author: MARILYN ABOUSSIE, Chief Justice.

text:
    ROBERTSON COUNTY, Texas, Appellant, v. Cynthia WYMOLA, Appellee.
    No. 03-99-00328-CV.
    Court of Appeals of Texas, Austin.
    April 13, 2000.

      Bryan F. Russ, Jr., Molly A. Hedrick, Palmos, Russ, McCullough & Russ, L.L.P., Hearne, for appellant.
    Robert B. Luther, Max J. Luther, III, P.C. & Associates, Austin, for appellee.
    Before Chief Justice ABOUSSIE, Justices SMITH and YEAKEL.
   MARILYN ABOUSSIE, Chief Justice.

Appellee Cynthia Wymola sued appellant Robertson County, Texas, under the Texas Whistleblower Act, alleging that she was fired for reporting violations of law by Robertson County Sheriff Lee Scott Hurley. See Act of May 30, 1983, 68th Leg., R.S., ch. 832, 1983 Tex. Gen. Laws 4751 (Tex.Rev.Civ. Stat. Ann. art. 6252-16a, since repealed). The jury returned a verdict in appellee’s favor, awarding damages and attorney’s fees. The County appeals in eight issues. We will affirm the trial court’s judgment.

BACKGROUND

Cynthia Wymola began working for the Robertson County Sheriffs Department as a jailer and dispatcher in 1989. Her responsibilities included acting as jailer for female inmates, fielding incoming phone calls, dispatching officers to disturbances, and operating a control panel that unlocked doors in various parts of the jail facility.

Cynthia Wymola was the victim of domestic violence. Wymola’s ex-husband, David Wymola, began abusing her in 1980. According to Wymola’s testimony, the abuse subsided for a period but resumed in 1985. Wymola testified that David would “pop her” on both ears and push her down. The Wymolas separated during 1992. On January 2, 1993, David came to Wymola’s house in Franklin, Texas, and attempted to rape her. Wymola’s minor son threatened David with a gun, and David left. The child called the Robertson County Sheriffs Department to report the incident. Dispatcher Roger Ann Fulton received the call and dispatched Franklin Police Officer Mike Glass to the scene.

In the phone log, Fulton recorded the address and noted that an officer had been dispatched but did not write down Wymo-la’s name. Some time later, Sheriff Hurley met with Fulton to discuss the incident. Fulton testified about their conversation, saying that Hurley told her, “if it happens again, you’re to write the name down. And then he said, don’t send no more policemen over there. And I said why? And he said just don’t send anymore policemen over there.” Hurley testified that he told Fulton not to dispatch an officer without recording all information but denied having told Fulton not to dispatch police to Wymola’s residence.

On January 8, Hurley called a meeting with Wymola to discuss the incident. Wy-mola testified that Hurley showed her the log and told her “that he did not appreciate an officer or a person working in his department being involved in a domestic disturbance and having to send someone to the residence.” Wymola further testified that Hurley “advised me that I was to never call again, that — to handle my domestic — my domestic affairs myself.” Hurley testified that he spoke with Wymo-la regarding the January 2 incident and that he also told her to keep unauthorized people out of the control room. Hurley read into evidence his note on the January 8 meeting that read, “8 a.m., talked Cindy Wymola about calling her residence that was made at — made by city of Franklin officer R-19 at 1:11 a.m., 1/2/93, and guns being involved. I advised her to keep unauthorized personnel out of the jail (control room).”

On January 17, Wymola had David admitted to a psychiatric treatment facility and called her supervisor, Robertson County Jail Administrator Keith Robinson, to complain about Hurley’s statements. Robinson testified that Wymola told him, “that the sheriff had violated her constitutional rights.” Wymola characterized the report as a complaint that she was being denied “equal protection under the law” and testified that she told Robinson that Hurley “had no right to tell me that I could not call the Sheriffs Department for help.” Wymola testified that based on Robinson’s reaction during the conversation, she felt that she had made a mistake by complaining. Hurley testified that Robinson told him about Wymola’s report before Wymola was terminated.

On January 27, following his release from the treatment facility, David Wymola came to the jail to pick up the family checkbook. Wymola unlocked the door from the front office to the visitation room and tried to pass the checkbook through a mail slot in the door of the locked control room, but the checkbook would not fit. Wymola then unlocked the door from the visitation room to the jail’s interior hallway so that she could pass David the checkbook through a second, larger slot. The record contains no evidence that Wymola unlocked the control room at any point. David took the checkbook and left.

Robertson County Chief Deputy Bobby Mathis was present in the front office when David arrived. After David left, Mathis contacted Sheriff Hurley and wrote a report of Wymola’s actions. Hurley returned to the facility and summoned Wy-mola into his office. Hurley made a note that the decision to fire Wymola occurred “[ajfter reviewing the report that she had broken the security of the jail, by letting her husband into the secured area of the jail, and after disobeying order that I had told her to keep all unauthorized persons out of the jail on January 8, 1993.” Several witnesses testified that Wymola stated that she had been told she was being fired for letting David into the jail. Wymola testified that she called an attorney on January 27 because she thought her report to Robinson had been the basis for her termination.

Wymola filed suit in Travis County, where the case was tried to a jury. The court rendered judgment on the jury’s verdict awarding $36,967 in actual damages, $30,000 in punitive damages, $21,755.49 in pre-judgment interest on the actual damages, and $132,798.78 in attorney’s fees. After the trial court overruled its motion for new trial, Robertson County perfected this appeal.

DISCUSSION

In eight issues, Robertson County contends that the trial court erred in: (1) rendering judgment because Wymola failed to request or obtain a favorable jury verdict on whether her report was made to an “appropriate law enforcement authority”; (2) rendering judgment because the Robertson County Sheriffs Department was not an “appropriate law enforcement authority” as a matter of law; (3) rendering judgment because Wymola did not report a “violation of law” within the ambit of the statute; (4) failing to submit the County’s proffered causation instruction; (5) assessing pre-judgment and post-judgment interest against the County because the County is immune from the imposition of such interest; (6) excluding evidence regarding Wymola’s contingent fee arrangement with her attorney; (7) excluding a witness’s testimony; and (8) awarding mental anguish damages because there was insufficient evidence to support them.

Appropriate Law Enforcement Authority

In its first issue, the County argues that Wymola was required to obtain a jury verdict on whether her report was made to an “appropriate law enforcement authority.” In its second issue, the County urges that neither Keith Robinson nor the Sheriffs Department was an “appropriate authority.” And in its sixth issue, the County complains that Wymola’s report that Hurley violated her constitutional rights fails to satisfy the definition of “violation of statute” under the Whistleblower Act (the Act). We disagree.

The Act in effect at the time Wymola was discharged provided in pertinent part that “[a] state or local government body may not ... terminate the employment of ... a public employee who reports a violation of law to an appropriate law enforcement authority if the report is made in good faith.” Tex.Rev.Civ. Stat. Ann. art. 6252-16a, § 2. Under the pre-codified Act, “appropriate law enforcement authority” was undefined, and this Court determined that the phrase had no special, technical meaning apart from its ordinary meaning. See City of Brenham v. Honerkamp, 950 S.W.2d 760, 768 (Tex.App. — Austin 1997, pet. denied). This Court also held that under the pre-codified Act “appropriate authority” included “at minimum any public authority having the power and duty of inquiring into the lawfulness of the questioned conduct and causing its cessation if the conduct appears to be in violation of the law.” Travis County v. Colunga, 753 S.W.2d 716, 719 (Tex.App. — Austin 1988, writ denied) (emphasis added).

The County contends that neither Robinson nor the Sheriffs Department is an “appropriate law enforcement authority” as a matter of law. To address this issue, we must decide whether “appropriate authority” is to be determined on the basis of the individual or the entity that receives the report. In the Act, “authority” is used in the singular to refer to the government. The dictionary states that such usage indicates an abstract concept (e.g., “the public authority”). See Webster’s Third New International Dictionary 146 (Philip B. Gove ed., 1961). Thus the plain meaning of “authority” indicates that in determining whether a report was made to an “appropriate law enforcement authority,” we should look at the entity that received the report rather than the specific individual to whom the report was made. Although case law does not explicitly hold that “appropriate authority” should be determined on the entity level, there are indications that “authority” is equated with entity. See Castaneda v. Texas Dep’t of Agriculture, 831 S.W.2d 501, 504 (Tex.App. — Corpus Christi 1992, writ denied) (defining authority in terms of “entity”). In response to questioning at oral argument, the County conceded that the proper inquiry is whether the entity that recéived the report was an “appropriate law enforcement authority” and argued that the Sheriffs Department was not an “appropriate authority.” Therefore, we will analyze the County’s arguments to determine whether the Department was an “appropriate authority.”

In its second issue, the County argues that the Sheriffs Department, as a matter of law, is not an “appropriate law enforcement authority.” The County argues that because no one in the Sheriffs Department has supervisory capacity over the Sheriff, no one in the Department has the power to investigate or remedy the reported wrong; therefore, the County contends the Sheriffs Department is not an “appropriate law enforcement authority.” To support its contention that an “appropriate authority” must be in a supervisory capacity over the person being reported, the County relies on City of Dallas v. Moreau, 697 S.W.2d 472 (Tex.App. — Dallas 1985, no writ). We disagree with the County’s reading of Moreau.

In Moreau, a bailiff spoke with various other bailiffs and judges about judicial conduct that he believed was inappropriate. See id. at 475. The court held that none of these people was an appropriate authority as a matter of law because, inter alia, none of them was in a supervisory position vis-a-vis the judge. See id. But the Moreau court explicitly limited its ruling to the facts in that case. See id. In addition, the fact that the bailiffs and judges worked within the judiciary is an important distinction. The judicial branch does not perform an investigative or executive function. The Sheriffs Department, on the other hand, is a part of the executive branch and is charged with investigating and enforcing the laws of the State. See Ex parte Hall, 888 S.W.2d 674, 676 (Tex.App. — Dallas 1992, no writ) (Sheriff is member of executive branch); Woomer v. City of Galveston, 765 S.W.2d 836, 839 (Tex.App. — Houston [1st Dist.] 1988, writ denied) (Sheriffs Department has duty to investigate). We thus find that the reasoning in Moreau offers little guidance.

Wymola’s charges were broadly phrased claims that Sheriff Hurley was violating her constitutional rights. Under section 39.03 of the Penal Code, it is a Class A misdemeanor if a “public servant ... intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.” Tex. Penal Code Ann. § 39.03 (West Supp.2000) (emphasis added). Although she did not refer to a particular section, in substance Wymola accused Sheriff Hurley of violating section 39.03. Wymola alleged a violation of statute, and thus her report was clearly within the ambit of the Act. We therefore need not address whether a violation of a constitutional right is covered by the Whistleblower Act’s definition, and we overrule the County’s sixth issue. Further, because the Sheriffs Department had the power and duty to investigate the alleged criminal violation, the Department was, as a matter of law, an “appropriate law enforcement authority.” We overrule the County’s second issue.

In its first issue, the County argues that Wymola failed to obtain a jury finding on an element of her cause of action and that this Court should reverse the judgment and render judgment in the County’s favor. The County contends that whether Wymola made her report to an “appropriate law enforcement authority” is a question of fact that should have been submitted to the jury but was not. The County further argues that it objected to the omission of this necessary element from the charge and tendered a substantially correct question and definition to prevent a deemed finding on this issue. See Tex.R. Civ. P. 279. Wymola contends, however, that this issue is a question of law.

Assuming without deciding that the County is correct that this determination is a question of fact, we do not believe the trial court erred in refusing to give an instruction on the issue. A fact issue that is established with uncontroverted evidence and is not in dispute should not be submitted to the jury. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex.1992). None of the material facts germane to this issue were disputed. There is no dispute that Wymola made a complaint to Keith Robinson. Nor is it disputed that Robinson worked for the Sheriffs Department as administrator of the Robertson County jail. As noted above, case law and plain meaning indicate that the question of whether a report was made to an “appropriate authority” should be determined based on the entity that received the report. Because there was no factual dispute regarding if or to whom a complaint was made, the court could have determined this issue — whether the Sheriffs Department was an “appropriate authority” — as a matter of law. Therefore, the trial court need not have instructed the jury on this issue. See id. We overrule the County’s first issue.

Causation

The .County argues in its third issue that the trial court erred in refusing to submit its instruction on causation. To preserve error on the instruction, the County had to provide the court with a substantially correct version of the instruction. See Tex.R. Civ. P. 278; Texas Dept. of Human Seros, v. Hinds, 904 S.W.2d 629, 637 (Tex.1995); Texas Natural Resource Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex.App. — Austin 1996, no writ). The County objected to the question on causation and submitted both a substitute question and an instruction. Although the objection would have been sufficient to preserve an error in the question, the County is complaining on appeal that the court erred in refusing its instruction. Thus, the submitted instruction must have been in substantially correct form to have preserved error. See Willis v. Maverick,, 760 S.W.2d 642, 647 (Tex.1988) (whén questions, definitions, and instructions are submitted in cluster, if any element is defective, entire cluster is not substantially correct).

We hold that the County’s instruction was not substantially correct. The County’s tendered instruction read in pertinent part, “You [the jury] are further instructed that if you believe by a preponderance of the evidence that Sheriff Hurley discharged the Plaintiff for violating policies of the jail prohibiting unauthorized personnel into the secured area, you must find for Robertson County, Texas.” This instruction implies that the County could disprove Wymola’s whistleblower claim merely by proving that Wymola’s report was not the sole cause for her termination. The supreme court has clearly stated that a plaintiff in this type of action need not prove that the whistleblowing activity was the sole cause for termination. See Hinds, 904 S.W.2d at 634. Because this instruction was incorrect, the entire request was not substantially correct. See Willis, 760 S.W.2d at 647. Without a substantially correct request, the County has not preserved this issue regarding the causation instruction. See Tex.R. Civ. P. 278. We overrule the County’s third issue.

Recovery ofPre- and Post-Judgment Interest

In its fourth issue, the County argues that the trial court erred in rendering judgment against Robertson County for the recovery of pre-judgment and post-judgment interest because the legislature has not waived sovereign immunity to allow for the recovery of interest. We disagree.

As a preliminary issue, we note that the County is not contesting the amount of interest awarded or the manner in which it was calculated. Instead, the County’s sole claim is that sovereign immunity bars any award of interest against the County. This Court has previously affirmed cases in which pre-judgment interest was awarded and the award thereof was not specifically challenged. See, e.g., City of San Antonio v. Heim, 932 S.W.2d 287 (Tex.App. — Austin 1996, writ denied); Texas Dep’t of Human Servs. v. Green, 855 S.W.2d 136 (Tex.App. — Austin 1993, writ denied). Here, the County is specifically attacking the award of pre-judgment interest by arguing that the legislature must expressly waive immunity to interest in order for it to be assessed against a governmental entity.

The Whistleblower Act provides that “[a] public employee who sues under this Act may recover: (1) actual damages.” Tex.Rev.Civ. Stat. Ann. art. 6252-16a, § 4(a)(1). “Actual damages” is undefined. In the absence of a statutory definition of “actual damages,” we look to the common law measure of damages. See Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.1980) (actual damages under Deceptive Trade Practices Act); Waldon v. Williams, 760 S.W.2d 833, 835 (Tex.App. — Austin 1988, no writ) (actual damages under pre-1989 section 92.056 of Property Code); Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 265 (Tex.App. — Corpus Christi 1987, writ refd n.r.e.) (actual damages under article 21.21 of Insurance Code).

The purpose of awarding actual damages has always been to compensate the injured plaintiff, and a law that denies recovery of pre-judgment interest frustrates this goal. See Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985), modified on other grounds, Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507 (Tex.1998) (changing time frame for computing common law pre-judgment interest to mirror statutory scheme). If a judgment is limited to the amount of damages sustained at the time of the incident, plaintiffs are not fully compensated. See Cavnar, 696 S.W.2d at 552. We disagree with courts that have characterized pre-judgment interest as incidental rather than actual damage. See, e.g., Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 816 (Tex.App. — Houston [1st Dist.] 1994, no writ). In this case, the trial court awarded Wymola pre-judgment interest for the period between the filing of her claim and the time of judgment. Such interest was intended to put Wymola as close as possible to the position she would have occupied but for the defendant’s wrong by compensating her for the fact that during the pendency of the case she was denied the opportunity to use and invest her damages. See Cavnar, 696 S.W.2d at 552. Because an award of prejudgment interest attempts to put a plaintiff back into her pre-injury position, we believe pre-judgment interest is properly a component of actual damages for which immunity has clearly been waived by the Whistleblower Act. We overrule the County’s issue as to pre-judgment interest.

The County further argues that a judgment against it for damages resulting from violation of the Whistle-blower Act cannot bear interest because the legislature has not expressly waived sovereign immunity for post-judgment interest. We first note that the record contains no indication that the County raised this issue before the trial court. Post-judgment interest was not mentioned in the County’s motion for judgment non obstante veredicto nor was it raised at the hearing on that motion. A letter brief filed by the County with the trial court addresses only its complaint concerning pre-judgment interest. In addition, no mention of immunity from interest was made in the County’s motion for new trial. A governmental entity’s immunity from suit is a jurisdictional issue that may be raised for the first time on appeal. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Immunity from liability, on the other hand, is an affirmative defense and must be pleaded or else it is waived. See id. Because the County attempts to assert immunity from liability for post-judgment interest and did not raise this issue before the trial court, the County may not raise it for the first time on appeal. See Tex.RApp. P. 33.1. In any event, every valid judgment bears post-judgment interest under the law. See Tex. Fin.Code Ann. §§ 304.002, .003 (West Supp.2000). We overrule the County’s fourth issue.

Exclusion of Contingent Fee Arrangement

In its fifth issue, the County complains that the trial court erred by excluding evidence of the contingent fee arrangement between Wymola and her attorneys. We disagree.

The admission or exclusion of evidence is committed to the trial court’s sound discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). A party seeking to reverse a judgment based on the admission or exclusion of evidence must show that the evidence was erroneously admitted or excluded and that the error probably caused rendition of an improper judgment. See id.; see also Tex.R.App. P. 44.1(a)(1). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This Court may not reverse for abuse of discretion merely because we disagree with the decision of the trial court. See id. at 242.

The Whistleblower Act provides that a public employee who sues under the Act may recover “reasonable attorney’s fees.” Tex.Rev.Civ. Stat. Ann. art. 6252-16a, § 4(4). In determining what constituted “reasonable attorney’s fees” in the context of the Deceptive Trade Practices Act, the supreme court looked to attorney discipline rules. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997). The County urges that the same factors should be applied in this case.

In Arthur Andersen, the supreme court addressed a complaint that a trial court erred by awarding fees calculated as a percentage of recovery based on a contingent fee agreement. See id. at 817. The supreme court was concerned that an award of attorney’s fees based solely on the contingency contract did not take into account the factors regarding what constitutes a “reasonable” fee. See id. at 818.. The court stated that a contingency agreement alone was insufficient evidence of what was a “reasonable” fee and therefore could not support a fee award under a statute authorizing recovery of “reasonable” fees. See id. at 818-19. The court also stated that “[a] party’s contingent fee agreement should be considered by the fact finder and is therefore admissible evidence.” Id. at 818 (citation omitted).

Here, the court was faced with the opposite issue of the problem presented in Arthur Andersen.' Wymola and her attorney had a contingent fee agreement, but Wy-mola did not want this fact revealed to the jury. Wymola’s attorney argued that evidence of the nature of the attorney-client fee arrangement was irrelevant because he was testifying as to his regular hourly rate without making adjustment for the risk involved in a contingent fee case. In denying the County’s proffer, the court stated on the record that because Wymola did not request that the jury take risk into account in determining what was reasonable, Andersen did not control the situation.

We do not believe the trial court abused its discretion in making this decision. In Arthur Andersen, the supreme court declared that evidence of a contingent fee arrangement was “admissible” and “should” be considered by the fact finder. See id. But the court did not mandate that such evidence must be admitted or considered. The opinion in Arthur Andersen gives no indication that the supreme court intended to deprive trial courts of their discretion. In this case, the trial court decided in its discretion that evidence of the contingent fee arrangement was not relevant. Arthur Andersen involved a very different factual situation in which the jury was presented with no evidence regarding reasonable fees other than the contingent fee agreement. Here, Wymola’s attorney testified regarding a number of the factors addressed in Arthur Andersen including the time and labor involved, the novelty and difficulty involved, the fee customarily charged in the locality for similar legal services, the time limitation imposed by circumstances, and the education and experience of the attorneys. Given the facts of this case, we hold that the trial court did not abuse its discretion in excluding evidence of Wymola’s contingent fee agreement.

The County further argues that the trial court erred in refusing its request that the jury be instructed on the Arthur Andersen factors. Other than Arthur Andersen, the County cites no authority for the proposition that jurors must be instructed regarding these factors. In Arthur Andersen, the supreme court did not state that the jury must be instructed regarding the factors but instead stated that the jury must be presented with evidence of the factors and instructed to award a dollar amount rather than a percentage. See id. at 819. As noted above, the record contains uncontroverted evidence of a number of the Arthur Andersen factors, and the charge correctly required the jury to assess attorney’s fees in dollar terms.

Because the trial court met the Arthur Andersen requirements and the County points to no other authority that entitled it to the requested instruction, we hold that the trial court did not abuse its discretion in refusing to instruct the jury regarding the factors. We overrule the County’s fifth issue.

Exclusion of Wayne Huggins’s Testimony

In its seventh issue, the County contends that the trial court erred in limiting the testimony of Officer Wayne Huggins. The County argues that Huggins’s testimony explained why the rule regarding jail security was enforced more strictly against Wymola than it was against other employees by establishing that Wymola had previously violated jail security. Wymola responds by arguing that the probative value of Huggins’s testimony was substantially outweighed by the risk of unfair prejudice. See Tex.R. Evid. 403.

As previously noted, admitting and excluding evidence are matters within the trial court’s discretion. To obtain reversal of a judgment based on error in the admission or exclusion of evidence, the County must show that the trial court’s ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. See Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 303 (Tex.1993); Lubbock County v. Strube, 953 S.W.2d 847, 855 (Tex.App. — Austin 1997, pet. denied); Tex. R.App. P. 44.1(a).

In a bill of exception, Huggins stated that he and Wymola had an intimate relationship while Wymola was still married, that Wymola allowed Huggins into the control room regardless of whether he had business at the jail, and that Hurley banned Huggins from the jail to “prevent a scandal or a problem within his department.” Portions of this testimony do explain why the rules regarding jail security might have been enforced more strictly against Wymola and are therefore clearly relevant. But Hurley testified that the breach of security that led to Wymola’s termination involved David Wymola, not Officer Huggins. In fact, Hurley made no mention of Huggins in his testimony. Because the portions of Huggins’s testimony regarding his relationship with Wymola were clearly prejudicial and because the County could have elicited testimony regarding Wymola’s alleged breaches in security from other witnesses, we hold the County has not shown that the trial court abused its discretion by limiting Huggins’s testimony. We overrule the County’s seventh issue.

Sufficiency of the Evidence for Mental Anguish Damages

In its eighth issue, the County argues that the evidence is legally and factually insufficient to support the jury’s award of mental anguish damages. In reviewing evidence under a legal insufficiency point, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We will uphold a finding if more than a scintilla of evidence supports it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.1970); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. See Crye, 907 S.W.2d at 499; Monel, 879 S.W.2d at 25. When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We will not substitute our judgment for that of the trier of fact merely because we reach a different conclusion. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App. — Austin 1992, no writ).

Citing both the supreme court and this Court, the County contends that Wymola was required to prove the duration of her anguish and that the anguish caused a substantial disruption in her daily routine. See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996); Strube, 953 S.W.2d at 856-57. The County mischaraeterizes both cases.

In Strube, this Court dealt with the issue of whether evidence supported an award of damages for future mental anguish. See Strube, 953 S.W.2d at 856. Our decision that the record did not support the award turned on the fact that Strube testified that the mental anguish had occurred in the past and did not testify that she expected it to recur. See id. at 857. Because the decision in Strube was based on case-specific testimony and dealt with the issue of future, rather than past, mental anguish damages, we find that it offers little guidance in this case.

In Saenz, the supreme court reiterated the standard of evidence required to support an award of mental anguish damages. See Saenz, 925 S.W.2d at 614 (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995)).

[Mjental anguish damages could not be awarded without either direct evidence of the nature, duration, or severity of [plaintiffs’] anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.

Id. (emphasis added) (internal citation and quotation marks omitted). Saenz requires that a plaintiff provide evidence of a high degree of mental pain and distress. Saenz does not prescribe the specific content or form of the evidence and instead offers plaintiffs a number of alternatives to prove mental anguish.

In Saenz, the only testimony regarding mental anguish was Saenz’s testimony that she “worried a lot” about the loss of income and being unable to pay future medical bills. See Saenz, 925 S.W.2d at 614. The record here contains far more evidence than the record in Saenz. Wymola testified that after she was fired, she “felt like my whole world had completely fallen apart.” When asked how she felt, she said, “I was terrified. I did not know where to go, where to turn. The only thing, honestly, that kept me from blowing my brains out were my two kids. Because at that point, I really didn’t have any reason to go on.” Wymola went on to testify how the distress caused by the loss of her job was different from the emotional trauma caused by her abusive husband. She characterized the loss of her job as a “deep loss,” “devastating,” and “overwhelming.” We hold that the record contains more than a scintilla of evidence regarding the severity of Wymola’s distress and that the award of mental anguish damages is fair and reasonable and not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. We overrule the County’s eighth issue.

CONCLUSION

Having overruled all of the County’s issues, we affirm the judgment of the trial court.

      . Wymola's claim was brought prior to September 1, 1993, when the revised and codified version of the Whistleblower Act took effect. See Tex. Gov't Code Ann. §§ 554.001-.010 (West 1994 & Supp.2000). All references are to former article 6252-16a.

      . Interest was computed at ten percent simple interest for the period between the filing of the suit and the day before the judgment was signed. The order states that the attorney’s fees are to be adjusted according to the extent to which the County appeals the judgment.

      . In its brief, the County argued that Keith Robinson was not an "appropriate authority.” At oral argument, the County admitted that a distinction based on which person within a particular agency or entity received the report would be artificial. The County conceded that the proper determination was whether the entity — i.e., the Sheriff's Department— was an "appropriate authority.”

      . The County does not challenge the sufficiency of the evidence to support the jury's findings beyond arguing that the evidence does not support the award of mental anguish damages.

      . The dictionary states that the plural form "authorities” is generally used to refer to the concrete, i.e., individuals. See Webster’s Third New International Dictionary 146 (Philip B. Gove ed., 1961).

      .As noted, this case is subject to the pre-codified Act. The amended version of the Act codifies case law regarding the meaning of "a report ... to an appropriate law enforcement authority” but defines the concept in terms of “the authority.” See Tex. Gov’t Code Ann. § 554.002 (West Supp.2000). Therefore we believe our reasoning applies equally to the current law and that whether a report is made to an "appropriate authority” is determined based on the entity rather than the individual under either version of the Act.

      .The Moreau court stated that Moreau also spoke with members of the city attorney's staff. Although the opinion does not explicitly say so, we can only assume that these staff members did not have the power to bring charges against the judge. Otherwise, the court’s conclusion that the city attorney’s staff members were not "appropriate” directly contradicts its reasoning that "appropriate” includes having "the power to arrest, prosecute or otherwise discipline on account of an alleged violation being reported.” City of Dallas v. Moreau, 697 S.W.2d 472, 474 (Tex.App. — Dallas 1985, no writ) (emphasis added).

      . The Penal Code defines public servant to include "an officer, employee, or agent of government.” See Tex. Penal Code Ann. § 1.07(41)(a) (West Supp.2000).
      At the time Wymola made her report, current section 39.03 was section 39.02. The Legislature renumbered the section effective September 1, 1994 but made no substantive changes. See Act of May 29, 1993, 73d Leg., ch. 900, § 1.01, Tex. Gen. Laws 3586, 3674.

      . Article 6252-16a provides, in pertinent part, “ ‘Law’ means a state or federal statute.” Tex.Rev.Civ. Stat. Ann. art. 6252-16a, § 1(1).

      . The County implies — but does not explicitly argue — that Wymola failed to establish that her report was made in good faith because Wymola admitted that Robinson was not a law enforcement officer, that he worked for the Sheriff, and that shé did not expect Robinson to personally investigate the Sheriff or stop the Sheriff from "running the jail the way he was running it.” We disagree for two reasons. First, the requirement that a report be made in good faith refers to whether the . complainant believed in good faith the reported behavior violated the law and not whether the employee believed in good faith that the entity receiving the report had the power to act upon it. See Wichita County v. Hart, 917 S.W.2d 779, 784-85 (Tex.1996). Second, even if good faith referred to the employee's subjective belief that the recipient of a report could remedy the alleged wrong, the record establishes that Wymola had such a subjective belief. Even after making the admissions the County cites, Wymola maintained that she "had faith that [Robinson] was going to do something.”

      . We question whether the County’s tendered question was substantially correct. The question was accompanied by a definition citing language from this Court defining "appropriate law enforcement authority” to include “at minimum any public authority having the power and duly of inquiring into the lawfulness of the questioned conduct and causing its cessation.” Travis County v. Colunga, 753 S.W.2d 7Í6, 719-20 (Tex.App. — Austin 1988, writ denied) (emphasis added). However, the tendered definition omitted “at minimum” and thus characterized an inclusive definition as exclusive. However, this issue is not dis-positive, and we will not address it further. Because the missing element was a question on a finding on which Wymola had the burden of proof, the County's objection to the omission of the question was sufficient to preserve error. See Tex.R. Civ. P. 278.

      . Several cases have stated that questions of fact can become questions of law if there is no dispute as to any material fact and reasonable minds cannot differ. See, e.g., Logan v. Mullis, 686 S.W.2d 605, 608 (Tex.1985). Questions of fact, although suitable for jury consideration, can be decided as a matter of law and need not be addressed by a fact finder when the evidence is conclusive. See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence” and "Lnsufficient Evidence,” 69 Tex. L.Rev. 515 (1991).

      . We note that the County does not argue that the evidence does not support the amount awarded but instead argues that the evidence does not support awarding mental anguish damages in any amount. Cf. Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 593 (Tex.App. — Austin, 1997) (attack on sufficiency of evidence to support amount awarded), reversed on other grounds, 43 Tex. S.Ct. J. 348 (Jan. 27, 2000).


source: Caselaw Access Project

author: DORSEY, Justice.

license: Public Domain

text:
    Benjamin STONE, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-97-845-CR.
    Court of Appeals of Texas, Corpus Christi.
    April 13, 2000.

      Benjamin Stone, Sr., Palestine, pro se.
    Noel Henry Reese, Gonzales, for appellant.
    W.C. Kirkendall, Seguin, for State.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

DORSEY, Justice.

The issue in this case is whether appellant received ineffective assistance of counsel during his trial for delivery of a controlled substance when his attorney called him to testify and elicited from him testimony regarding a prior murder conviction that the State would not have been allowed to bring up otherwise. We hold that appellant has shown ineffective assistance of counsel and reverse and remand.

Stone was convicted of delivery of a controlled substance after a one-day jury trial and was sentenced to ten years imprisonment and a $10,000 fíne. In 1980, Stone was convicted of murder and served five years in the penitentiary for that crime. During voir dire in the present case, the issue arose of whether the remote murder conviction would be admissible against him in the present case. The court indicated that it would not allow evidence regarding the murder conviction during the guilt-innocence stage of the trial. The State did not attempt to bring it up. However, Stone’s own attorney called Stone to the stand and brought up the prior murder conviction directly. We hold that no reasonably competent attorney could have believed that introducing that evidence amounted to sound trial strategy, and find, therefore, that Stone received ineffective assistance of counsel.

It is common practice for a defense attorney to elicit from his own client evidence regarding a prior conviction when counsel'knows or reasonably believes that if he does not bring it up first, the State will. The belief is that getting the issue out first will “pull the sting” from the impact of its coming from the State. However, in this case, the State could not have introduced evidence of Stone’s prior conviction. Not only did the court indicate at the pre-trial bench conference that he would not allow the evidence during the guilt-innocence portion of the trial, the court would have been required to make that ruling under the applicable law.

Texas Rule of Evidence 609(b) states that evidence of a prior conviction may not be used for the purpose of attacking the credibility of a witness if more than ten years has elapsed since the date of the conviction unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effects. TEX. R. EVID. 609(b). Since the State did not seek to introduce that evidence, the trial court did not make the finding required to allow it. We can see no possible benefit to be gained by Stone “fronting” this issue to the jury, especially when weighed against the facts of this case which made that evidence particularly dangerous for Stone, and in light of the fact that the State would not have been able to introduce evidence about it.

The Texas Court of Criminal Appeals recently detailed the analytical framework for claims of ineffective assistance of counsel:

Texas courts adhere, as we must, to the United States Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was inadequate so as to violate a defendant’s Sixth Amendment right to counsel. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The defendant must first show that counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Ex Parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993). Second, assuming appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. McFarland v. State, 928 S.W.2d at 500. In other words, appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d at 55. This two-pronged test is the benchmark for judging whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).
The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App.1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d at 500. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both showings an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854 S.W.2d at 131. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte Fel-ton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).

Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999).

Our first question is whether Stone’s counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812; McFarland, 928 S.W.2d at 500; Ex Parte Menchaca, 854 S.W.2d at 131. However, before we reach that question, it is necessary to determine whether the record in this case is-adequate to evaluate counsel’s performance. A claim of ineffective assistance must be firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App.1994). A serious obstacle to many such claims is the lack of an adequately developed record. Thompson, 9 S.W.3d at 813-14. In fact, the court of criminal appeals recently spoke to that issue:

A substantial risk of failure accompanies an appellant’s claim of ineffective assistance on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.

Thompson, 9 S.W.3d at 813-14.

The reason an adequate record is so important in these cases is because in the absence of a record, the court will indulge strong presumptions that counsel’s performance was a part of trial strategy, and typically will not second-guess a matter of trial strategy. See Young, 991 S.W.2d at 837-38. We must presume “that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Young, 991 S.W.2d at 837. We presume that counsel’s conduct lies within the “wide range of reasonable representation” and constitutes sound trial strategy. McFarland, 928 S.W.2d at 500. We must evaluate the quality of the representation from counsel’s perspective at trial, rather than counsel’s isolated acts or omissions in hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986).

The record of this case reveals that the State’s case centered around the testimony of two undercover informants who had orchestrated the drug buy from Stone. Cristal Kubicek testified that she was a narcotics sergeant’s investigator and had worked on many undercover narcotics cases. She testified that on the night of the drug buy, she was riding with a confidential informant, Barbara Miller, who had previously, introduced her to Stone. On that night, she and Miller drove up to the parking lot of a club. Miller got out of the car, leaving Kubicek in the passenger’s seat. Kubicek saw Stone and motioned for him to approach the car. She asked him if he had a “twenty,” which means “one rock” of crack cocaine.

At that point, she testified, Stone got into the car -with her and told her if he “caught a case on this,” meaning if he was being set up by the police on the drug buy, he would “take care” of Kubicek and Miller. They argued, and Kubicek attempted to leave. She testified that after Miller got back in the vehicle and they started to leave, Stone approached her and sold her the crack. She testified, though, that, again, “the last words out of his mouth were, T swear to God that if I catch a case on this, I will kill you both.’ ’’ She also testified that of the many undercover drug buys she has conducted, she has only been threatened like that one other time. Kubi-cek also testified that while she was in the courtroom the previous day, Stone had caught her eye and mouthed the words “whore” and “bitch” at her.

Barbara Miller’s testimony corroborated Kubicek’s. She heard Stone threaten to kill the two women if he wound up getting busted for selling the crack to them. She was positive that she had heard Stone threaten to kill them if he “caught a case” over the transaction. She also testified that she had gone to school with Stone and thus had known him for about twenty years. The State put on two other witnesses who testified to the chain of custody and that the substance was cocaine.

Stone’s defense was that of alibi, consisting of his and his wife’s testimony. His wife testified first that she remembered the night in question specifically and that her husband was with her the entire evening. Then Stone testified that he remembered the night in question specifically and that he was with his wife the entire evening. He denied threatening anyone at all or, particularly, threatening to kill anyone that night. With regard to the prior conviction, his attorney solicited the following testimony:

Q. Mr. Stone, you are Benjamin Stone, Sr., are you not?
A. Yes, I am.
Q. Are you the same Benjamin Stone that on February 14th, 1980, ... in the 25th Judicial District of Gonzales County ... was convicted of murder?
A. Yes, I was, but it was—
Q. That is all of the question.
A. Yes, sir.
Q. Were you sentenced to the penitentiary?
A. Yes, sir.
Q. Did you serve some time in the penitentiary?
A. Five years and six months.
Q. Were you paroled?
A. Yes, I was.
Q. Are you on parole today?
A. No, sir. I finished up February 14th, 1995.
Q. You have had other problems with the law?
A. Yes, I have.
Q. But nothing serious enough to send you to the penitentiary?
A. No, sir.

Under the particular facts of this case, we find the record is adequate to show trial counsel’s ineffectiveness with regard to admitting the prior murder conviction. The reason for developing a record here would be to ask Stone’s attorney what his strategy was in offering the prior conviction evidence through the defendant when it would not come in otherwise. We are convinced that nothing trial counsel could say would make this court believe that it was sound trial strategy to offer the prior conviction under the circumstances here. We are able to determine from the statement of facts from the trial and pretrial proceedings that counsel rendered ineffective assistance of counsel. Thus, we find the record sufficient in this case.

Appellant argues that counsel’s performance was deficient because there was no need for him to elicit the testimony regarding the murder conviction from him, and doing so diminished Stone’s credibility and alibi defense. Appellant contends that while it is a common trial tactic, when a defendant who has been earlier convicted of a felony and is going to testify, to admit to his prior conviction before the state hammers him with it on cross examination, such reasoning does not apply here in that the State could not have used the conviction to impeach his credibility, because the conviction is too remote in time under Texas Rule of Evidence 609(b). Rule 609 generally allows one’s credibility to be attacked by evidence that the witness has been convicted of a felony or a crime involving moral turpitude. TEX. R. EVID. 609(b) (Vernon supp.2000). However, evidence of a conviction is not admissible under this rule if the date of conviction or the release of the witness from confinement is more than ten years earlier, whichever is the later date. Id. The court can determine, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. Id.

This trial took place in October of 1997. Stone’s murder conviction was in February of 1980, and he was paroled after serving five and one half years in prison. Although the precise date he was released from confinement is not reflected, computation indicates that it was in the fall of 1985, more than ten years earlier. It could not have been admitted to impeach him, absent a particularized finding by the judge.

The court had indicated earlier in the trial that evidence of the prior conviction would not be allowed during the guilt portion. No pre-trial ruling was sought, nor was the issue raised by appellant’s counsel in a motion in limine. However, the following exchange occurred during voir dire:

Prosecutor: In this case, because of the circumstances of this delivery, the offense is a third-degree felony. Under Texas law a third degree felony is punishable from a minimum of two to a maximum of ten years in the penitentiary. There also may be a fine assessed.
Def. counsel: Your Honor, I am going to object at this time. May we approach the bench?
Court: Yes.
Def. counsel: Having come to the bench, I am either lodging an objection or, I believe more appropriately, asking that this Panel be released and a mistrial declared for my client. This jury has not been seated. It is my belief by telling the jury that under the circumstances of delivery that this is a third degree felony; that he is in effect telling the jury he is the one familiar with the penal laws of this State; that this gentleman has a prior conviction and, Judge, that is improper at this time. That is the only way he can get there and I object.
Prosecutor: Well, Judge, a third degree felony is what is alleged in the indictment and I am entitled to question the Panel about the range of punishment alleged in the indictment. I can’t help it if Mr. Stone has a prior felony, but if this were a non-state jail felony and enhanced by this I would be entitled to ask them about the enhanced penalty as well.
Court: Well, that is an interesting question. Unfortunately I can’t answer it because ... tried for state jail.[sic] Is that like a DWI where the prior is part of the instant offense 'or is it—
Prosecutor: I believe it is a punishment issue, Your Honor.
Court: If it is just a punishment issue, then you shouldn’t have told them.
Prosecutor: I am entitled to ask them about an enhanced penalty. If this were a second degree felony and he had one prior felony, I would be entitled to ask them about the punishment range on a first degree felony.
Def. counsel: You have to keep it within the range of two to ten; you can’t explain to them how you got there.
Prosecutor: I didn’t. I didn’t mention a prior.
Court: You probably need to tell them that—
Prosecutor: Mr. Morris can. do whatever he wants to, Your Honor, but I am saying two to ten.
Court: I just want to make sure the prior is a punishment issue. The prior is not going to be read to the Jury after while [sic], unless they find him guilty.
Prosecutor: Unless the Court instructs us to prove it up on guilt or innocence, I believe it is a punishment issue.
Court: I agree with you.
Def. counsel: It may come in on the Defense’s case but we don’t know about that yet.
Court: I am not going to grant your request for a mistrial and I will overrule the objection, but I want to make sure it is a punishment issue and not guilt or innocence. Usually that is not how you explain it to them, but if that is how you want to—
Prosecutor: I don’t want to try to explain the range of punishment to state jail; if he wants to, he can go ahead.
Court: All right.

We hold that under the facts of this case, counsel’s decision to elicit testimony regarding the prior murder conviction cannot be considered part of a reasonable trial strategy. We believe that where, as here, the record affirmatively demonstrates that counsel took some action in defending his client that no reasonably competent attorney could have believed constituted sound trial strategy, the defendant has shown he received ineffective assistance of counsel. We hold, therefore, that counsel’s performance in eliciting that testimony was deficient representation that fell below the objective standard of reasonableness. See Thompson, 9 S.W.3d at 812; McFarland, 928 S.W.2d at 500.

The second prong of the Strickland test for ineffective assistance of counsel requires that we determine whether Stone has shown a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812; McFarland, 928 S.W.2d at 500. The unnecessary placing before the jury of Stone’s conviction of murder harmed his defense in two ways: (1) it diminished his credibility when credibility was critical — his presentation of his alibi defense; and (2) it gave substance to his threats to kill the prosecution witnesses. One should be tried for only the crime for which he is indicted, and not for being a criminal generally. Stone was deprived of a fair trial with a reliable result. See Strickland, 466 U.S. at 687,104 S.Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999). Accordingly, we find Stone received ineffective assistance of counsel and reverse and remand this cause to the trial court. Because we reverse pursuant to appellant’s first point of error, we do not reach the merits of his second point.

      . Trial counsel served as Stone's initial appellate counsel and selflessly raised the issue of his own ineffectiveness. Subsequently, new counsel was appointed for the appellant.


author: SAM NUCHIA, Justice.

text:
    Freddie Lee BICE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00863-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 20, 2000.
    Rehearing Overruled May 26, 2000.
    Lane D. Thibodeaux, Bryan, for appellant.
    James Kuboviak, Bryan, for State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

SAM NUCHIA, Justice.

Appellant was charged with driving while intoxicated. Appellant filed motions to suppress observations and opinions flowing from an allegedly illegal stop. Appellant also made a motion to suppress statements made by him during custodial interrogation. The judge denied those motions, and appellant pled guilty. The judge sentenced appellant to 180 days confinement probated for six months and a $2,000 fine, of which $1,000 was probated. Appellant contends the court erred in denying his motions to suppress. We affirm.

FACTS RELEVANT TO THE MOTION TO SUPPRESS

Officer Demond Oliver testified he saw appellant driving his truck westbound in the 100 block of West William Joel Bryan Parkway. Oliver testified he saw appellant’s truck leave a stoplight by squealing his tires. He said he stopped appellant because appellant’s excessive acceleration was in violation of sections 545.420 and 545.851 of the Texas Transportation Code.

Oliver said, after he stopped appellant, Oliver attempted to administer the field sobriety tests, and appellant showed signs of intoxication. Oliver testified appellant twice said, “I can’t do this sober.” Oliver arrested appellant for driving while intoxicated. Appellant gave Oliver permission to move his truck to a place that appellant could come and get it later. When Oliver moved the truck, he found an open beer can that was cool to the touch. Oliver took appellant to jail where he read appellant his article 38.22 rights, and appellant consented to giving a breath sample.

After appellant was videotaped taking field sobriety tests and giving the breath specimen, appellant said the drinks he had were three-fourth’s “whiskey or alcohol. Oliver testified this statement was not in response to interrogation, but “just a statement he made.”

ANALYSIS

In two points of error, appellant contends the court erred by denying his motions to suppress because appellant’s conduct was not prohibited by either section 545.420 or 525.351 of the Texas Transportation Code and, alternatively, that the evidence was insufficient to establish that Officer Oliver had probable cause to stop appellant.

We generally review a trial court’s ruling on a motion to suppress for abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985); Santos v. State, 822 S.W.2d 338, 339 (Tex.App. — Houston [1st Dist.] 1992, pet. ref d). However, when presented with a question of law based on undisputed facts, we apply a de novo review. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (holding that de novo standard applies to motion to suppress involving mixed questions of law and fact not turning on the credibility of witnesses). Where the resolution of mixed questions of law and fact turns on an evaluation of credibility and demeanor, we still review the evidence in the light most favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89.

Appellant argues that he could not have committed the offense of “excessive acceleration” because he was not participating in any type of competition. Appellant urges this court to reconsider our holding in Hams v. State because the placement of the word “participate” in the codified statute makes it evident that participation is a condition precedent to criminal liability. See Harris v. State, 713 S.W.2d 773 (Tex.App. — Houston [1st Dist.] 1986, no pet.) (holding there was probable cause to stop a motorist for exhibition of acceleration where deputy observed a car “spinning its tires at a red light when it came off the light”).

Section 545.420 of the Texas Transportation Code reads in relevant part:

A person may not participate in any manner in:
(1) a race;
(2) a vehicle speed competition or contest;
(3) a drag race or acceleration contest;
(4) a test of physical endurance of the operator of a vehicle; or
(5) an exhibition of vehicle speed or acceleration or to make a vehicle speed record.

Tex. TRANSPORTATION Code Ann. § 545.420(a)(5) (Vernon 1999). Oliver testified without contradiction that he stopped the truck only after he observed it spinning its tires at a red light. We have already considered and rejected appellant’s interpretation under the predecessor to section 545.420 of the Texas Transportation Code. See Hams, 713 S.W.2d at 775; see also Collins v. State, 829 S.W.2d 894, 896-97 (Tex.App. — Dallas 1992, no pet.) (holding statute prohibiting exhibition of acceleration was applicable to motorist who screeched his tires even though defendant was not involved in competitive conduct such as drag racing). We hold that changing the location of the word “participate” in the present statute was not intended to change the meaning of the statute and add a requirement of competition to section 545.420 of the Texas Transportation Code. Appellant’s violation of section 545.420 gave Officer Oliver probable cause to stop appellant. See Hams, 713 S.W.2d at 775 (holding officer had probable cause to stop appellant for exhibition of acceleration for spinning tires at a red light).

Because we find Oliver had probable cause to stop appellant under section 545.420, we need not address appellant’s allegation that he did not violate section 545.351 of the Texas Transportation Code. The court did not abuse its discretion in denying appellant’s motions to suppress.

We overrule appellant’s first and second points of error.

We affirm.

      . The predecessor to section 545.420 read:
      No person shall drive any vehicle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition, contest, test, or exhibition.

        Tex.Rev.Civ. Stat. Ann. Art. 6701d, § 1859(a) (Vernon 1977).


author: PER CURIAM.

text:
    The STATE of Texas, Appellant, v. Manual ZAVALA, Appellee.
    No. 13-00-179-CR.
    Court of Appeals of Texas, Corpus Christi.
    April 20, 2000.

      Tom O’Connell, Crim. Dist. Atty., McKinney, for Appellant.
    Alan K. Taggart, Dallas, Sharon Rose Sela, Asst. Dist. Atty., McKinney, for Ap-pellee.
    Before Justices HINOJOSA, YÁÑEZ, and CHAVEZ.
   OPINION

PER CURIAM.

This is an attempted appeal by the State of the trial court’s grant of a motion to dismiss an information. The order of dismissal was signed on January 24, 2000, and the State’s notice of appeal was due on February 8, 2000. Any motion to extend the time for filing the notice of appeal was due on February 23, 2000. The State filed its notice of appeal on February 23, 2000,, and a motion for extension of time to file the notice of appeal on March 31, 2000. Because neither motion was filed timely, we dismiss the appeal for want of jurisdiction.

A timely filed notice of appeal which complies with the requirements of rule 26 is essential to vest a court of appeals with jurisdiction. Tex.R.App. PROC. 26; Slaton v. State, 981 S.W.2d 208, 209 (Tex.Crim.App.1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). Without jurisdiction, a court of appeals cannot address the merits of the appeal and may take no action except to dismiss the appeal. Slaton, 981 S.W.2d at 209; Olivo, 918 S.W.2d at 523.

In this case, the State’s notice of appeal and its motion for extension of time were not filed timely. Thus, unless there is some exception to the application of the rules, we have no jurisdiction to consider this case.

The Texas Supreme Court has created such an exception for civil cases. In Verburgt v. Domer, 959 S.W.2d 615 (Tex.1997), the supreme court held that “a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2).” Id. at 617. Although Verbwrgt was decided under the former rules of appellate procedure, the exception has been held applicable to the filing of a notice of appeal under the current rules. Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex.App.— Houston [1st Dist.] 1999, no pet. h.); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App.— Amarillo 1999, no pet. h.); Coronado v. Farming Technology, Inc., 994 S.W.2d 901, 901-02 (Tex.App. — Houston [1st Dist.] 1999, no pet.).

However, this exception has never been recognized in criminal cases. The facts of the instant case were present in Olivo: the notice of appeal was filed within the fifteen-day period for filing a motion for extension of time to file notice of appeal, but without any motion for extension of time. The Court of Criminal Appeals held: “When a notice of appeal, but no motion for extension of time is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it.” Olivo, 918 S.W.2d at 523. The court further held that a court of appeals could not use the rule-suspension provision of former rules of appellate procedure 2(b) or 83 to acquire jurisdiction, even though the Texas Supreme Court had followed a more liberal policy for civil cases. Id. at 532-24.

Since the Verburgt decision, the Court of Criminal Appeals has held that its decision in Olivo remains unchanged, even though the rules of appellate procedure have been revised. Slaton, 981 S.W.2d at 209-10. Furthermore, the Court of Criminal Appeals has declined to re-examine Olivo in light of the Verburgt opinion. See Williams v. State, 957 S.W.2d 949, 950 (Tex.App. — Austin 1997, no pet.); Slaton, 981 S.W.2d at 209 n. 3 (in which the Court of Criminal Appeals expressly rejects the Williams rationale).

It is clear that the Olivo rule is alive and well. Accordingly, we must deny the State’s motion for extension of time to file the notice of appeal and dismiss this appeal for want of jurisdiction.

      . The Supreme Court acknowledged that a different rule is applied in criminal cases. See Verburgt, 959 S.W.2d at 616.


text:
    INDUSTRIAL SERVICES U.S.A., INC., Appellant, v. AMERICAN BANK, N.A., Appellee.
    No. 13-00-084-CV.
    Court of Appeals of Texas, Corpus Christi.
    April 20, 2000.

      Jim David Biekham, Austin, for Appellant.
    Scott J. Duncan, Porter, Rogers, Dahl-man, Gordon & Lee, Corpus Christi, for Appellee.
    Before Justices HINOJOSA, YÁÑEZ, and CHAVEZ.
   OPINION

PER CURIAM.

This is an attempted appeal of a summary judgment granted on January 5, 2000 by the 214th District Court of Nueces County. The notice of appeal was due on February 5, 2000, and any motion to extend time for filing the notice of appeal was due on February 20, 2000. The notice of appeal was filed on February 7, 2000; no motion for extension of time to file the notice of appeal was filed.

To perfect an appeal, a notice of appeal generally must be filed within thirty days after the date the judgment is signed. Tex.R.Ai>p. Peoc. 26.1. A motion to extend the time to file a notice of appeal may be filed within fifteen days after the deadline for filing the notice of appeal. Tex.R.App. PROC. 26.3. The motion for extension of time must contain the facts relied on to reasonably explain the need for an extension. Tex.R.App. Proc. 10.5(b).

On March 8, 2000, this Court notified appellant’s counsel as follows:

Upon inspection of the clerk’s record, it appears that the appeal has not been timely perfected. Pursuant to Tex. R.App. P. 42.3, you are hereby given notice of this defect so that steps may be taken to correct the defect, if it can be done. If, after the expiration of ten days from the date of receipt of this letter, this defect is not cured, this appeal shall be dismissed.

Appellant has not responded to this notice.

In Verburgt v. Domer, 959 S.W.2d 615 (Tex.1997), the- Texas Supreme Court held that “a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2).” Id. at 617. Although Verburgt was decided under the former rules of appellate procedure, the exception has been held applicable to the filing of the notice of appeal under the current rules. Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex.App. — Houston [1st Dist.] 1999, no pet. h.); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App. — Amarillo 1999, no pet. h.).

However, this judicially-created implication does not extend to the requirement that the movant provide a reasonable explanation why an extension is necessary; it is still necessary to demonstrate facts that reasonably show a need to extend the time for filing the notice of appeal. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998) (applying the Verburgt rule to late-filed pauper’s affidavit in lieu of appeal bond); Smith, 7 S.W.3d at 288-89; Kidd, 1 S.W.3d at 310; Coronado v. Farming Technology, Inc., 994 S.W.2d 901, 901-02 (Tex.App. — Houston [1st Dist.] 1999, no pet.).; Miller v. Greenpark Surgery Center Assoc., Ltd., 974 S.W.2d 805, 807-08 (Tex.App. — Houston [14th Dist.] 1998, no pet.).

Appellant has failed to provide this Court with facts that reasonably show the need to extend the time for filing the notice of appeal. We hold this appeal was not ■ timely perfected and dismiss it for want of jurisdiction.