author: DON BURGESS, Justice.

text:
    Janet HARRELSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 09-04-005 CR, 09-04-006 CR, 09-04-007 CR, 09-04-008 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Oct. 14, 2004.
    Delivered Dec. 22, 2004.

      James D. Evans, III, James D. Evans, III & Associates, Joseph R. Willie II, D.D.S., J.D., Willie & Associates, Houston, for appellant.
    Michael R. Little, Dist. Atty., Michael A. Mark, Asst. Dist. Atty., Liberty, for state.
    Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
   DON BURGESS, Justice.

OPINION

A jury convicted Janet Harrelson of the following offenses: abuse of official capacity (Trial Cause No. 24,514, Appeal Cause No. 09-04-005 CR); forgery (Trial Cause No. 24,515, Appeal Cause No. 09-04-006 CR); and two charges of tampering with a governmental record (Trial Cause Nos. 24,516 and 24, 518, Appeal Cause Nos. 09-04-007 CR and 09-04-008 CR). The trial court sentenced Harrelson as follows: (1) for abuse of official capacity-sixty days’ confinement in the Liberty County Jail, $318 in court costs, and $880 in restitution; (2) for forgery — ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division, probated for ten years, a $10,000 fine, and $318 in court costs; and (3) for each charge of tampering with a governmental record — two years’ confinement in the Texas Department of Criminal Justice, State Jail Division, probated for five years, a $5,000 fine, and $318 in court costs. The sentences run concurrently.

Harrelson appeals raising a number of issues. Following a brief recitation of the facts, we first address Harrleson’s claims the evidence is legally insufficient to support her conviction for any of the offenses.

BACKGROUND

The charges brought against Harrelson arise from a bench warrant transferring her son, Jeffrey Paul Hale, from the Stiles Unit of the Texas Department of Criminal Justice, Institutional Division, in Jefferson County, Texas, to the Liberty County Jail. The record reflects that in November of 2002, a bench warrant was sought on the grounds a necessity existed for Hale to appear as a witness in a motion for modification regarding his younger brother. The first application resulted in a bench warrant authorized by Judge Zbranek. That warrant was not executed because it was issued on Friday, with a Sunday return date, and TDC requires three working days’ notice. It also did not include Hale’s TDC number. Sheriff Greg Arthur returned that warrant. A second application resulted in another bench warrant which purported to be, but was not, authorized by Judge Zbranek. On November 13, Odell McDuffie, Judge Don Taylor’s bailiff, went to the Stiles Unit to execute the warrant. Harrelson went with him. McDuffie forgot his wallet and TDC would not release Hale to him without identification. The next day, John Davis, Judge Zbranek’s bailiff, accompanied by Harrelson, executed the warrant and Hale was placed in the Liberty County Jail. The mother of one of Hale’s victims, Sharon Dulany, was notified of the transfer. Following phone calls by Dulany, the story “broke” and it was discovered the second bench warrant was not authorized. Hale was transferred back to the Stiles Unit. Harrelson was removed from office and indicted.

LEGAL SUFFICIENCY OF THE EVIDENCE

Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury’s finding and to determine whether, based on that evidence and those inferences, a rational jury could have found all of the essential elements of the offense beyond a reasonable doubt. See Richardson v. State, 879 S.W.2d 874, 879 (Tex.Crim.App.1993). As factfinder, the jury may accept or reject any or all evidence. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). That the defendant presents a different factual version does not render the evidence insufficient. See Anderson v. State, 701 S.W.2d 868, 872-73 (Tex.Crim.App.1985); Lynch v. State, 952 S.W.2d 594, 596 (Tex.App.-Beaumont 1997, no pet.).

' Abuse of Official Capacity

Harrelson was charged with and convicted of abuse of official capacity. In issue three, Harrelson claims there was no abuse of official capacity as a matter of law. The law provides:

§ 39.02. Abuse of Official Capacity
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.

Tex. Pen.Code Ann. § 39.02(a)(2) (Vernon 2003).

The indictment alleged that Harrelson, with intent to harm or defraud another, intentionally or knowingly misused government property, services, or a thing of value belonging to the government, which came into her custody or possession by virtue of her office or employment. Specifically, the indictment alleged that she used government money, more than $500 but less than $1,500 to pay for:

1. the housing of Jeffrey Paul Hale at the Liberty County Jail;
2. a portion of the salary paid by Liberty County to Odell McDuffie, Jr., John Wilbert Davis III; and Brian Bortz; and/or
3. the travel costs and/or expenses of:
a. McDuffie and Davis traveling to and from the Mark Stiles Unit of TDCJ-ID;
b. Davis traveling to Dayton, Texas, with Jeffrey Paul Hale and Har-relson; and/or
c. Bortz traveling to return Jeffrey Paul Hale to TDCJ-ID.

The evidence in the record does not establish the salaries paid to McDuffie, Davis or Bortz varied, by any degree, because of the trips to Beaumont. There is no showing their paychecks would not have been exactly the same had they been otherwise engaged. Therefore the second manner alleged cannot support the conviction.

Our review of the record reveals no evidence was admitted regarding travel costs. Accordingly, the third manner alleged cannot support the conviction.

Regarding the added expense to Liberty County of housing Hale, evidence was admitted that demonstrates Corrections Corporation of America billed Liberty County for $154,740 for inmate housing in November 2002, and $151,344 for December 2002. The invoices for those two months show the cost of housing Hale in the Liberty County Jail was $561 for November 2002 and $165 for December 2002, for a total of $726. Two checks payable to CCA were also admitted into evidence. Check numbered 4734, dated December 10, 2002, was for $432,655.44 and signed by Harold Seay and Janet Harrelson. Check numbered 5575, dated January 21, 2003, was for $410,217.25 and signed by Harold Seay and Linda Leonard. Harold Seay testified the checks were written for the November and December billing by CCA and would encompass the charges for housing.

Because Harrelson did not sign the check dated January 21, 2003, the monies paid by that check were not a thing of value which ever came into her custody or possession by virtue of her office or employment. Thus that payment cannot support the conviction.

The first payment was signed by Harrel-son and the cost of housing Hale, encompassed within that payment, exceeded $500. Harrelson was charged, and the jury was so instructed, with misuse of government funds. The charge defined misuse as meaning “to deal with property contrary to (a) an agreement under which the public servant holds the property or (b) a contract of employment or oath of office of a public servant or (c) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property or (d) a limited purpose for which the property is delivered or received.” The charge’s application paragraph does not identify which of these means the State was relying upon, but did instruct, “[t]he law provides that if the County Treasurer doubts the legality or propriety of [a] ... check ... presented to the County Treasurer for payment, the County Treasurer may not make the payment.” See Tex. Loc. Gov’t Code Ann. § 113.041(d) (Vernon 1999). Therefore, as we appreciate it, the issue is whether Har-relson misused county funds by signing the check.

It was not disputed that Liberty County owed the money to CCA — Hale was housed in the Liberty County jail for those days — and the record does not demonstrate a failure to comply with the procedural requirements for payment. Whether or not the county should have owed CCA for housing Hale, it did. Any underlying illegality or impropriety either is, or is not, an offense in and of itself. It does not transform the signing of the check, after approval by the commissioners court, into an abuse of official capacity. CCA’s request for payment was not illegal or improper. There is no evidence CCA did not render any of the services an/or goods for which it requested payment to Liberty County. We conclude there is no evidence to support Harrelson’s conviction for abuse of official capacity and sustain issue three. Accordingly, the judgment of the trial court in Cause No. 24,514 must be reversed and an order of acquittal entered. See Tex.R.App. P. 43.2(c); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Forgery

Harrelson was also indicted for and convicted of forgery. Issue two contends no forgery was committed by Harrelson as a matter of law. The law applicable at the time of the offense is as follows:

§ 32.21. Forgery.
(a) For purposes of this section:
(1) “Forge” means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B).
(b) A person commits an offense if he forges a writing with intent to defraud or harm another.

Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3643-44, amended by Act of May 10, 1997, 75th Leg., R.S., ch. 189, § 1, 1997 Tex. Gen. Laws 1045-46 (current version at Tex. Pen.Code Ann. § 32.21 (Vernon Supp. 2005)).

The State alleged two different means by which Harrelson committed the offense. First, the indictment alleged that Harrel-son, with intent to harm or defraud another, made, completed, executed, or authenticated a writing, the second bench warrant, so that it purported to be the act of another, J.C. Zbranek, who did not authorize that act. Second, the indictment alleged that Harrelson, with intent to harm or defraud another, possessed a forged writing, the second bench warrant, with intent to transfer or pass it, knowing it was forged.

Judge J.C. Zbranek, formerly of the 75th District Court, testified he authorized his signature to be stamped on the first bench warrant, but not the second. Barbara Shipman, Judge Zbranek’s court coordinator, testified Judge Zbranek had a signature stamp which was kept in her desk drawer. Shipman stamped a bench warrant with his signature on November 8, 2002. According to Shipman, she did not stamp another bench warrant the next week. Shipman saw another bench warrant on her desk one morning, but did not know what happened to' it. Shipman did not stamp the bench warrant, it was gone from her desk approximately fifteen to twenty minutes later. Neither Shipman’s desk nor her office were kept locked.

Melody Gilmore, the Liberty County District Clerk, testified she took the first bench warrant to Shipman and Shipman stamped it. She then made the necessary certified copies and sealed them. Subsequently, Harrelson brought her another bench warrant, it already bore Judge Zbranek’s stamped signature. Gilmore sealed it and asked Susie Chessher to make certified copies. Gilmore answered a phone call and when she finished, found Harrelson had left with the originals and copies. Gilmore testified they do not file mark bench warrants until they come back served.

The excerpts of Harrelson’s grand jury testimony introduced by the State reveal that Harrelson testified she took the application and the second bench warrant to the District Clerk’s office and Susie Chessher file marked it. It was given back to her to take to Judge Zbranek’s office. Harrelson testified she left it in Judge Zbranek’s office on his desk, no one was there. She went back a couple of hours later and it was on the desk, ready to be picked up. Harrelson checked for a signature; it was stamped so she picked it up and took it out.

Harrelson’s possession of the second bench warrant after it had been stamped with Judge Zbranek’s signature is evidence from which the jury might infer she stamped the bench warrant herself. See Palmer v. State, 735 S.W.2d 696, 698 (Tex.App.-Fort Worth 1987, no pet.). Accordingly, we find the evidence is legally sufficient to support Harrelson’s conviction for forgery. Issue two is overruled.

Tampering with a Governmental Record

The final charges leveled against Harrelson were tampering with a governmental record. She was indicted for and convicted of two separate offenses, one for each bench warrant. Issue one asserts Harrelson did not tamper with a government document as a matter of law. The law in effect at the time of the offense provided:

Sec. 7.10. TAMPERING WITH GOVERNMENTAL RECORD, (a) A person commits

an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(5) makes, presents, or uses a governmental record with knowledge of its falsity ...

Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3664 (current version at Tex. Pen.Code Ann. § 37.10 (Vernon Supp.2005)).

The two indictments alleged that Har-relson did, with intent to defraud or harm another, knowingly make a false entry in a governmental record. The records at issue in the first indictment are the application for and/or the second bench warrant. It is asserted the following entries were false:

1. on November 8, 2002, there was a case pending on the docket of the 75th Judicial District Court entitled In the Interest of John Alexander McDowell Harrelson, Cause No. 54,-144;
2. a necessity existed for the issuance of a bench warrant for Jeffrey Paul Hale in Cause No. 54,144 in the 75th Judicial District Court of Liberty County, Texas;
3. a necessity existed for Jeffrey Paul Hale to appear as a witness in Cause No. 54,144 in the 75th Judicial District Court of Liberty County, Texas;
4. the aforementioned bench warrant was stamped and/or authorized by Judge J.C. Zbranek of the 75th Judicial District Court of Liberty County, Texas;

It is then asserted the records were made, presented, and/or used with knowledge of their falsity and with intent they be taken as genuine governmental records.

In the second indictment, the records are the application for and/or the first bench warrant. It is alleged the same entries set forth above in 1-3 are false; it is then asserted the records were made, presented, and/or used with knowledge of their falsity and with intent they be taken as genuine governmental records.

Pursuant to our discussion above, there is evidence in the record to support a finding that Harrelson stamped the second bench warrant with Judge Zbranek’s signature and without authorization. This evidence is legally sufficient to support the conviction under the first indictment for tampering with a governmental record. Issue one is overruled in part.

As regards the conviction pursuant to the second indictment, however, we find the evidence to be insufficient. Melody Gilmore testified there was no motion to modify pending on the docket of the 75th Judicial District Court. However, Mark Beausoleil testified that he thought he had filed the case and told Richard Burroughs a motion had been filed. Burroughs testified it was his understanding a motion had been filed. Burroughs stated, “it was deemed important” for Hale to testify and that Hale “had some pertinent testimony” to offer. According to Burroughs, Harrel-son’s ex-husband was expected to file a counterclaim for custody and Hale’s testimony would be relevant to that issue. It was his opinion Hale was a relevant witness. Burroughs testified the application for the bench warrant was prepared by Harrelson at his direction and he believed the statements in the application to be true. Harrelson’s preparation of the application does not alter its nature as an instrument filed by her attorney, albeit on her behalf. The entries in the application for the first bench warrant, true or false, were not Harrelson’s, but her attorney’s. Accordingly, we find the evidence does not support the conviction under the second indictment for tampering with a governmental record and sustain issue one in part. Accordingly, the judgment of the trial court in Cause No. 24,518 must be reversed and an order of acquittal entered. See Tex.R.App. P. 43.2(c); Burks, 437 U.S. at 11, 98 S.Ct. 2141; Greene, 437 U.S. at 24, 98 S.Ct. 2151.

■CHARGE OF THE COURT

Harrelson’s fourth issue argues the trial court, erred in failing to determine whether the applications for bench warrant and the bench warrants were governmental records as a matter of law. Similarly, in issue five, Harrelson claims the trial court erred in submitting to the jury the issue of whether Harrelson was guilty of tampering with a governmental record absent a finding that the documents were in fact governmental records prior to being filed.

In both cases, the charge of the court defined “governmental record” for the jury as, “anything belonging to or received by or kept by government for information, including a court record.” Court record was defined as “a ... warrant ... issued by a court of this state.” These definitions are consistent with the Penal Code. See Act of May 26, 1999, 76th Leg., R.S., ch. 659, § 1, 1999 Tex. Gen Laws 3229 (current version at Tex. Pen.Code Ann. § 37.01(2)(A) (Vernon Supp.2004)). The record does not contain any objections lodged to the court’s charge. Accordingly, nothing is presented for our review. See Tex.R.App. P. 33.1(a). Issues four and five are overruled.

Issue six claims the trial court erred by submitting to the jury the question of whether the actions taken by Harrelson were made while she was acting in her official capacity. Due to our disposition of issue three, it is unnecessary to address this contention.

ADMISSION OF EVIDENCE

Harrelson next argues the trial court erred in allowing into evidence her grand jury testimony in violation of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 20.02 (Vernon Supp.2004). The record reflects defense counsel agreed to the admission of the testimony. Accordingly, any error has not been preserved. See Tex.R.App. P. 33.1(a). Issue seven is overruled.

Harrelson further claims the trial court erred by admitting into evidence the highly inflammatory, irrelevant, and unfairly prejudicial information regarding Jeffrey Paul Hale, in violation of Rules 401 and 402. See Tex.R. Evid. 401, 402. The record does not reflect any objections were made to the complained-of evidence. Again, the issue has not been preserved for our review. See Tex.R.App. P. 33.1(a). Issue eight is overruled.

In her ninth issue, Harrelson contends the trial court erred by permitting the State to introduce the testimony of Tarrant County Assistant District Attorney Mary Butler because the testimony was extremely inflammatory and its probative value was substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. The record shows no objection was made to Butler’s testimony. Nothing is presented for our review. See Tex.R.App. P. 33.1(a). Issue nine is overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

Harrelson claims in issue ten that her Sixth Amendment right to effective assistance of counsel was violated. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Harrelson’s brief enumerates thirty-five alleged deficiencies in counsel’s performance. We first address those pertaining to the evidence concerning Hale’s conviction (numbered 2, 3, 8, and 25-31).

Counsel on appeal complains trial counsel failed to timely prepare and file a motion- in limine regarding the State’s intent to use the information related to Hale’s conviction. The record reflects that prior to beginning voir dire, defense counsel made an oral motion in limine requesting the State, prior to mentioning anything regarding Hale’s situation (other than what he had been convicted of and his sentence) to bring it up before the court to determine relevancy. The State responded that what he wanted to mention during opening argument was what Hale had been convicted of, his sentences, and where he was convicted, which would not come up during voir dire. Defense counsel said, “That’s fine.” The trial court verified, “That’s okay?” Defense counsel again said, “That’s fine,” and the State agreed, “None of the details of the offense.” The trial court noted, ‘We have an agreement then of how you’re going to follow the Motion in Limine and no objection.” Defense counsel replied, “That’s fíne.”

Although the more prudent practice would be to file a written motion,- it would not have preserved error. Defense counsel would still have been required to object to the admission of the evidence and the remarks by the State. It is clear from the above exchange that defense counsel agreed to admitting the complained-of evidence. A written motion in limine regarding the details of the offenses would not have corrected that alleged error. It is that we address — -whether defense counsel erred in allowing that evidence to be admitted and in failing to object to the State’s remarks related to Hale’s conviction.

At the close of its questioning during voir dire, the State told the panel, “I want to talk about a class of criminals, convicted child molesters. As far as the security of those individuals, I want you to tell me whether or not it should be low, minimal security, medium security or high security insofar as their incarceration.” The State asked:

If you think it should be low security, raise your card. (No response).
If you think it should be medium security, raise your card. (No response).
If you think it should be high security, raise your card. (Panel cards raise). Thank you.

In opening argument the State informed the jury that in March of 2002, Hale was facing trial in Tarrant County, Texas on five counts. The State elaborated as follows:

One inditment contained two counts of aggravated sexual assault of a child under the age of 14. That indictment, same indictment, also contained a count of indecency with a child by contact. The other indictment pending against Jeffrey Paul Hale alleged two counts of indecency with a child by contact. Two indictments, five total counts, serious charges.
... Jeffrey Paul Hale was convicted on all five counts by a Tarrant County jury. And in early April of 2002, he was sentenced by Judge Joe Drago in Tar-rant County, Texas, Criminal District Court No. 4, if I’m not mistaken, and he was sentenced on the two aggravated sexual assault of a child under the age of 14 years. Those two counts, he was sentenced to 40 years in prison for each of those counts. It’ll be three indecency of a child by contact charges, he was sentenced to 10 years in prison on each of those. Three 10 year sentences, two 40 year sentences, but they were all tried in the same trial, so the law necessitated that they run together or concurrently. So, in essence, he was serving a sentence of one 40 year sentence because they all run together, they run at the same time.

Further on, the State said, “... on November 13th, 2002, when Odell McDuffie, ... went to the Mark Stiles Unit to pick up a convicted child molester, it wasn’t just Odell in the car.” And again, “J.D. went and the defendant went along again in a county patrol car ... to pick up her son, a convicted child molester.” The State’s first witness was Mary Butler, an Assistant District Attorney for Tarrant County, Texas. During her testimony, State’s Exhibit No. 1, a pen packet, was admitted into evidence. It contains the judgment, sentence, and documents from the Texas penitentiary system, including an identifying photograph, regarding a case Butler prosecuted against Hale in March and April of 2002. The packet was exhibited to the jury, page by page. Butler identified the second page as a photograph of Hale. The next page was the first page of the judgment on a guilty verdict, showing Hale was convicted of aggravated sexual assault of a child under 14 and indecency with a child by contact. It further reflects Hale was sentenced to forty years on the first count, and ten years on the second. The following page shows the judgment was signed by Judge Drago, III, on April 18, 2002. The next page was a judgment on a jury verdict of guilty on two counts of indecency with a child for which Hale received a ten-year sentence. Following it was the last page, again with Judge Dra-go’s signature. The State went back to the photograph and asked Butler about the ID Number. Butler testified that is the tracking number assigned to Hale to identify him in the system. It is a unique number that follows him to any unit to which he may be sent. The State then introduced another photograph into evidence as State’s Exhibit No. 2. Counsel objected on relevancy grounds. The State responded, “this shows an individual before they get that haircut, before they get the haircut they get in the prison system ...” The trial court admitted the photograph, stating, “I don’t see anything prejudicial about it.” Butler testified the photograph shows Hale as he appeared at his initial “book-in.” The photograph was exhibited to the jury. The State asked Butler if she knew Sharon Dulany. Butler identified Dulany as the parent of a victim in Hale’s case.

Defense counsel cross-examined Butler asking, “I see it says on the first judgment, counts one and two with a single sentence. Was that a single verdict on counts one and two as one conviction or are those separate counts where each— was he found guilty of two counts there or just two pleadings of committing the same offense?” Butler answered there were two separate counts. Defense counsel asked if the second was the same, and Butler said, “correct.”

The State’s second witness was Sharon Dulany. Dulany testified she met Hale once at her ex-husband’s house, and that was the only time, “until the trial.” The trial was in Fort Worth, Texas, and Butler was involved. Dulany was asked by the State, “would you tell the Court and jury what [your child’s] connection with the trial was?” Dulany answered, “He was a victim at the trial.” In November 2002, Dulany received notice Hale was being transferred to Liberty County on a bench warrant. Dulany then made phone calls to Victim’s Crime Assistance, the Sheriffs Department, and the District Clerk’s office.

In a bench conference prior to Butler being called to testify, the State informed the trial court he wished to call Dulany, the mother of one of the victims. Defense counsel stated, “I don’t know if it’s relevant. I think if she said she received the notice, I think that resolves any issues there are and he doesn’t need to go into the allegations beyond what he’s told you already.” The trial court responded, ‘Well, surely you don’t want to go into the nature of the allegations.” Defense counsel offered to withdraw the objection if Dulany referred to “her child,” as opposed to “her son.” The State agreed. However, defense counsel made no objection when either the State or Dulany referred to the child as male.

On direct examination, State’s witness Mark Beausoleil testified, “I knew what was on Ms. Harrelson’s mind and coming out of her mouth, because what she was really concerned with at the time after the election was her son’s pending criminal case, her son Jeff Hale’s pending criminal case up in Tarrant County, and that criminal case was sexual charges that he was charged with.”

On redirect examination, the State questioned John Davis regarding prior practice of transporting prisoners. In reference to an inmate taken to the hospital to visit a dying parent, the State asked, “And was he a convicted child molester?” Davis did not recall and the State then asked, “Do you know if he was doing 40 years in prison?” The State further questioned Davis as to whether it was policy to have more than one person for security when taking a convict out of prison. Davis said it depended on the circumstances. The State then enquired, “So, if it’s a convicted murderer or a convicted sex offender, is it policy to have added security.” Davis said each case could be different. The State continued, “Well, what about somebody doing 40 years in prison for five counts of child molestation? Would you think that person would need added security?” Before Davis completed his answer, the State pressed on, “What about the policy? What does it say for a child molester doing 40 years for five counts of child molestation?”

At the beginning of his closing argument, the State made the following remarks:

I think the first witness that testified in this trial was a lot of consequence. It was Mary Butler, Assistant DA from Tarrant County, Texas. She tried Jeffrey Paul Hale on two counts of aggravated sexual assault of a child under age 14, three counts of indecency with a child, and he was convicted by a jury. Now, that’s very important in this case because that’s what Jeffrey Paul Hale received. That was the time he was doing when he did this gallivanting around Liberty County.
That is Jeffrey Paul Hale. That is Jeffrey Paul Hale. And that is Jeffrey Paul Hale. All 12 of you, when I selected a jury in this case, I asked you, I asked everybody out here, how do you believe convicted child molesters should be treated? Low security, medium security, and high security. And I know you 12 raised your hand because everybody in the room raised their hand. Don’t forget Jeffrey Paul Hale. Don’t forget that person, that child molester is who we’re talking about that was treated as if he had written a 50 cent hot check. That’s important in this case.
Next, Sharon Dulany testified, mother of the victim of Hale’s molestation. She received notice from TDCJ and she began to notify people and notified my office and started the ball rolling. Ask yourself. That’s a witness of great consequence because what if Sharon Dulany would have never contacted us? I submit to you that Jeffrey Paul Hale would still be sitting in Liberty County Jail at 33 bucks a day on our tab.

Further on, the State discussed the testimony of Judge Zbranek. The State recounted that after the facts were known, Harrelson asked, “Can he stay? ... And he said, no. He said, what you ought to say when you render a verdict in this case, that Jeffrey Paul Hale earned his 40 years in prison and that’s where he needs to serve his time.” Defense counsel did object, but the trial court overruled it.

The record does not reveal defense counsel’s reasons for agreeing to admit the evidence, but it clearly was intentional. Given the presumption of effectiveness and the great deference we give to decisions made by defense counsel, we find the present record does not affirmatively demonstrate counsel’s performance was deficient. See Costilla v. State 84 S.W.3d 361, 365 (Tex.App.-Beaumont 2002), aff'd, 146 S.W.3d 213 (Tex.Crim.App.2004).

We now turn to the other deficiencies alleged by Harrelson and address each as numbered in her brief.

1. Failing to request a change of venue because of substantial pre-trial publicity that unfairly prejudiced defendant and denied her a fair trial;

The record reflects defense counsel questioned the jury panel regarding pretrial publicity. No one on the panel, except Mr. Kalbitz, indicated they had already formed an opinion. The record reflects Kalbitz did not serve on the jury. The record does not reflect whether the publicity was pervasie, prejudicial, or inflammatory. See Bell v. State, 938 S.W.2d 35, 46 (Tex.Crim.App.1996). Har-relson has not demonstrated an actual, identifiable prejudice on the part of members of her jury which was attributable to the publicity. See Moore v. State, 935 S.W.2d 124, 129 (Tex.Crim.App.1996).

4. Failing to effectively disqualify or rehabilitate biased jurors or request to strike any juror for cause, even after at least three jurors stated they could not be fair and impartial during voir dire;

Harrelson’s brief does not identify the three jurors but the references to the record indicate they are Kalbitz, Alberts and Rayon, none of whom served on the jury.

5. Failing to object to the manner in which the State’s voir dire unfairly prejudiced the jury against defendant;

Harrelson’s brief refers this court to thirteen pages of the reporter’s record of voir dire wherein the State discussed the elements of the various offenses as alleged in the indictments and the burden of proof. Harrelson makes no argument and cites no authority that such a discussion is objectionable. See Tex.R.App. P. 38.1(h).

6. Failing to timely object to misrepresentations of law and fact that inflamed and unfairly prejudiced the jury against defendant;

Harrelson’s brief does not identify any misrepresentations. See Tex.R.App. P. 38.1(h).

7.Making statements against defendant’s interest to the jury;

Harrelson’s brief refers to eleven separate pages in the reporter’s record but does not identify any statements or explain how they were against Harrelson’s interest. See Tex.R.App. P. 38.1(h).

9. Admitting that he confused the jury and himself during voir dire;

In reference to the bench warrants, defense counsel said, “I, myself, get confused a bit as between number one and number two.” Harrelson’s brief makes no argument as to how this statement prejudiced the defense.

10. Admitting to the jury that he had never seen a jury charge like the one in this case and had never had a case this complex;

Taken in context, defense counsel’s statement could have been trial strategy to identify with the jury and blame the State for the complexity of the allegations. We cannot say such a strategy was unreasonable.

11. Discussing the probability of defendant testifying;

During voir dire, defense counsel informed the jury Harrelson might not testify in the context of explaining that the State bore the burden of proof and Harrel-son did not have to testify to prove her innocence. Harrelson’s brief makes no argument as to why this was unreasonable trial strategy.

12. Admitting to the jury that he did not know what he was up against from the prosecution;

This statement followed that complained of above, when defense counsel said he did not know whether Harrelson would testify. Counsel then stated, “But, you know, since I haven’t heard the State’s case, I don’t really know exactly what I’m up against. I have a pretty good idea.... I don’t know how much credible, believable evidence they’re actually going to produce before this jury.” Harrelson’s brief does not explain how this statement prejudiced the defense.

13. Failing to object to the appearance of judicial misconduct, including a one-hour ex parte communication between the trial judge and a material witness in the case;

The record reflects that after a lunch break on the third day of trial, the trial judge asked the lawyers to approach the bench and informed them that he was having lunch with his wife when Judge Don Taylor joined them. According to the trial judge, “We visited, but not about this case.” Judge Taylor testified the next day. We have no record on appeal explaining the reasons for defense counsel’s decision not to object or move for a mistrial. Such a record is usually developed in a motion for new trial hearing or on writ of habeas corpus. See Redmond v. State, 30 S.W.3d 692, 698-99 (Tex.App.-Beaumont 2000, pet. ref'd). Absent evidence in the record of counsel’s thought processes and trial strategy, the presumption of effectiveness cannot ordinarily be overcome. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994).

14. Failing to timely object to prosecutorial misconduct, including the prosecutor’s reference to the defendant’s election to have the judge sentence her; the prosecutor’s reading of the indictments during voir dire; and the prosecutor’s introduction of the defendant’s grand jury testimony;

Regarding the first two complaints, Harrelson’s brief fails to cite any authority for her contention the State’s remarks were objectionable. As to the third, again, the record is devoid of any evidence as to counsel’s trial strategy in permitting the introduction of the grand jury testimony. It was deliberate and absent any evidence regarding strategy, we find the presumption of effectiveness has not been overcome.

15. Failing to timely address prosecu-torial vindictiveness in prosecuting the lawful acts of defendant as evidenced from the record as a whole;

Harrelson’s brief fails to refer to the record or cite any authority on this point. See Tex.R.App. P. 38.1(h).

16. Failing to properly prepare for defendant’s sentencing hearing wherein counsel represented to the court twenty minutes before the hearing that he had not seen the PSI report on defendant;

There is no record reference for the PSI in Harrelson’s brief. Harrelson does not demonstrate, or even argue, that the result of the punishment hearing would have been different had counsel reviewed the report.

17. Failing to timely object to the prosecutor’s misrepresentation to the jury that the conduct of defendant was committed in her official capacity as Liberty County Treasurer, that she misused county funds, and that defendant received undue benefits;

Harrelson’s brief refers this court to the State’s closing argument. The State is entitled to argue to the jury that the facts adduced- during trial prove the elements of the alleged offense.

18. , Failing to object to prosecutor’s efforts to predispose the jury towards conviction during voir dire;

Harrelson’s brief refers this court to thirteen pages of the reporter’s record of voir dire wherein the State discussed the elements of the various offenses as alleged in the indictments and the burden of proof. Harrelson makes no argument and cites no authority that such a discussion predisposed the jury to convict. See Tex.R.App. P. 38.1(h).

19. Failing to object to the prosecutor’s misrepresentations to the jury that the mere act of filing a document, which may contain a false or erroneous statement, is illegal when that document is not signed by the person filing it, but by a duly licensed and practicing attorney;
20. Failing to object to the prosecutor’s misrepresentation that at the time the applications were prepared by defendant, they were governmental records;
21. Failing to object to the prosecutor’s misrepresentation to the jury that the defendant made a false entry into a governmental document, when according to the provisions of section 37.01 of the Texas Penal Code, the documents did not meet the definition of a governmental record at the time the entries were made;

As noted in number seventeen above, the State is entitled to argue to the jury that the facts adduced during trial prove the elements of the alleged offense.

22. Admitting to the jury that he is flustered and unsure about how the burden of proof shifts during the trial;
23. Seeking assistance from the prosecutor during voir dire regarding the burden of proof;

These complaints concern defense counsel’s remarks during voir dire on the defense of mistake of fact. Immediately following these statements, defense counsel said, “Okay. I was right.” He then continued to explain the defense. Harrelson does not explain how these statements prejudiced her defense.

24.Failing to object to evidence that was unfairly prejudicial, including State’s Exhibit 33 that contained the large checks paid to CCA of which it is alleged that a small percentage of the funds were paid to Liberty County Sheriffs deputies for transporting Hale;

Harrelson’s brief fails to include any argument or authority for excluding that evidence.

32. Waiving defendant’s attorney-client privilege as to Beausoleil;

Harrelson’s brief does not identify any prejudice or harm resulting from Beauso-leil’s testimony. As noted above, Beauso-leil testified as to the apparent necessity of having Hale appear as a witness. Therefore we cannot say defense counsel’s decision constituted unreasonable trial strategy-

33. Failing to object to the testimony of Ranger Huff and his admission of defendant’s grand jury testimony and conduct by the State;
34. Admitting into evidence defendant’s grand jury testimony and referring to her testimony in his arguments when she did not testify.

As noted above, the record is devoid of any evidence as to counsel’s trial strategy in permitting the introduction of the grand jury testimony.

35. Failing to timely object to the admission of checks paid to Liberty County Sheriffs deputies.

Harrelson’s brief does not identify any basis for such an objection.

In this case, as in many before it, the record on direct appeal is insufficient to show that trial counsel’s representation was so deficient as to overcome the presumption that counsel’s conduct was reasonable and professional. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). See also Johnson v. State, 68 S.W.3d 644, 655 (Tex.Crim.App.2002). Accordingly, issue ten is overruled.

CONDUCT OF PROSECUTOR

Harrelson’s eleventh and twelfth issues assert the State engaged in prosecu-torial misconduct during the trial and demonstrated prosecutorial vindictiveness in the preparation and presentation of the trial. “To preserve error in cases of pros-ecutorial misconduct, the defendant must (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial. See Tex.R.App. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996).” Morrison v. State, 132 S.W.3d 37, 49 (Tex.App.-Houston [14th Dist.] 2004, pet. refd). The record does not demonstrate Harrelson objected or moved for a mistrial when the conduct in question occurred. Accordingly, any error has not been preserved. Issues eleven and twelve are overruled.

CONDUCT OF TRIAL JUDGE

Issue thirteen alleges the trial court abused his discretion and engaged in acts constituting judicial misconduct during the trial. Nothing in the record shows Harrleson objected, requested the- judge instruct the jury, or moved for a mistrial when the conduct in question took place. Thus nothing was preserved for review. See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex.App.-Beaumont 1996, no pet.) (citing Penry v. State, 903 S.W.2d 715, 764 (Tex.Crim.App.1995)). Issue thirteen is overruled.

SELECTIVE PROSECUTION

Issue fourteen charges the State engaged in selective prosecution by bringing these charges against Harrelson. “To support a defense of selective or discriminatory prosecution, a defendant must make a prima facie showing -that (1) although others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) the government’s discriminatory selection of him has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his constitutional rights.” Hall v. State, 137 S.W.3d 847, 855 (Tex.App.Houston [1st Dist.] 2004, pet. ref'd) (citing Gawlik v. State, 608 S.W.2d 671, 673 (Tex.Crim.App. [Panel Op.] 1980)). The record does not establish Harrelson made any effort at trial to establish the alleged discriminatory prosecution. Id. Nothing is presented for review. See Tex.R.App. P. 33.1. Issue fourteen is overruled.

MOTION FOR NEW TRIAL

Harrelson’s final issue claims the trial court erred in overruling her motion for new trial. Eight specific complaints are raised. The first concerns the denial of Harrelson’s motion to substitute counsel. The motion was filed October 22, the same day the sentencing hearing was scheduled and trial court denied the motion. Harrelson’s brief makes no argument as to any harm or prejudice resulting from the trial court’s decision. The same is true for the complaint that defense counsel had not read the pre-sentence investigation report. Accordingly, neither establishes the trial court abused its discretion in overruling the motion for new trial. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). Regarding the complaints numbered 2-8, the record does not reflect those were preserved for our review. See Tex.R.App. P. 83.1. Issue fifteen is overruled.

CONCLUSION

Having found the evidence legally insufficient to sustain the conviction for abuse of official capacity and one charge of tampering with a governmental record, the trial court’s judgments in Cause Nos. 24,-514 and 24,518 are reversed and an order of acquittal entered. The convictions for forgery and one charge of tampering with a governmental record reflected in the trial court’s judgments in Cause Nos. 24,515 and 24,516 are affirmed.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

      . The offense is therefore a Class A misdemeanor. See Tex. Pen.Code Ann. § 39.02(b)(3) (Vernon 2003).

      . Linda Leonard took office as the Liberty County Treasurer on December 31, 2002.

      . For example, Leonard’s signing of the second check would not constitute an abuse of official capacity even though these facts were presumably known to her.

      . It is therefore unnecessary to address Har-relson's various arguments concerning whether the application for a bench warrant constitutes a governmental record.

      . A hearing on the motion was scheduled but before it was held, the trial court overruled the motion. We are not presented with the issue of whether the trial court erred in failing to conduct the hearing.


source: Caselaw Access Project

author: CATHERINE STONE, Justice.

license: Public Domain

text:
    Samuel J. LESTER, Appellant, v. CAPITAL INDUSTRIES, INC., Appellee.
    No. 04-04-00310-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 10, 2004.

      Andrew E. Toscano, Gene Toscano, Inc., San Antonio, for appellant.
    Steven B. Treu, Langley & Banack, Inc., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.

      . We note that Excamate, Ltd. was included in the Notice of Appeal due to a clerical error. Excamate, Ltd. is not a party to this appeal.

   OPINION

Opinion by

CATHERINE STONE, Justice.

Appellant, Samuel J. Lester, brings this restricted appeal from a default summary judgment granted in favor of appellee Capital Industries, Inc. Lester raises three issues on appeal: 1) proper notice of the summary judgment hearing was not given to his attorney in accordance with Rules 8, 21a, and 166a of the Texas Rules of Civil Procedure; 2) Capital violated the judicial rationale behind the doctrine of collateral estoppel by filing a second motion for summary judgment; and 3) the granting of summary judgment was improper because Capital failed to meet its burden of proving there were no genuine issues of material fact. Because we find proper notice was not given in accordance with Rules 8, 21a, and 166a of the Texas Rules of Civil Procedure, we reverse and remand.

Factual and Procedural Background

In July 2000, Excamate, Ltd. entered into a written agreement with Capital whereby it would acquire equipment to conduct excavation at a local elementary school. The written agreement provided that Excamate would make monthly payments for twenty-nine months. Shortly after delivery, Excamate notified Capital that the equipment was not working properly, and Capital made several attempts to repair the equipment. After four months, the malfunctions continued, and Excamate discontinued its monthly payments. Capital continued sending monthly invoices to Excamate and retained counsel. Samuel Lester, the general manager of Excamate, sent a letter to Capital’s attorney and negotiated on behalf of Excamate to have the equipment returned to Capital in exchange for return of all monies paid to Capital. Thereafter, Capital sued Excamate and Lester jointly and severally for breach of contract. Capital alleged Lester had held himself out as the general partner of Exca-mate and was therefore responsible for its debts.

In its original petition, Capital asserted that Excamate had entered into an agreement to purchase the equipment. In defense, Excamate denied it was ever the company’s intent to purchase the equipment. Excamate stated its previous business dealings with Capital had been to lease equipment with the option to purchase. Lester denied ever holding himself out as the general partner of Excamate.

On April 2, 2002, Capital mailed copies of its first motion for summary judgment to Lester, Excamate, and their attorney, Andrew Toscano. Toscano filed a response to the motion, along with Lester’s affidavit. In the affidavit, Lester described past business dealings between Excamate and Capital, detailed the nature of his management position with Exea-mate, and denied he had ever represented himself as the general partner of Exca-mate. Capital’s motion for summary judgment was denied.

On January 31, 2003, Toscano filed a motion to withdraw as Excamate’s counsel, which was granted at a hearing on February 7, 2003. Toscano continued to represent Lester.

On March 14, 2003, Capital filed its second motion for summary judgment before a different judge. The second motion was identical to the first, except it recited that both defendants were pro se. Capital mailed its second motion for summary judgment to Excamate and Lester, but failed to send notice of the motion or hearing to Lester’s attorney. Neither Exca-mate nor Lester filed a response to the summary judgment, and neither appeared at the April 10, 2003 hearing. The trial court signed a judgment on April 10, 2003, awarding Capital $13,398.02 in damages, plus attorney’s fees and pre- and post-judgment interest.

Standard of Review

A restricted appeal: 1) must be brought within six months of the date of judgment; 2) by a party to the suit; 3) who did not participate in the hearing that resulted in the judgment complained of; and 4) the error must be apparent from the face of the record. Tex.R.App. P. 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999) (per curiam). We use the same scope of review for a restricted appeal as an ordinary appeal, except that error must appear on the face of the record, which for purposes of a restricted appeal consists of all documents on file. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam). It is undisputed that Lester satisfied the first three elements of a restricted appeal. We therefore consider only whether he has shown error on the face of the record.

Notice of the Summary Judgment Motion and Hearing

The motion for summary judgment and any supporting affidavits must be served on the opposing party at least twenty-one days before the hearing. Tex.R. Civ. P. 166a(c). Proper notice to the non-movant is a prerequisite to summary judgment. Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex.App.-San Antonio 1988, no writ). Lester’s principal claim on appeal is that Capital’s failure to send notice of the summary judgment hearing to his attorney violated Rules 8 and 21a of the Texas Rules of Civil Procedure.

Two courts of appeals have considered whether the Texas Rules of Civil Procedure require notice of a summary judgment hearing to be served on a party’s attorney. The Amarillo Court of Appeals concluded that notice of the summary judgment hearing need not be served on a party’s attorney. Krchnak v. Fulton, 759 S.W.2d 524, 528 (Tex.App.-Amarillo 1988, writ denied). The court examined Rule 21a and determined, “While the sending of such a notice directly to the party without a copy to his attorney of record should not be encouraged, and indeed, it would seem proper that the rule require this, it does not do so.” Id. The Corpus Christi Court of Appeals recognized the same principle in Trevino v. Hidalgo Publishing Co., but held that the sole act of serving the party rather than his attorney is not sufficient in every case for notice to be effective. Trevino v. Hidalgo Publishing Co., 805 S.W.2d 862, 863 (Tex.App.-Corpus Christi 1991, no writ). The Trevino court ultimately upheld the default summary judgment because the plaintiff could not show that the defendant’s failure to deliver notice of the hearing to the plaintiffs attorney was injurious or prejudicial. The court concluded that any allegations of improper notice were precluded because plaintiffs attorney had actual knowledge of the hearing, declared to the court he was ready to proceed, and then simply failed to appear. Id.

Most recently, the Corpus Christi court held that when a party is represented by counsel who has made an appearance, Rules 8 and 21a require that all communications be sent to the party’s attorney. Morin v. Boecker, 122 S.W.3d 911, 914 (Tex.App.-Corpus Christi 2003, no pet.). The court reasoned that Rule 8 would be rendered meaningless, and its underlying policies subverted, if all communications could be served on parties rather than their attorneys. Id. The court explained:

It would be unfair and contrary to the spirit of rule 8 to hold an attorney responsible for communications that he or she is not entitled to receive. It would also invite abuse by opposing counsel, especially when the party represented is illiterate or otherwise unfamiliar with the dispositive exigencies of civil litigation. It makes absolutely no sense, for example, that the party rather than the attorney receive notice of a hearing on a crucial, time-sensitive motion, such as a motion to transfer venue or a motion for summary judgment. Most likely, a party will not understand the importance of getting the information to his attorney promptly or will expect that his attorney received notice directly. Any delay could result in a severe disadvantage to the attorney and adversely affect counsel’s representation of the party. Id. (Emphasis added).

We agree with this conclusion. Once Lester’s attorney made an appearance in the case, all communications from opposing counsel with respect to the suit should have been sent to him, including notice of the summary judgment motion and hearing. Failure to send notice violated Rules 8, 21a, and 166a(c) of the Texas Rules of Civil Procedure.

It is apparent from the face of the record that Lester was represented by counsel on March 14, 2003, the date Capital filed its second motion for summary judgment. Lester’s attorney had previously made an appearance in the case, and did not receive notice of the second summary judgment motion or hearing. This lack of notice was both injurious and prejudicial because Lester’s attorney could not file a response to Capital’s second motion for summary judgment. Lester’s first issue is sustained.

Conclusion

Because we sustain Lester’s first issue regarding notice, we need not address his other issues. Tex.R.App. P. 47.1. We reverse the trial court’s judgment and remand the cause to the trial court for proceedings consistent with this opinion.

      . Rule 8 provides in pertinent part: "On the occasion of a party's first appearance through counsel, the attorney whose signature first appears on the initial pleadings for any party shall be the attorney in charge, unless another attorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party. Communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.” Tex.R. Civ. P. 8 (emphasis added).
      Rule 21a provides: “Eveiy notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21a, other than the citation to be served upon the filing of the cause of action and except as otherwise expressly provided in these mies, may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record, as the case may be.” Tex.R. Civ P. 21a (emphasis added).


author: SARAH B. DUNCAN, Justice.

text:
    In re Stephanie M. GARZA.
    No. 04-04-00185-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 10, 2004.
    Rehearing Overruled Jan. 3, 2005.

      Original Mandamus, Prohibition, and Injunction Proceeding.

    Per A. Hardy, Law Office of Per A. Hardy, James E. Hoffman, San Antonio, for appellant.
    Jo Chris G. Lopez, Shaddox, Compere, Walraven & Goode, P.C., Wade B. Shelton, Shelton & Valadez, P.C., Michael W. Jackson, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice.

      . This original proceeding arises out of a temporary order signed by the Honorable John Specia, the presiding judge in the 225th Judicial District Court, Bexar County, Texas, in Cause No.2002-CI-01202, styled In the Matter of the Marriage of Xavier H. Garza and Stephanie M. Garza.

   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Stephanie Garza seeks a writ of mandamus to compel the trial court to vacate its temporary order, which requires Stephanie’s former husband Xavier to deposit the payments he owes to Stephanie for her equity interest in their community homestead into the registry of the court; in the event Stephanie’s appeal of the divorce decree is ultimately unsuccessful, awards Xavier appellate attorney’s fees; and orders Xavier’s appellate attorney’s fees to be paid out of the funds in the court’s registry. We conditionally grant the petition insofar as it seeks a writ of mandamus to compel the trial court to vacate that part of its order requiring the contingent appellate attorney’s fees to be paid out of the funds in the court’s registry. This aspect of the order, in effect, impermissi-bly orders Xavier’s appellate attorney’s fees to be paid out of Stephanie’s exempt equity interest in the community homestead and modifies the property division in the divorce decree after the court’s plenary power had expired.

Factual and ProceduRal Background

The final decree in Xavier and Stephanie Garza’s divorce and child custody case awards them joint managing conservator-ship of their two children, with Xavier having the exclusive right to determine their residence and Stephanie being responsible for child support payments. The decree also awards Xavier the family homestead, orders Stephanie to convey her interest in the property to Xavier, and orders Xavier to pay Stephanie $73,871 for her equity interest in the property in sixty monthly installments. Finally, the decree orders each party to bear his or her own attorney’s fees and costs. Stephanie appealed. While the appeal was pending, both parties moved for temporary orders pending appeal. See Tex. FamlCode Ajjn. § 6.709 (Vernon 1998) (orders for preservation of property and protection of parties); id. § 109.001 (Vernon 2002) (orders for protection and welfare of children). After a hearing, on December 18, 2003, the trial court signed an order finding that the “temporary orders are necessary for the protection of the parties and the children and for preservation of the property pending appeal” and denying Stephanie’s motion and granting Xavier’s. The December 18, 2003 order requires Xavier to deposit the payments he owes to Stephanie for her equity interest in their homestead into the registry of the court “until the appeal is resolved and disposition of the funds on deposit is determined by final judgment” and, if Stephanie’s appeal is ultimately unsuccessful, awards Xavier appellate attorney’s fees of $25,000 from the funds deposited into with the court’s registry. To challenge the trial court’s order, Stephanie filed this original proceeding.

Prerequisites for Mandamus Relief

A writ of mandamus will issue only to correct a clear abuse of discretion for which the relator lacks an adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). “With respect to resolution of factual issues,” “[t]he relator must establish that the trial court could reasonably have reached only one decision.” Walker, 827 S.W.2d at 840. However, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Id.

Mandamus is an appropriate means to challenge temporary orders pending appeal. See Tex. Fam.Code Ann. § 109.001(c) (temporary orders for the protection of the children pending appeal may not be appealed); In re Boyd, 34 S.W.3d 708, 711 (Tex.App.-Fort Worth 2000, orig. proceeding) (mandamus appropriate to challenge temporary order for protection of parties and preservation of property pending appeal); Johnson v. Johnson, 948 S.W.2d 835, 838 (Tex.App.-San Antonio 1997, writ denied) (temporary order pending appeal awarding appellate attorney’s fees should be attacked in a petition for a writ of mandamus).

Equity Payments

Stephanie first argues the trial court abused its discretion in ordering Xavier to deposit the payments due her for her equity interest in the marital homestead into the registry of the court. We disagree.

A temporary order pending appeal is authorized if it is necessary to preserve and protect the children’s welfare or to preserve the parties’ property. Tex. Fam. Code ANN. §§ 6.709, 109.001. Here, the trial court could reasonably conclude it was necessary to order Xavier to deposit the funds due Stephanie for equity interest in the homestead in the court’s registry for either of two reasons.

First, Stephanie states in her post-decree pleadings that she intends to appeal the trial court’s characterization and division of the parties’ property. If she is successful, the trial court’s judgment will be reversed and the case will be remanded to the trial court for a new “just and right” division of all the community property, including the homestead. Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex.1985); see Tex. Fam.Code Ann. § 7.001 (Vernon 1998). Consequently, it is impossible at this point to determine the amount of the final award to Stephanie. Second, Stephanie testified at the hearing that she needs Xavier’s payments to her for her interest in the equity in their homestead to help pay her living expenses while the appeal is pending. It thus appears that, if Stephanie’s appeal is successful and the case is remanded for a new division, she will be unable to return the payments to the community estate for a new division. Under these circumstances, we hold the trial court did not abuse its discretion in concluding that, to preserve the community estate pending appeal, Xavier should deposit the payments due Stephanie for her equity in the community homestead into the registry of the court. See Tex. Fam.Code ANN. § 6.709.

Appellate Attorney’s Fees

Stephanie next argues the trial court was without authority to award Xavier appellate attorney’s fees and to do so wrongly penalizes her for appealing. We again disagree.

The trial court is expressly authorized to award appellate attorney’s fees when it is necessary and equitable to protect the welfare of the children or necessary to preserve the property during the appeal. Tex. FaM.Code Ann. §§ 6.709(2), 109.001(5). Under the terms of the decree, Xavier has primary responsibility for the children and for the care and upkeep of and the debt on the children’s principal home. Under these circumstances, we hold the trial court could reasonably conclude that it would be equitable to order Stephanie to pay Xavier’s appellate attorney’s fees in the event her appeal is unsuccessful. And, because the award of appellate attorney’s fees is contingent on Stephanie being unsuccessful in her appeal, the award does not “penalize [Stephanie] for taking a successful appeal.” Siegler v. Williams, 658 S.W.2d 236, 241 (Tex.App.-Houston [1st Dist] 1983, no pet.).

Method of Payment

Stephanie next argues the trial court abused its discretion in ordering that Xavier’s contingent appellate attorney’s fees be paid out of the funds in the court’s registry because it impermissibly encumbers her equity interest in the marital homestead and modifies the property division in the divorce decree after the trial court’s plenary power had expired. We agree.

In its disposition of the marital property, the trial court must divide the parties’ marital estate in a manner the court determines just and right, having regard for the rights of each party and any children of the marriage. Tex. Fam.Code Ann. § 7.001 (Vernon 1998). One factor the court may properly consider in making an equitable division of the estate is appellate attorney’s fees. Matthews v. Matthews, 725 S.W.2d 275, 281 (Tex.App.Houston [1st Dist.] 1986, no pet.). However, the court may not encumber a party’s interest in the homestead with unsecured debt that is unrelated to the property or require that such debt be paid from the proceeds of the partition of the homestead. See Walston v. Walston, 971 S.W.2d 687, 694-95 (Tex.App.-Waco 1998, pet. denied); Matter of the Marriage of Banks, 887 S.W.2d 160, 164 (Tex.App.-Texarkana 1994, no writ); Sharman v. Schuble, 846 S.W.2d 574, 575-76 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding); see also Tex. Const. art. XVI, § 50; Tex. Prop.Code Ann. § 41.001 (Vernon Supp. 2003).

“Property adjudications in a divorce decree become final the same as in other judgments relating to title and possession of property.” Schwartz v. Jefferson, 520 S.W.2d 881, 887 (Tex.1975). Accordingly, the trial court retains plenary power over its decree and may modify its property division until thirty days after a timely filed motion for new trial has been overruled by order of the court or by operation of law. See Tex.R. Crv. P. 329b; McGehee v. Epley, 661 S.W.2d 924, 926 (Tex.1983) (per curiam). After its plenary power has expired, but within thirty days of a timely filed notice of appeal, the trial court may sign temporary orders, as authorized by the Family Code. See Tex. Fam.Code Ann. §§ 6.709, 109.001. These temporary orders may impose additional obligations on the parties pending disposition of the appeal; but, if the trial court’s plenary power over the decree has expired, the temporary orders may not alter, amend, or modify the substantive division of the property in the final decree. See Tex. Fam.Code Ann. § 9.007(a) (“court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce.”).

In the Garzas’ divorce decree, the trial court awarded Stephanie $73,871 for her equity interest in the marital homestead as part of its “just and right” division of the estate and expressly declined to award attorney’s fees against either party. Because Stephanie timely filed a motion for new trial, the court could have modified, altered, or changed its property division until December 3, 2003 — the thirtieth day after the motion for new trial was overruled by operation of law. See Tex.R. Civ. P. 329b. It did not do so. Thereafter, unless and until the judgment is reversed on appeal and the case is remanded for a new property division, the trial court was and is without authority to alter the substantive division of the property.

By awarding Xavier $25,000 in contingent attorney’s fees to be paid out of Stephanie’s award for her equity interest in the homestead, the trial court’s temporary order impermissibly encumbers the exempt proceeds of Stephanie’s interest in the homestead. See Sharman, 846 S.W.2d at 575-76; see also Tex. Const. art. XVI, § 50; Tex. Prop.Code Ann. § 41.001 (Vernon Supp.2003) (proceeds from sale of homestead exempt from seizure for six months); First Nat’l Bank of Harlingen v. Jeffress, 71 S.W.2d 298, 299 (Tex.Civ.App.-San Antonio 1934, writ ref'd) (holding that money awarded wife in divorce decree in payment of her interest in homestead are proceeds from sale of homestead rights and exempt from garnishment). The same provision, in effect, impermissibly modifies the division of property in the decree after the trial court’s plenary power had expired in violation of section 9.007 of the Family Code. See Sharman, 846 S.W.2d at 575-76; Valencia v. Valencia, 792 S.W.2d 565, 566-67 (Tex.App.-El Paso 1990, no writ). We therefore hold the trial court abused its discretion in ordering that the contingent attorney’s fees awarded to Xavier be paid out of the funds in the registry of the court.

Writs op Injunction and Prohibition

In her final issue, Stephanie argues the trial court abused its discretion in denying her motion for temporary support and injunctive relief to protect and preserve the community assets in Xavier’s possession and control and asks this court to issue a writ of injunction for the protection of all the property while the appeal is pending and a writ of prohibition “to preclude any further action by the trial judge.” However, this court’s authority to issue writs of injunction and prohibition is limited to those necessary to enforce its jurisdiction. Tex. Gov’t Code Ann. § 22.221 (Vernon 2004). Stephanie has neither alleged nor shown that the relief she seeks is necessary to enforce this court’s jurisdiction.

Conclusion

In ordering Xavier to deposit payments due Stephanie for her equity interest in the couple’s homestead into the registry of the court and in awarding Xavier contingent appellate attorney’s fees, the trial court acted within its authority to preserve the property and to protect the welfare of the children pending the appeal. We therefore deny Stephanie’s petition insofar as it seeks a writ of mandamus to compel the trial court to vacate these aspects of the trial court’s temporary order. We also deny the petition insofar as it seeks writs of injunction and prohibition; Stephanie has not shown these writs are necessary to enforce this court’s jurisdiction. However, we conditionally grant Stephanie’s petition insofar as it seeks a writ of mandamus to compel the trial court to vacate the part of its temporary order that requires the award of contingent appellate attorney’s fees to Xavier to be paid out of the funds in the registry of the court. This aspect of the trial court’s temporary order substantively modifies the property division after the trial court’s plenary power over its judgment had expired and requires Stephanie to pay attorney’s fees with the exempt proceeds from the transfer of her equity interest in the homestead. The clerk of this court is directed to issue the writ only if Judge Specia fails to file proof that he has complied with our order within ten days of its issuance.

      . Stephanie argues the order constitutes an "unconstitutional financial barrier” that interferes with her "right of access to the appellate courts.” However, the only authority Stephanie cites to support her argument is Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349 (Tex.1996), which stands for the general proposition that the open courts provision in the Texas Constitution requires courts to be open to those with legitimate disputes even if they cannot afford to pay court costs. Id. at 353; see Tex. Const. art. I, § 13. But Stephanie does not argue that the trial court’s order prevents her from appealing the trial court’s judgment; rather, she contends it "deprive[s] her of resources she needs for her subsistence.” In effect, therefore, Stephanie contends the open courts provision requires the trial court to allow her to dissipate the assets that are the subject of her appeal so she can meet her living expenses. But she has not presented, and we have not found, any authority to support this contention. Certainly Griffin Industries does not do so.
      Stephanie also argues the trial court’s temporary order wrongly deprives her of the use of her property during the pendency of her appeal. It is true the trial court’s temporary order deprives Stephanie of the use of property granted her by the divorce decree during the pendency of her appeal. However, Stephanie's decision to appeal the property division, which necessarily includes the division of the homestead and its equity, renders the amount of the final award to Stephanie uncertain; and she offers no authority that she has any vested right to deplete the marital estate pending appeal. She has therefore not established that the trial court’s temporary order "wrongly" deprives her of the use of the property.


author: SANDEE BRYAN MARION, Justice.

text:
    Walter SPEARS and Connie Spears, Individually and as Next Friends of Michael Spears, Appellants, v. Darrell J. COFFEE and Jennifer K. Coffee, Appellees.
    No. 04-04-00370-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 10, 2004.

      From the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-06411, Karen Pozza, Judge Presiding.

    Nelda J. Ortiz, Law Office of Nelda J. Ortiz, P.C., San Antonio, for appellants.
    Christopher “Kipper” Burke, Miller & Burke, P.C., San Antonio, for appellees.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.

      . The Honorable Pat Boone is the presiding judge of the 57th Judicial District Court, Bex-ar County, Texas. However, the Honorable David Peeples, presiding judge of the 224th Judicial District Court, Bexar County, Texas, heard and signed the summary judgment that is at issue in this appeal. The Honorable Karen Pozza, presiding judge of the 407th Judicial District Court, Bexar County, Texas, signed the final judgment.

   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

The underlying negligence lawsuit was brought by Walter and Connie Spears, individually and as next friends of their son, Michael Spears, for injuries suffered by Michael in the home of Darrell and Jennifer Coffee. Michael was injured when he was assaulted by another teenager, Billy Corke, who was also present at the Coffee’s home.

During the Summer of 2000, Michael Spears, the Coffees’ daughter Katherine, and a mutual friend Billy Corke, all spent time together at the Coffees’ home along with other teenagers. On September 6, 2000, all three minors were present in the Coffee house, when Billy struck Michael in the face. At the time of the altercation, Mrs. Coffee was in her front yard and Mr. Coffee was out of town. After the altereation, the Spears called the police, and Billy was arrested and later convicted of criminal assault on Michael. The Spears sued Billy, Billy’s parents, and the Coffees, alleging negligence and other claims. The Coffees moved for summary judgment on the grounds that they owed no duty to Michael and, even if they did, Billy’s intervening criminal conduct was a superseding cause of Michael’s injuries. The trial court granted the summary judgment without stating its grounds. The Spears’ claims against the Coffees were severed into a separate cause, and the trial court rendered a take-nothing judgment in favor of the Coffees. On appeal, the Spears argue that the trial court erred because the Coffees owed Michael a general duty actionable in negligence and a specific duty as owners and occupiers of the property on which Michael was injured. We agree with the Coffees that Billy’s criminal conduct was a superseding cause; therefore, we affirm.

INTERVENING CAUSE

The Spears assert the Coffees owed Michael a duty to protect him from a foreseeable risk of injury, and that they breached this duty by fading to adequately supervise Billy and the other teenagers who were present in their home. Alternatively, they argue that because the Coffees were aware of Billy’s behavioral problems and violent tendencies, they created a dangerous situation by allowing Billy in their home, unsupervised, and did nothing to prevent injury to Michael. Therefore, according to the Spears, the Coffees owed Michael a duty as premises owners.

The elements of a negligence case are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549-50 (Tex.1985). We will assume, without deciding, that the Coffees had a duty to supervise the teenagers while they were present at the Coffee house. See e.g., Doe v. Franklin, 930 S.W.2d 921, 928 n. 4 (Tex.App.-El Paso 1996, no writ) (“It may be reasonably inferred that when a young child is left alone with an adult, that adult is assuming the position of care giver.” (emphasis in original)). However, we conclude the Spears did not raise a fact issue on proximate cause sufficient to defeat the Coffees’ entitlement to summary judgment as a matter of law.

The components of proximate cause are cause in fact and foreseeability. Doe, 907 S.W.2d at 477. Cause in fact means the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Doe, 907 S.W.2d at 478. Generally, third-party criminal conduct is a superseding cause unless the criminal conduct is a foreseeable result of such negligence. See Nixon, 690 S.W.2d at 550; see also Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999). Whether criminal activity was foreseeable in a particular instance requires “more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant’s conduct brings about the injury.” Doe, 907 S.W.2d at 478.

Courts consider the following factors in determining whether an intervening force rises to the level of a superseding cause:

(a) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that the intervening force’s operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of the force’s operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person that is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person that sets the intervening force in motion.

See Pena, 990 S.W.2d at 754 (citations omitted). “Thus, to be a superseding cause, the intervening force must not be ordinarily or reasonably foreseeable.” Id. When a defendant presents evidence that the plaintiffs injuries resulted from intervening criminal conduct that rises to the level of a superseding cause, the defendant has negated the ordinary foreseeability element of proximate cause. Id. The burden then shifts to the plaintiff to raise a fact issue by presenting controverting evidence that the criminal conduct was foreseeable. Id.

Here, the undisputed evidence establishes that both Michael and Billy were present together as frequent guests in the Coffee home before the incident. Throughout the Summer of 2000, the two boys, Katherine Coffee, and other teenagers would watch television, play pool in the Coffees’ garage, and swim and play water games in the Coffees’ swimming pool. Billy had an open invitation to come to the Coffee house, and was there three to five times a week. Prior to the incident, Billy always was well-behaved, with the exception of one incident. Mrs. Coffee said Billy admitted to writing something on her table. The Spears characterize this as “carving” the word “wicked” into the table. Mrs. Coffee said Billy did not “carve” anything on the table, instead he wrote something (which she did not read) in pencil, and when she asked him to clean it off with a household cleaner, he did. The Spears admitted that, prior to the incident, Michael and Billy had not been involved in any physical confrontation. Mrs. Coffee stated that nothing like this incident had ever before occurred in her home.

On the day of the incident, Billy arrived at the Coffee home where he spoke to both Mrs. Coffee and Katherine. Mrs. Coffee described Billy’s demeanor as “just fine.” In her witness statement following the incident, Katherine described Billy as “a little upset when he first arrived about an hour earlier ... because his girlfriend ... had been sort of taunting him for about a week.” In her deposition, Katherine described Billy before the incident as “passive,” and on the day of the incident, she said he appeared “aggravated” when he first arrived at her house but he “got fine” within a few minutes. Mrs. Coffee and Katherine admitted the teenagers would play “chicken” in the swimming pool, which involved one child on the shoulder of another and each pair attempting to knock the other pair over.

The facts reflected in the Coffees’ summary judgment proof conclusively established that Billy’s intentional criminal act was a superseding cause of Michael’s injuries. See Pena, 990 S.W.2d at 755 (and cases cited therein) (while proximate cause is usually a fact issue, it is an issue of law when the facts are conclusive). First, the harm inflicted by Billy was different in kind from that generally contemplated by the Coffees when the teenagers were present in their home. It is foreseeable, for example, that teenagers will engage in “horseplay” and “roughhousing,” and injuries may ensue. On the other hand, the intentional assault on Michael is not the type of harm that would ordinarily result from such teenage activities as watching television, playing pool, or playing water games in a swimming pool. The act committed by Billy was an “extraordinary” rather than “normal” consequence of teenage “horseplay” and “roughhousing.” See Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 385 (Tex.App.-Houston [1st Dist.] 1996, writ denied) (noting that small scuffles at softball park after participants consumed alcohol may be foreseeable, but the “ferocity of this fight and the severity of [plaintiffs] injuries were extraordinary” and not foreseeable as a matter of law); Yarborough v. Erway, 705 S.W.2d 198, 203-04 (Tex.App.-Houston [14th Dist.] 1985, writ refd n.r.e.) (holding that third party’s sudden violent criminal acts were an unforeseeable consequence of a bar’s alleged negligence in serving the intoxicated assailant).

Having established that Billy’s wrongful actions and the harm he inflicted were extraordinary in nature and not of the type generally contemplated by the duty to supervise teenagers in one’s home, the Coffees satisfied the first three factors considered by the Pena Court. The remaining factors, which focus on the intervener’s wrongful conduct and degree of culpability, support the conclusion that Billy’s acts were a superseding cause of Michael’s injuries because Billy’s acts were clearly wrongful and he was found criminally liable. Therefore, we conclude the Coffees met their summary judgment burden to establish that Billy’s criminal act was not foreseeable and was a superseding cause of Michael’s injuries. By establishing superseding cause, the Coffees also negated the ordinary foreseeability element of proximate cause. See Pena, 990 S.W.2d at 756. Once this element was negated, the Spears could defeat the motion for summary judgment only by presenting evidence that, despite the “extraordinary” and “abnormal” nature of the intervening force, there was some indication at the time of the assault that such a crime would be committed.

In support of their response to the Coffees’ motion for summary judgment, the Spears offered Mrs. Spears’s affidavit in which she said Mrs. Coffee told her, before the incident, that “roughhousing” and “serious” horseplay” occurred amongst some of the teenagers who gathered at the Coffee house. Mrs. Spears claimed that when she heard this, she “warned Mrs. Coffee of Billy Corke’s tendency toward angry outbursts and propensity for violence.” Mrs. Spears did not identify the other teenagers or provide any specific details about their activities, and she gave no details about Billy’s alleged behavior. The Spears also relied on the knowledge of other teenagers about Billy. Katherine was aware Billy attended an alternative school, and both Michael and Billy’s former girlfriend were aware of other behavioral incidents involving Billy at school. However, no evidence was presented that Mr. and Mrs. Coffee were aware of these specific incidents pri- or to the confrontation at their home.

Even viewing all evidence favorable to the Spears as true and indulging every reasonable inference in their favor, this evidence is probative only of Billy’s behavior at school. The Spears presented no evidence that Billy acted in a disruptive or violent manner while at the Coffees’ home, nor did they raise any genuine fact issue that the Coffees should have foreseen the events that occurred that day in their home. Consequently, the trial court correctly granted summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377-78 (Tex.1996) (affirming summary judgment for defendant when plaintiff failed to bring forth any evidence raising a fact issue on foreseeability of criminal conduct).

CONCLUSION

We overrule the Spears’s issues on appeal, and affirm the trial court’s judgment.