indictment does so. See Stewart v. State, 70 S.W.3d 309, 314 (Tex.App.-Waco 2002, pet. refd) (indictment sufficiently charged recklessness by “failing to keep a proper lookout for other vehicles he was approaching,” “failing to keep his vehicle under proper control,” etc.).

Appellant argues on appeal that the allegations of recklessness are insufficient because some of the allegations are mutually exclusive, namely, the allegations of failure to maintain a single lane of traffic and failure to take evasive action. Objections to defects in an indictment must be raised before trial or they are waived. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp.2004-05); Sanchez v. State, 120 S.W.3d 359, 366 (Tex.Crim.App.2003). Appellant did not raise this objection until after his conviction; accordingly, the objection is waived.

We hold the trial court did not err by denying appellant’s motions to quash .the indictments. We overrule appellant’s seventh and eighth points of error.

SUFFICIENCY OF THE EVIDENCE

In his fifth and sixth points of error, appellant contends the evidence is factually insufficient to support his convictions. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). To make this determination, we consider whether the evidence of appellant’s guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, that is, the verdict is clearly wrong and manifestly unjust, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004). Our evaluation of the sufficiency of the evidence must not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

Appellant argues the evidence is factually insufficient because his version of events is the more logical. We disagree. Appellant’s version of events is that he was not criminally negligent because he was unaware of the accident scene until he was 60 to 70 feet away from it, did not have time to stop, and was taking evasive measures when he unexpectedly ran into the three men, killing two of them. Appellant’s asserted lack of awareness of the accident scene was that despite the fact he had excellent vision, he could not see, at 2:00 a.m., the brake lights from the cars stopped ahead in all five lanes of the freeway or the burning Mitsubishi that all the other drivers on the road saw. Appellant’s theory also depends on Crall’s SUV blocking his vision so that he could not see the accident scene until she swerved just in front of the accident scene. However, appellant’s version of events is contrary to his own testimony that his vision was not blocked by Crall’s SUV as he crested the Walnut Hill overpass, which was the point from which the other drivers observed the traffic problems and burning car 2479 feet ahead. The testimony of the other witnesses showed appellant should have had an unobstructed view of the accident scene from the Walnut Hill overpass, yet he could not explain why he did not observe the stopped traffic and burning car. If appellant had observed the stopped traffic from the Walnut Hill overpass, the evidence shows the BMW’s brakes could have stopped the BMW from a speed in excess of 100 m.p.h. well before he reached the accident scene.

Appellant also asserts his lack of criminal negligence is shown by his application of his brakes. A BMW technician examined appellant’s vehicle and determined the brakes were applied hard enough to engage the ABS system at about 50 m.p.h. five miles before the car came to rest. However, appellant testified he drove the car home after the accident and that his house was “ten to thirteen, fourteen miles” from the accident location. Thus, the hard application of brakes about which the BMW technician testified had to have oc-curi’ed five to nine miles past the accident scene.

After viewing all the evidence in a neutral light, we conclude the jurors could rationally find beyond a reasonable doubt from the evidence that appellant, by criminal negligence, caused the complainants’ deaths while operating a motor vehicle and “did drive said motor vehicle ... at a speed greater than was reasonable and prudent under the circumstances then existing, and did fail to control the speed of said motor vehicle, ... and did fail to maintain proper lookout, and did fail to attend to proper road conditions .... ” Reaching any other conclusion would require us to substantially intrude upon the jury’s role as the sole judge of the weight and credibility of the evidence, which we must not do. See Johnson, 23 S.W.3d at 7. We overrule appellant’s fifth and sixth points of error.

JURY CHARGE

In his third point of error, appellant contends the trial court erred by not submitting appellant’s requested jury instruction on the justification defense of necessity. See TEX. PEN. CODE ANN. § 9.22 (Vernon 2003). The trial court charged the jury on the offenses of manslaughter and criminally negligent homicide. Both manslaughter, with its reckless mental state, and criminally negligent homicide, with its criminal negligence mental state, have as one of their elements the requirement that the risk that the result will occur be “unjustifiable.” Id. § 6.03(c), (d). The trial court does not abuse its discretion when it refuses to submit an instruction on a defensive issue that merely denies the existence of an essential element of the State’s case. Chavers v. State, 991 S.W.2d 457, 460 (Tex.App.-Houston [1st Dist.] 1999, pet. refd). Therefore, “[b]y definition, when unjustifiable is one of the elements of a crime, a defendant cannot raise a justification defense.” Id. at 459-60. Because “unjustifiable” was an element of both submitted offenses, the trial court did not err in not submitting appellant’s requested justification defense of necessity. We overrule appellant’s third point of error.

In his fourth point of error, appellant contends the trial court erred by denying his requested instruction on the defense of mistake of fact. See TEX. PEN. CODE ANN. § 8.02 (Vernon 2003). When the trial court presented the charge to the parties for their objections, appellant presented extensive argument on why the necessity defense should be presented. On the mistake of fact defense, appellant’s objection in the record consisted of the following: “I would also request a mistake of fact charge .... ” Appellant did not, however, specify which fact was mistaken. The trial court denied appellant’s request. When requesting an instruction on the defense of mistake of fact, the party must specify the fact alleged to have been mistaken. Williams v. State, 930 S.W.2d 898, 903 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); Hefner v. State, 735 S.W.2d 608, 619-20 (Tex.App.-Dallas 1987, pet. refd), abrogated on other grounds by Campbell v. State, 5 S.W.3d 693 (Tex.Crim.App.1999). We conclude appellant’s request, which fails to specify the allegedly mistaken fact, is too general to preserve error. See Williams, 930 S.W.2d at 903. Absent a proper request, the trial court ■does not err by failing to instruct the jury on the defense of mistake of fact. Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998). We overrule appellant’s fourth point of error.

COMMUNITY SUPERVISION

In his first point of error, appellant contends the trial court erred at the punishment phase by not instructing the jurors that they could recommend appellant be placed on community supervision. The imposition of community supervision is governed by article 42.12 of the code of criminal procedure. See generally TEX. CODE CRIM. PROC. ANN. art. 42.12 (Vernon Supp.2004-05).

Criminally negligent homicide is a state jail felony. TEX. PEN. CODE ANN. § 19.05(b) (Vernon 2003). Under section 12.35(a) of the penal code, a state jail felony is punished by confinement in a state jail for 180 days to two years and a fine of up to $10,000. Id. § 12.35(a). When it is shown that a deadly weapon was used or exhibited in the commission of or flight from the offense, then the state jail felony is punished as a third degree felony. Id. § 12.35(c)(1). Third degree felonies are punished by two to ten years’ imprisonment and a fine of up to $10,000. Id. § 12.34. In this case, at the guilt phase, the jury found appellant used or exhibited a deadly weapon; thus, under section 12.35(c)(1), the punishment range for this offense was that of a third degree felony.

Sections 3 and 4 of article 42.12 contain the general provisions for when the judge may order and the jury may recommend community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3, 4. •Both of these sections except from their provisions defendants sentenced under section 12.35 of the penal code. Id. art. 42.12, §§ 3(e)(2), 4(d)(2). In this case, appellant was sentenced under penal code section 12.35(c); thus, he cannot rely on the general provisions for community supervision.

The right to community supervision for defendants convicted of state jail felonies is governed by section 15 of article 42.12. Section 15(a) requires the trial court to place a defendant on community supervision for certain offenses punishable under penal code section 12.35(a), and it permits the trial court to place a defendant on community supervision for all other offenses punishable under section 12.35(a). Id. § 15(a)(1), (2). Article 42.12 contains no provision allowing the jury to recommend community supervision for state jail felonies. See Hookie v. State, 136 S.W.3d 671, 678-79 (Tex.App.-Texarkana 2004, no pet.). Nor does it allow the judge to order community supervision for offenses, like appellant’s, punishable under penal code section 12.35(c). Accordingly, we conclude the code of criminal procedure does not provide community supervision for a defendant convicted of a state jail felony punishable under section 12.35(c).

Appellant argues this interpretation is incorrect because, under article 12.35(c), his conviction was for a third degree felony. We disagree. Appellant was “adjudged guilty” (i.e., convicted) of a state jail felony. See TEX. PEN. CODE ANN. § 12.35(c)(1). That the range of punishment for this state jail felony is that of a third degree felony does not change the fact appellant was convicted of a state jail felony.

Appellant also argues this interpretation is contrary to the wording of article 42.12, section 4(d)(2), which excludes from jury-recommended community supervision defendants “sentenced to serve a term of confinement” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(2) (emphasis added). Under the penal code, punishment for first, second, and third degree felonies is by “imprisonment in the institutional division,” and punishment for state jail felonies and class A and B misdemeanors is by “confinement in jail” or “confinement in a state jail.” Compare TEX. PEN. CODE ANN. §§ 12.32-.34 (Vernon 2003) with id. §§ 12.21, .22, .35. Appellant asserts he was sentenced under the penal code to serve a term of imprisonment, not confinement. See id. § 12.34(a) (punishment for third degree felony is “imprisonment in the institutional division” (emphasis added)). Thus, appellant argues, section 4(d)(2) does not exclude him from jury-recommended community supervision. However, even if appellant were correct that the terms “imprisonment” and “confinement” as used in section 4 of article 42.12 should be given their restricted meanings under chapter 12 of the penal code, he would not be eligible for jury-recommended community supervision. Article 42.12, section 4(a) authorizes “[a] jury that imposes confinement as punishment for an offense” to recommend community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(a) (emphasis added). Section 4 contains no similar provision authorizing a jury to recommend community supervision when it imposes “imprisonment” as punishment. Because, under appellant’s interpretation of the words “confinement” and “imprisonment,” he was “punished by imprisonment,” not confinement, he would not be eligible for jury-recommended community supervision.

Appellant also argues the trial court’s interpretation of article 42.12 should be rejected because it leads to an absurd result in that a jury may recommend community supervision for murder and manslaughter but not criminally negligent homicide. Likewise, under this interpretation, the trial court may order community supervision for a person convicted of criminally negligent homicide but not criminally negligent homicide with a deadly weapon. We disagree that this interpretation is absurd. At least one other court of appeals has held that not permitting juries to recommend community supervision for state jail felonies is not absurd and has a rational basis. See Hookie, 136 S.W.3d at 679. Also, the legislature’s singling out section 12.35(c) offenses from eligibility for post-conviction community supervision is just as rational as the legislature’s excluding driving-while-intoxicated offenses from deferred adjudication, a provision applicable to almost every other offense under certain conditions, including criminally negligent homicide. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5.

We conclude the trial court did not err in refusing to charge the jury that it could recommend appellant be placed on community supervision. We overrule appellant’s first point of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second point of error, appellant contends he did not receive effective assistance of counsel. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel’s representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986).

We are given further aid in judging the first prong of the Strickland-Hemandez test:

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range,of professionally competent assistance. ■

Strickland, 466 U.S. at 690, 104 S.Ct. 2052; Hernandez, 726 S.W.2d at 55. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Judicial scrutiny of counsel’s performance must be highly deferential; a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Thus, an appellant faces the onerous burden of overcoming a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052; see also Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003).

At the hearing on the motion for new trial, appellant’s trial counsel testified he prepared for trial and conducted the guilt phase of the trial based on his belief that appellant was eligible for community supervision, both for the charged offense of manslaughter as well as for the lesser included offense of criminally negligent homicide. Counsel testified that his strategic decisions, including jury selection, evidence presentation, and objections to the charge, were based on his misunderstanding of appellant’s eligibility for community supervision. Counsel testified his decisions on these matters might have been different had he known community supervision was not available for criminally negligent homicide with a deadly weapon and if his client had indicated they should take a different tack. Later in his testimony, counsel testified, “in hindsight, that not being the law, we would have done things differently.”

Although counsel testified he might have or would have proceeded differently, he did not testify, and the record does not show, that the manner in which he represented appellant was “outside the wide range of professionally competent assistance.” Furthermore, counsel’s testimony that, in hindsight, he might have, or would have, proceeded differently had he been aware of appellant’s community supervision eligibility and if appellant had indicated they should take a different tack is too speculative to conclude counsel’s actual acts and omissions were outside the wide range of professionally competent assistance. Accordingly, we conclude appellant has failed to meet the first prong of the Strickland test.

Even if counsel’s actions were unreasonable, the record does not show a reasonable probability that the outcome would have been different. Counsel testified he would have informed the prospective jurors that a person convicted of manslaughter is eligible for community supervision, yet a person convicted of criminally negligent homicide with a deadly weapon is not eligible for community supervision, and he would have challenged for cause those prospective jurors who indicated they were unable to follow that law. His doing so could have made no difference to the outcome because the jurors in this case were unaware of the difference in community supervision eligibility between the two offenses when they determined appellant’s guilt, so they had no bias against the law and still found appellant guilty of criminally negligent homicide. Counsel also testified he might have exercised his peremptory challenges differently based on the prospective jurors’ answers to questions about the differences in eligibility for community supervision. However, counsel’s testimony that he might have made different decisions based on answers never uttered to questions not posed does not meet the high level of prejudice necessary to establish ineffective assistance. Counsel also testified he would have presented different evidence about reckless versus negligent conduct; however, the jurors were instructed in the charge on the legal definitions of reckless and negligent conduct, and nothing shows a reasonable probability that they would have determined this issue differently.

Appellant appeal’s to assert in his briefing that, had he been aware he was not eligible for community supervision if convicted of criminally negligent homicide with a deadly weapon, then he would not have requested a jury instruction on criminally negligent homicide and he would have objected to its submission. This assertion is not firmly founded in the record. Counsel testified that whether to oppose submission of criminally negligent homicide was something he would have considered had he been aware of appellant’s ineligibility for community supervision for criminally negligent homicide with a deadly weapon, but counsel did not testify that he would have, in fact, opposed submission of the lesser included offense. Moreover, the State could have requested submission of criminally negligent homicide, or the trial court could have submitted the offense sua sponte, and because some evidence shows appellant was guilty only of criminally negligent homicide, it would not have been error for the trial court to submit the instruction, even over appellant’s objection. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.199B). We conclude appellant has not shown a reasonable probability that criminally negligent homicide would not have been submitted to the jury had counsel been aware that appellant would not be eligible for community supervision if convicted of criminally negligent homicide with a deadly weapon.

Appellant also states in his brief, “The jury would have been composed differently and would have made a different decision regarding its guilty verdict had counsel been in the position to question the venire about the law putatively applicable to criminally negligent homicide -with a deadly weapon.” This statement is speculative and is not firmly founded in the record.

Appellant relies on a series of cases where the trial court or trial counsel wrongly informed the defendant that the trial court could order community supervision when only the jury could recommend community supervision. See Ex parte Canedo, 818 S.W.2d 814, 815 (Tex.Crim.App.1991); Sterry v. State, 959 S.W.2d 249, 257-58 (Tex.App.-Dallas 1997, no pet.); Medeiros v. State, 733 S.W.2d 605, 607 (Tex.App.-San Antonio 1987, no pet.). In each of these cases, the incorrect information caused the defendants to waive their right to have the jury assess punishment. Thus, while otherwise eligible for community supervision recommended by a jury, the defendants’ choice to have the judge set punishment eliminated community supervision as a punishment option. In this case, appellant could not receive community supervision for criminally negligent homicide with a deadly weapon from either the judge or jury. Accordingly, the cases cited by appellant are distinguishable.

Finally, the record does not show a reasonable probability that the jury would have recommended community supervision even if appellant had been convicted of manslaughter. Had the jury believed leniency, such as community supervision, was appropriate, it would have assessed appellant’s punishment at or near the minimum of two years’ imprisonment; instead, the jury assessed seven-and-a-half years’ imprisonment.

We conclude the record does not show a reasonable probability that appellant would have been convicted of manslaughter instead of criminally negligent homicide with a deadly weapon had counsel been aware appellant was not eligible for community supervision if convicted of criminally negligent homicide with a deadly weapon. Accordingly, appellant has not met the prejudice prong .of Strickland. We overrule appellant’s second point of error.

We affirm the trial court’s judgments.

      . The penal code defines criminal negligence as follows:
      A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
      TEX. PEN. CODE ANN. § 6.03(d) (Vernon 2003).

      . Whether article 42.12, section 4(a) limits a jury’s authority to recommend community supervision to offenses punished as misdemeanors or state jail felonies is not before us, and we make no holding on that issue.
      Throughout much of article 42.12, the legislature appears to have carefully distinguished between “confinement” and “imprisonment.” See, e.g., TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 2(B), 6(a), 7(a). Section 4, however, is an exception. As noted above, strict application in section 4 of the term "confinement” to punishment in jail or a state jail would prohibit jury-recommended community supervision for first, second, and third degree felonies. That cannot have been the intent of the legislature because, if it were, section 4(d)(l)’s exclusion from jury-recommended community supervision for defendants "sentenced to a term of imprisonment that exceeds 10 years" would be rendered meaningless. See id. art. 42.12, § 4(d)(1).


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    Scott Davis ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-089 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Dec. 1, 2004.
    Decided Jan. 26, 2005.

      Doug Murphy, Trichter, Murphy & Overstreet, PC, Houston, for appellant.
    Michael A. McDougal, Dist. Atty., Monica Strickland, Gail Kikawa McConnell, . Asst. Dist. Atty’s, Conroe, for state.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted Scott Davis Adams of driving while intoxicated. The trial court sentenced him to 180 days in the county jail, suspended the imposition of sentence, and placed him on probation for one year. The trial court also required Adams to do forty hours of community service and fined him $1,500. We affirm.

Officer Bodden testified for the State. In the early morning hours, Bodden’s radar clocked Adams’ vehicle speed at 49 m.p.h. in a 30 m.p.h. zone. Bodden stopped the car for speeding. Inside the vehicle were Adams and two passengers. Bodden detected a “strong odor of alcoholic beverage coming from inside the vehicle.” He asked Adams, the driver, to step out of the car. Bodden testified the only sign of intoxication at that point was the odor of alcohol on Adams’ breath. When Bodden directed Adams to step out of the car and walk in front of the police car, Adams had no difficulty in following those instructions; Adams did not stagger or stumble.

Officer Bodden administered the following field sobriety tests recorded on videotape at the scene: horizontal gaze nystag-mus test (HGN), nine-step walk-and-turn test, and the one-leg stand test. Polite and cooperative, Adams did everything Bodden asked of him. Adams exhibited six clues, the maximum number possible, on the HGN test. See Howard v. State, 137 S.W.3d 282, 284 (Tex.App.-Fort Worth 2004, no pet.). Out of eight possible clues on the walk-and-turn test, Adams exhibited four. Bodden testified Adams was “unable to maintain [his] balance during the instruction phase,” stepped off the line, missed heel to toe, and performed an improper turn. Of the four possible clues on the one-leg stand test, Adams exhibited only one. He swayed while trying to balance himself. Officer Bodden also administered the portable breath test (PBT) which indicated the presence of alcohol. When asked what impairment of mental or physical faculties the defendant showed at the stop, Bodden pointed to Adams’ “inability to observe the speed limits,” the clues observed during the field sobriety tests, and the alcohol odor on his breath. Based on the combination of the field tests and his observations, Bodden arrested Adams for DWI and took him to the police station to conduct the Intoxilyzer 5000 breath test. From the time of the stop to the time of the Intoxilyzer 5000 test, Adams did not consume any alcohol. The results of the Intoxilyzer 5000 test were readings of .09 and .094. The officer agreed it was possible for a person to fail the breath test at the later time (the Intox-ilyzer 5000 test), but pass a breath test at the time of the stop.

In issue one Adams argues the evidence was factually insufficient to support his conviction. The Court of Criminal Appeals has recently restated the standard for reviewing factual sufficiency as follows:

There is only one question to be answered in a factual-sufficiency review: Considering all the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale,1 the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004) (footnote omitted). Adams argues the evidence that he was intoxicated at the “time of driving” was weak and outweighed by contrary evidence. First, he says the lack of extrapolation evidence from the .09 and .094 In-toxilyzer test back to the time of driving renders the evidence factually insufficient. Next, he contends the field sobriety tests were not administered correctly and do not show that Adams’ mental or physical faculties were impaired by reason of introduction of alcohol into the body.

The charge tracked the two definitions of intoxication contained in Tex. Pen.Code Ann. § 49.01(2) (Vernon 2003). Those definitions set forth alternate means for the State to prove intoxication: by proving loss of normal use of physical or mental faculties by reason of the introduction of alcohol into the body; and/or by proving an alcohol concentration of .08 or more. See id.; see also Bagheri v. State, 119 S.W.3d 755, 762 (Tex.Crim.App.2003). Adams says the State did not prove either means.

The jury heard Bodden testify that Adams was speeding, had alcohol on his breath, exhibited all six clues on the HGN test, four clues out of eight on the walk- and-turn test, and one clue on the one-leg stand test. The Intoxilyzer 5000 test, administered fifty-four minutes after the stop, showed intoxication levels of .09 and .094. The State offered no extrapolation evidence to show the alcohol level at the time of stop was .08 or above. Julie Evans, the State’s expert, testified it was “possible that [Adams’ blood alcohol level was below] .08 at the time of driving.” Bodden acknowledged Adams had no difficulty in following instructions or in retrieving his driver’s license and insurance card, and he did not stagger or stumble. The jury also viewed a videotape of Adams at the stop that night. The members of the jury were free to evaluate and weigh the evidence. See Zuniga, 144 S.W.3d at 482 (“Because the jury is the judge of the facts and the appellate court’s role is to review criminal convictions, the appellate court is not allowed to ‘find’ facts or substitute its judgment for that of the jury.”). Viewing the foregoing evidence in a neutral light, favoring neither party and giving due deference to the fact finder’s determinations, we conclude there is factually sufficient evidence that Adams was intoxicated at the time he was observed driving in a public place. See Stewart v. State, 129 S.W.3d 93, 96-97 (Tex.Crim.App.2004) (Court of Criminal Appeals held that breath test results, along with the officer’s testimony and the videotape of appellant, were probative evidence of the appellant’s intoxication.). Issue one is overruled.

In issue two, Adams argues the trial court erred in failing to grant a mistrial when Officer Bodden testified the portable breath test (PBT) showed Adams “[had an] alcohol concentration of over .08.” Sustaining Adams’ objection, the trial judge ruled the PBT result was admissible only to show the presence or absence of alcohol, but not to show the actual quantitative amount of alcohol. The following exchange then occurred in the presence of the jury:

Q. [Prosecutor]: After you [Officer Bodden] had [Adams] perform the one-leg stand, did you have [him] perform any other tests?
A. [Officer Bodden]: Yes, I gave him a preliminary breath test for his benefit.
[Defense Counsel]: I’d reurge the same objection.
[The Court]: Objection is overruled.
Q. What did the preliminary breath test show?
A. That he did have alcohol concentration of over .08.
[Defense Counsel]: Objection, that’s a violation of the motion in limine.

The prosecutor agreed with both the trial judge and defense counsel that Bodden should not have mentioned the quantitative amount. Officer Bodden testified he thought he “could say it was over .08 but not the numeric amount.” He indicated he was unaware that all he could say was that the PBT showed the presence of alcohol. The trial court instructed the jury to disregard Bodden’s answer, but denied defendant’s request for a mistrial.

“A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). We review the denial of a motion for mistrial under an abuse of discretion standard. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). To determine whether a given error necessitates a mistrial, the reviewing court examines the particular facts of the case. Id. In most instances, the trial court’s instruction to disregard cures any harm. See id. Adams argues the trial judge’s instruction in this case was insufficient to cure the harm from the inadmissible evidence. We quote the trial court’s instruction to the jury:

Members of the jury, the law is that this portable breath test that the officers carry in their car, any results of the quantitative amount of alcohol are not admissible. The qualitative amount, that is, whether or not the presence or absence of alcohol is admissible but not what percentage it is that test showed, if any. It’s simply not admissible and the officer maybe wasn’t aware of that. You’re instructed to disregard any evidence of the qualitative [sic] amount or amount of concentration that the portable breath test showed.

When the trial court instructs a jury to disregard, we presume the jury follows the tidal court’s instructions. See Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim.App.1988). Only for “highly prejudicial and incurable errors” is a mistrial appropriate. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert. denied, Simpson v. Texas, — U.S. -, 124 S.Ct. 2837, 159 L.Ed.2d, 270, 72 U.S.L.W. 3749 (2004).

The Waco court has gauged the effectiveness of an instruction to disregard by using the following factors: “the nature of the [improper comment]; the persistence of the prosecutor; the flagraney of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence.” Roberson v. State, 100 S.W.3d 36, 41 (Tex.App.-Waco 2002, pet. ref'd). Applying those factors, we find the trial court’s instruction to disregard was effective. Officer Bod-den’s remark appears to have been inadvertent. Bodden stated he was unaware he could not say the test result was above the .08 figure. The prosecutor acknowledged the answer should not have been given in the manner it was, and did not mention the quantitative result of the PBT again. The trial court’s instruction to disregard the evidence was pointed, clear, and definitive: the trial judge expressly stated the evidence was inadmissible and the jury was not to consider it. There was other evidence supporting the “intoxication” element, including the officer’s testimony concerning the alcohol odor, the field sobriety tests, the video, and the In-toxilyzer 5000 test. Finally, given the statutory punishment for a class B DWI misdemeanor, the sentence was not severe. Although Texas law provides for a minimum term of seventy-two hours confinement, the trial court, pursuant to statutory authority, suspended the imposition of the sentence and placed Adams on community supervision. See Tex. Pen.Code Ann. § 49 .04(b) (Vernon 2003); Tex.Code Crim. Proc. Ann. art. 42.12, § 13 (Vernon Supp. 2004-2005).

We find the State’s question, and the officer’s response that the reading was over .08 were not so inflammatory that they could not be cured by an instruction to disregard. In light of the facts surrounding the field sobriety tests and the definitiveness of the trial court’s instruction, we hold the trial judge’s instruction to disregard cured any error from the improper evidence.

Appellant contends the State engaged in prosecutorial misconduct when the prosecutor elicited from Officer Bod-den the PBT result. Officer Bodden was present on the witness stand at the time appellant objected to the admission of the PBT result and at the time the trial judge explained his ruling about the inadmissibility of the quantitative result on the PBT. The' prosecutor may reasonably have assumed Bodden understood the trial judge’s instructions. The record does not support appellant’s claim of prosecutorial misconduct. Issue two is overruled.

In issue three, Adams argues the trial court erred in not granting a new trial because the jury considered evidence that had previously been suppressed. According to Adams, during their deliberations the jurors turned up the volume to hear Officer Bodden state on the videotape that Adams’ PBT test was over the legal limit at the time of the stop. Adams says this was evidence the State was to remove from the videotape, but did not. Defense counsel further asserts that a juror told him and the prosecutor “the three ‘not guilty’ jurors changed their votes to guilty” right after hearing the videotape. The Rules of Appellate Procedure provide that the trial court should grant a new trial if, “after retiring to deliberate, the jury has received other evidence.... ” Tex. R.App. P. 21.3(f).

The trial court granted Adams a hearing on his motion for new trial. The motion did not include an affidavit and was not verified. In this context, the order denying a motion for new trial unsupported by any evidence cannot be disturbed on appeal. See King v. State, 29 S.W.3d 556, 568-69 (Tex.Crim.App.2000). With no supporting evidence from any juror, the trial court did not abuse its discretion in denying the motion for new trial. Issue tree is overruled.

In issue four, Adams argues the trial court “erred in permitting evidence of the results of the Intoxilyzer without extrapolation when the evidence was more prejudicial than probative], in violation of Rule 403 of the Texas Rules of Evidence.” We review the admission or exclusion of evidence under an abuse of discretion standard. See Sells v. State, 121 S.W.3d 748, 766 (Tex.Crim.App.2003), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157 L.Ed.2d 378 (2003). The State argues the issue was not preserved. We disagree. Appellant objected to Officer Bodden’s initial reference to the .09 and .094 results, and the trial court indicated the issue would be dealt with later. During the voir dire of the State’s expert intoxilyzer witness, appellant again objected to the admissibility of the breath test results and lodged a Rule 408 objection, along with other objections. The trial court’s ruling on the admissibility of the intoxilyzer test result encompassed appellant’s relevancy and Rule 403 objections.

Under Rule 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Tex.R. Evid. 403. Rule 403 presumes the “admissibility of all relevant evidence and authorizes a trial court to exclude [the] evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.’ ” Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999). The Court of Criminal Appeals has held that an intoxilyzer test result is relevant under either definition of intoxication, even without extrapolation evidence, to show intoxication at the time the accused drove. Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004) (“[Bjreath test results tended to make it more probable that [defendant] was intoxicated at the time she drove under either definition of intoxication because they provided evidence that she had consumed alcohol.”). The intoxi-lyzer is probative on the element of intoxication. See id.; see also State v. Mechler, 123 S.W.3d 449, 455 (Tex.App.-Houston [14th Dist.] 2003, pet. granted).

In determining whether the prejudice of admitting the evidence substantially outweighs its probative value, the relevant criteria include the following: (1) how compellingly the evidence makes a fact of consequence more or less probable; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the proponents’s need for the evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. See Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003); Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App.1991) (op. on reh’g). But is the evidence here—the breath test result without extrapolation evidence—substantially more prejudicial than probative? The record in this case demonstrates it is not.

The first factor asks how compellingly the evidence serves to make a fact of consequence more or less probable. The fact of consequence is whether Adams was intoxicated while operating the vehicle. The evidence of the breath test served to make that fact more probable. See Martinez v. State, 155 S.W.3d 491, 498 (Tex.App.-San Antonio 2004, no pet. h.) (citing Stewart, 129 S.W.3d at 96). Second, the intoxilyzer test results would not have impressed the jury in some irrational but indelible way. The jury was instructed to convict Adams if, while he was intoxicated, he operated a motor vehicle; the indictment had similar language. The jury was not instructed to find Adams guilty if he was intoxicated when he took the Intoxi-lyzer breath test. Further, the evidence of the Intoxilyzer test result applies to an allegation in the indictment. When evidence specifically pertains to an allegation in the indictment, the evidence is not unfairly prejudicial under a Rule 403 balancing test. See Manning, 114 S.W.3d at 928. In addition, the jury heard testimony on the limitations of the Intoxilyzer 5000 test results. Third, because the breath test results were proof of the charged offense, the amount of time the State spent developing it-is inconsequential since the jury would not be distracted from the charged offense. Id. Fourth, although the State had other evidence to prove Adams’ intoxication, that evidence is somewhat weak. The State needed the Intoxilyzer 5000 test result. The factors all weigh in favor of probativeness. Balancing the factors, we find there is not a clear disparity between the degree of prejudice of Adams’ Intoxi-lyzer results and their probative value. The trial court did not abuse its discretion in admitting the evidence. Issue four is overruled. :

In issue five, appellant argues the trial court erred in increasing Adams’ sentence when Adams would not agree to waive his right to appeal. Adams filed an election to have the trial court determine punishment. Upon inquiry, the trial judge was told there was an agreement on punishment. The trial judge then stated he normally does not accept an agreement on punishment unless the agreement includes a waiver of appeal. Defense counsel informed the trial judge Adams did not want to waive his right to appeal. The trial judge did not accept the punishment agreement and proceeded to hold a hearing on punishment. The trial court assessed the same punishment against Adams as that in the proposed agreement, with the exception that the fine was increased from $500 to $1,500.

Appellant does not direct us to any evidence in the record showing the trial judge increased the fine because Adams refused to waive his appeal; and we have found none. Adams testified at the punishment hearing. He explained that on the night of the offense he had four drinks, the last at 2:00 a.m. He also testified he was a cable installer, had been married for three years, had no children, and did not support anyone other than his wife. Adams indicated he had never before been arrested or convicted of any offense. The trial court may have decided to impress upon defendant the seriousness of the offense and may have concluded that because defendant was employed, he Could afford a $1,500 fine. Without evidence in the record to support appellant’s claim, we overrule issue five.

The conviction is affirmed.

AFFIRMED.

      . Because the trial court was not presented with any testimony from jurors, we need not decide whether juror testimony concerning consideration of excluded evidence is a type of "outside influence” under Texas Rules of Evidence 606(b).


author: DAVID GAULTNEY, Justice.

text:
    In re RLS LEGAL SOLUTIONS, L.L.C. and Yandell Rogers III.
    No. 09-04-526 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Dec. 21, 2004.
    Decided Jan. 27, 2005.

      Victor N. Corpuz, Kristin L. Bauer, Jackson Lewis, LLP, Dallas, for relators.
    Glen W. Morgan, Mary F. Bradford, Reaud, Morgan & Quinn, LLP, Beaumont, for real party in interest.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Amy Maida sued RLS Legal Solutions, L.L.C. and Yandell Rogers III (1) for various claims related to her employment. The employment agreement of December 7, 2001, has an arbitration provision, as follows:

15. Arbitration of Disputes. Any legal or equitable dispute or controversy arising under, out of, or in connection with or in relation to this Agreement; ' or arising out of, or related to the employment of Employee, the terms and conditions of employment, or the termination of Employee by the Company (other than worker’s compensation claims), shall be resolved exclusively by binding arbitration.

RLS is before this Court on its second petition for writ of mandamus. In the first mandamus proceeding, we ordered the trial court to hold an evidentiary hearing on disputed material facts regarding the arbitration agreement. See Rogers v. Maida, 126 S.W.3d 643, 646 (Tex.App.-Beaumont 2004, orig. proceeding). This mandamus petition attacks an order denying RLS’s motion to compel arbitration. The parties agreed the Federal Arbitration Act applies. Id. at 644.

A writ of mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy at law. See In re FirstMerit Bank, N.A, 52 S.W.3d 749, 753 (Tex.2001). The trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). When the trial court’s decision rests on resolution of fact issues, the party opposing the trial court’s decision must establish that the court could reasonably have reached only one decision. Id. at 839-40. The trial court has no discretion in determining what the law is or applying the law to the facts. Id. at 840. A party erroneously denied the right to arbitrate under the Federal Arbitration Act has no adequate legal remedy and may seek reversal of the order by filing a petition for writ of mandamus. See In re FirstMerit Bank, N.A., 52 S.W.3d at 753.

There is a strong presumption favoring arbitration, but the presumption arises only if a valid arbitration agreement exists. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); In re Oakwood Mobile Homes, Inc., 987 S.W.2d at 573. Maida says there was no enforceable agreement to arbitrate because RLS procured the arbitration agreement by economic duress. The trial court heard evidence and denied the motion to compel arbitration. In its first issue, RLS argues the trial court abused its discretion by not submitting Maida’s allegation of economic duress to arbitration. In its second issue, RLS says Maida did not meet her burden of proof on the elements of economic duress. We consider these two issues together.

Economic duress occurs when one party takes unjust advantage of the other party’s economic necessity or distress to coerce the other party into making an agreement. See King v. Bishop, 879 S.W.2d 222, 224 (Tex.App.-Houston [14th Dist.] 1994, no writ). It is a defense to the enforcement of the contract. Id. A party claiming duress must show a threat by the other party to do something which the other party had no legal right to do, the threat destroyed the free agency of the person to whom it was directed, the restraint caused by the threat was imminent, and the person against whom the threat was directed had no means of protection. See Sudan v. Sudan, 145 S.W.3d 280, 286 (Tex.App.-Houston [14th Dist.] 2004, no pet. h.).

RLS cites In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001), and Shearson Lehman Bros., Inc. v. Kilgore, 871 S.W.2d 925, 927-28 (Tex.App.-Corpus Christi 1994, orig. proceeding) for the proposition that Maida’s allegations of economic duress relate to the employment contract as a whole, rather than to the arbitration provision, and the entire matter therefore must be arbitrated. In FirstMerit Bank, the purchasers of a mobile home signed a retail installment financing agreement. See FirstMerit Bank, 52 S.W.3d at 752. The agreement contained an “Arbitration Addendum,” which required arbitration of any disputes. Id. at 752-53. When the mobile home was delivered, the purchasers attempted to revoke their acceptance. They claimed the home was defective and promised repairs were not made. Id. at 753. In determining the purchasers’ defenses did not defeat arbitration, the Supreme Court held the defenses “must specifically relate to the Arbitration Addendum itself, not the contract as a whole, if they are to defeat arbitration.” Id. at 756. The Supreme Court held:

Once the trial court concludes that the arbitration agreement encompasses the claims, and that the party opposing arbitration has failed to prove its defenses, the trial court has no discretion but to compel arbitration and stay its own proceedings. (footnotes omitted).

Id. at 753-54. The initial question here is whether Maida’s economic duress defense specifically relates to the arbitration provision. See generally In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002) (“courts may consider both procedural and substantive unconscionability of an arbitration clause in evaluating the validity of an arbitration provision.”); see also Kilgore, 871 S.W.2d at 928 (“whether there is a valid agreement to arbitrate is an initial question for the trial court and not the arbitrators”).

Maida testified in support of her assertion the arbitration agreement was wrongfully procured by economic duress. She testified she objected to signing the agreement because of the arbitration clause and for other reasons. When asked whether she liked the arbitration clause, Maida stated:

I did not. In fact, I spoke with several of my attorney friends about the arbitration clause and the non-compete clauses. The arbitration clause was going to allow me not to be able to be in a position that I needed to be in now, and that is, to have someone represent me to help me where I feel like the company did me wrong, and that is, not pay me correctly, not pay me at all, and allow me to be in a position to have to quit so that I could not be making the kind of money that I had once made[.]

Maida also testified that she did not receive her regularly scheduled pay on Friday, November 16, 2001, for work already performed because she did not initially sign the agreement. Maida testified that she was told she would not be paid until she signed. In her affidavit, Maida stated as follows:

After I refused to agree to this arbitration clause, I was told that my payroll checks would not be direct deposited into my account until I signed the agreement and that I would not be paid until I signed the agreement. I had received my paychecks by direct deposit for three (3) years, but was told “that a phone call to cancel my direct deposit would be made to the payroll department unless I signed my agreement.” ... So even though they held checks for money I had already earned and was entitled to, I was told that “I would not receive any more paychecks until I signed my agreement.”

RLS stopped the direct deposit payment of Maida’s salary. She was afraid she would be unable to meet her financial obligations without her regular compensation and benefits. Maida’s affidavit further stated:

I needed my paycheck to meet my financial responsibilities since I am a single family income household provider. I had no way to pay my mortgage, vehicle note, car and homeowner’s insurance as well as any household bills without my compensation checks so by their wrongful conduct they forced me to sign even though I vehemently objected to the arbitration clause.... I was entitled to be paid a salary and commissionable amount based on my personal sales and there was no clause whatsoever that provided that the company could withhold my earned pay for any reason, including forcing me to sign a new agreement. Therefore, the company coerced me into signing the arbitration agreement by wrongfully withholding pay to which I was contractually entitled.

Maida testified that when she finally signed and returned the agreement, she told RLS she was doing so under duress.

Maida testified that after signing and returning the agreement, she was given a manual check on November 19, 2001. Maida said that when she had asked why she had not been paid by direct deposit as usual, she was told her paycheck would be held until she signed the agreement. A co-worker also testified RLS threatened to withhold pay for work already performed until the agreements were signed. The coworker testified that employees were told “If you guys don’t get these things signed, no paychecks on Friday.” The co-worker also stated “I needed my paycheck on Friday, so I signed it right then and there in the office.”

In rebuttal, RLS offered evidence Maida was paid all amounts owed on every regularly scheduled payday in November and December 2001, and Maida received a manual check no later than November 19, 2001. RLS offered evidence Maida was to be paid under her old agreement until the new agreement was signed.

As the fact finder at the evidentiary hearing, the trial court was the exclusive judge of the credibility of witnesses and the weight to be given their testimony. See Harris v. Nelson, 25 S.W.3d 917, 919-20 (Tex.App.-Beaumont 2000, no pet.). The trial court reasonably could have found Maida’s testimony credible and not believed RLS’s explanation. The economic duress defense and Maida’s objection specifically related to the arbitration agreement itself, though Maida also objected to other provisions in the contract. The evidence was sufficient to support a determination that RLS withheld Maida’s compensation for work already performed for the purpose of obtaining her agreement to arbitrate employment disputes, and that the withholding of her compensation for work already performed defeated Maida’s free agency. See generally Windham v. Alexander, Weston & Poehner, P.C., 887 S.W.2d 182, 185 (Tex.App.-Texarkana 1994, writ denied); Simpson, 724 S.W.2d at 109. On this record the trial court reasonably could have found the restraint was imminent and Maida had no means of protection from the threat. These facts differ from those in In re Halliburton because here the withholding of payment was for work already performed, and was not “merely [premising] continued employment on acceptance of new or additional employment terms.” See Halliburton, 80 S.W.3d at 572. Even if she was not entitled to continued employment, payment was due for work already performed, and RLS was not legally entitled to condition that payment on her signing an agreement to arbitrate. The finding implicit in the order is that there was no valid, enforceable agreement to arbitrate because it was procured by economic duress. Relator has not shown that this decision was arbitrary and unreasonable, or that in resolving the fact issues the trial court could not reasonably have reached this decision. See Walker v. Packer, 827 S.W.2d at 839-40. Issues one and two are overruled.

In its third issue, RLS complains Maida’s responses to requests for admissions were filed in bad faith and the trial court abused its discretion by not deeming the requests admitted. Maida contends RLS waived the issue by failing to present it to the trial court. With its reply to Maida’s response, RLS provided a “Second Supplement to Motion to Compel Arbitration,” in which RLS objected to Maida’s responses and sought to have all of the requests deemed admitted. In its motion, RLS argued Maida had not provided any substantive answers, and that she had denied basic, undisputed facts, as well as facts she admitted in her deposition. The issue is preserved for review.

Rule 198.1 of the Texas Rules of Civil Procedure provides that a party may propound written requests for admissions. See Tex.R. Civ. P. 198.1. Rule 198.2(b) states as follows:

(b) Content of response. Unless the responding party states an objection or asserts a privilege, the responding party must specifically admit or deny the request or explain in detail the reasons that the responding party cannot admit or deny the request. A response must fairly meet the substance of the request. The responding party may qualify an answer, or deny a request in part, only when good faith requires.

Tex.R. Civ. P. 198.2(b). If a response is not timely served, the requests are considered admitted without the necessity of a court order. See Tex.R. Civ. P. 198.2(c). The party who has requested admissions may move to determine the sufficiency of an answer or objection. See Tex.R. Civ. P. 215.4(a). “[A]n evasive or incomplete answer may be treated as a failure to answer[,]” and “[i]f the court determines that an answer does not comply with the requirements of Rule 198, it may order either that the matter is admitted or that an amended answer be served.” Id.

In support of its argument, RLS cites Taylor v. Taylor, 747 S.W.2d 940, 945 (Tex.App.-Amarillo 1988, writ denied), in which the court held that, once the trial court found there was no proper response to the requests and that the responses did not satisfy the requirement of the rule, “the court was authorized, if not required, by the rules to deem the matters admitted.” RLS argues “The vast majority of the requests for admission go to similar, uncontroversial and basic information that has been independently established through documentary evidence. For example, Maida denied matters such as her income as reported in her W-2’s for 1999, 2000, and 2001.”

There is no indication the trial court found those responses which relate specifically to the withholding of the relevant check — for example, the responses to requests nos. 21, 25 and 26 — were evasive or otherwise not in compliance with Rule 198. Rather, the trial judge’s denial of the motion to compel arbitration indicates the judge believed the check was not paid timely, and therefore those three responses were properly denied. Even if some of the requests for admissions RLS labels “uncontroversial” should have been deemed admitted by the trial court, the trial court was not required to deem all the requests admitted as a discovery sanction and then compel arbitration. The failure to impose that result as a sanction was not an abuse of discretion. Issue three is overruled. The petition for writ of mandamus is denied.

PETITION FOR WRIT OF MANDAMUS DENIED.

      . We will refer to relators together as RLS.