author: LEE ANN DAUPHINOT, Justice.

text:
    Dominic Dean POLK, Appellant, v. The STATE of Texas, State.
    Nos. 2-04-315-CR to 2-04-319-CR.
    Court of Appeals of Texas, Fort Worth.
    June 9, 2005.

      Mick Meyer, Denton, for Appellant.
    Bruce Isaacks Criminal District Attorney, Charles E. Orbison, Rick Daniel, and Darren Ralstin, Asst. Criminal District At-tys., Denton, and Matthew Paul, State Prosecuting Atty., Austin, for Appellee, for Appellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Dominic Dean Polk of five burglaries of a habitation charged in separate indictments and assessed his punishment at twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice in cause number 2-04-315-CR, which had no enhancement paragraphs, and at seventy five years’ confinement in the remaining four cases. The jury also assessed a fine of $1000 in each of the five cases. The trial court sentenced Appellant accordingly-

Appellant brings four points on appeal, challenging the admission of certain statements, the denial of requested jury instructions, and the trial court’s denial of a mistrial after prosecutorial misconduct. Because we hold that the trial court did not reversibly err, we affirm the trial court’s judgments.

BACKGROUND FACTS

Appellant was arrested on December 5, 2003 and taken to jail. While Appellant was incarcerated, Officer Fitzgerald attempted to discuss some burglaries with him. Appellant refused to talk to Fitzgerald. Fitzgerald, according to Appellant, threatened that if Appellant did not admit to all the burglaries, Fitzgerald would charge him with a new one every time he was released from jail. Appellant admitted that he was on parole at the time of the burglaries.

The following day, Officer Crain attempted to speak with Appellant. Appellant refused to talk to Crain. Appellant subsequently made bail. On December 18, 2003, Appellant was arrested again. Appellant then confessed to four separate burglaries, providing two written statements, one on December 18 and one on December 19. Appellant’s fingerprints were discovered in a fifth burglarized home. On December 19, before giving his second written statement, Appellant accompanied Detective Smith and Detective Taylor as they drove around Denton so that Appellant could point out homes that he had burglarized. The conversations during this excursion were not recorded by any means.

Written Statements

In his third point, Appellant argues that the trial court erred by failing to suppress his typed statements because the police failed to honor his invocation of his right to silence, and/or his right to terminate the police interviews, and his right to counsel. Although Appellant refused to talk to the officers on December 5, when he was rearrested on December 18, he was arrested for a new offense. The invocation of his right to remain silent was case-specific and related only to those offenses for which he was arrested on December 5. After he talked to the officers regarding the new offense on December 18, he voluntarily continued to talk to them about all of the offenses. Although Appellant mentioned attorneys on December 18, he never clearly and specifically requested his attorney. We therefore overrule Appellant’s third point.

Improper Impeachment

In his first point, Appellant contends that the trial court abused its discretion by admitting the State’s impeachment evidence. After the State résted its case in chief, Appellant announced to the court that he was forced to put on a case because the trial court improperly admitted evidence, specifically his recorded and unrecorded statements. On the stand, Appellant denied committing the burglaries. He also testified that (1) his written statements were really the police officer’s, not his, (2) he did not point out houses that had been burglarized, and (3) Officers Smith and Taylor had lied about his words and actions. Additionally, he testified that his drug problem was in the past and that he had confessed to the burglaries only because the officers had promised not to file half of them and had promised him drug rehabilitation.

After Appellant testified, the State called Keith Smith and Appellant’s parole officer, Cynthia Herndon. Before their testimony, the prosecutor stated, outside the jury’s presence,

Because of the defendant’s testimony, I intend ... to go into the statements that Mr. Polk made concerning the— while they were driving around identifying the houses that were burglarized and the specifics as to what items were taken out of those houses and if he provided any information to Mr. Polk beforehand. I believe this is all permissible impeachment.

Appellant objected on the basis of Article 38.22, the Fifth Amendment, Miranda, the Fourteenth Amendment, and Article I, section 10 of the Texas Constitution. Appellant requested a limiting instruction, but he refused the limiting instruction “that questions regarding this are offered for impeachment purposes only, not for the truth of the matter asserted.” The State said that no instruction was necessary because, as admissions of a party opponent, the statements were not hearsay. Appellant asked for a limiting instruction indicating that the statements were not taken in compliance with statutory and constitutional requirements and “whatever the court would like to stick in as to why it’s being admitted,” which the trial court denied.

The trial court allowed the State to present without limitation the testimony of Detective Smith as to the unrecorded statements Appellant made while riding around with Smith and Taylor. The trial court also allowed the State to present the testimony of parole officer Cynthia Herndon as to unrecorded statements Appellant made to her on December 22, 2003. The trial court denied Appellant’s blanket request for a limiting instruction to her testimony. Appellant argues that admission of the testimony was error because the State did not lay the proper predicates and the trial court did not provide a limiting instruction.

“A criminal defendant who chooses to testify may be impeached, contradicted, cross-examined on new matters, and treated in every respect as any other witness, as long as any overriding constitutional or statutory prohibitions for the defendant’s protection are honored.” Usually, a witness may not be impeached on a collateral matter. But “when an accused testifies gratuitously as to some matter that is irrelevant or collateral to the proceeding, as with any other witness!,] he may be impeached by a showing that he has lied or is in error as to that matter.”

Article 38.22, section 5 of the Texas Code of Criminal Procedure allows the admission “of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness” even if the other requirements of Article 38.22, such as the recording of the statement and the giving of the warnings, are not met. On appeal, Appellant does not raise a voluntariness issue. From our review of his testimony and the rebuttal testimony of Smith and Herndon, the rebuttal testimony contradicted Appellant’s testimony about the charged offenses as well as the collateral matter of his drug usage. The rebuttal testimony therefore went to Appellant’s credibility. Consequently, we hold that the trial court properly admitted the rebuttal evidence.

But when evidence is offered for impeachment of a testifying defendant, the rule that a limiting instruction must be provided to the jury at the time the testimony is offered still applies. Appellant complains about the omission of a timely limiting instruction for the testimony of both rebuttal witnesses. But the record shows that he refused an adequate instruction as to the testimony of Smith. Under the doctrine of invited error, a criminal defendant may not create error, whether statutory or constitutional, and then submit that error as a basis for appellate relief. On the other hand, Appellant timely requested a blanket limiting instruction for the testimony of Herndon, which the trial court summarily denied. We hold that the trial court erred by not giving the jury a timely limiting instruction regarding Herndon’s testimony.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Because Appellant has not raised constitutional concerns on appeal, we treat this as an error in the admission of evidence, which is not constitutional. Consequently, rule 44.2(b) is applicable. Therefore, we are to disregard the error unless it affected Appellant’s substantial rights. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. In making this determination, we review the record as a whole.

The jury charge provided that none of Appellant’s statements should be considered for any purpose unless the jury believed beyond a reasonable doubt that the statement in question was voluntary, but that his statements could be used as evidence against him if the jury believed that they were voluntary. On the other hand, the charge then went on to say that Appellant’s statements could be admitted if written and signed by him after he waived his Miranda rights. No instruction was given that clearly limited the use of Appellant’s oral statements to the issue of his credibility-

But the evidence contained in Appellant’s properly admitted written statements, as well as other evidence in the case, such as fingerprints, was sufficient to sustain his convictions. We cannot say that the additional testimony concerning his pointing out houses that he had burglarized and his other oral statements to police officers and to his parole officer added significantly to the evidence against him. We therefore cannot say that the omission of the limiting instruction had a substantial and injurious effect or influence on the jury’s verdict. We overrule Appellant’s first point.

JURY Charge Error

In his second point, Appellant contends that the trial court erred by not giving an application paragraph on volun-tariness and by not giving a lesser included instruction on theft in cause number 2-04-316-CR. The trial court instructed the jury as follows on the issue of voluntariness:

You are instructed that a statement of the defendant may be used as evidence against him if the jury believes beyond a reasonable doubt that the statement was freely and voluntarily made by the defendant without compulsion or persuasion. Therefore, unless the jury believes beyond a reasonable doubt that the statement was freely and voluntarily made without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall not consider any statement of the accused for any purpose nor any evidence obtained as a result thereof.

This is a proper application paragraph on the issue of voluntariness.

Appellant also complains that he was improperly denied an instruction on the lesser included offense of theft in one of the cases. The indictment in cause number 2-04-316-CR charged that Appellant “did then and there intentionally or knowingly enter a habitation, without the effective consent of [the complainant], the owner thereof, with intent to commit theft and did attempt to commit and commit theft.” Knowing possession of recently stolen property is a type of theft. That is, Appellant could have intentionally or knowingly possessed the property stolen in the burglary without entering the house and without participating in the burglary as a party. Appellant, however, disputed a necessary element of theft when he denied knowing that the money and ring that his friend L.J., whom Appellant blamed for the burglary, had allegedly given him were stolen. Because there was no evidence that Appellant knowingly possessed stolen property that he did not obtain through burglary, he was not entitled to a lesser included instruction on theft. We overrule Appellant’s second point.

Denial of MistRIAl FOR Prosecutorial Misconduct

In his fourth point, Appellant complains that the trial court abused its discretion by faffing to grant a mistrial because of prosecutorial misconduct, specifically, the asking of improper questions and the eliciting of improper evidence on direct examination. Prosecutorial misconduct usually involves a deliberate violation of a court order coupled with “misconduct so blatant as to border on being contumacious.” In Ladd v. State, the Texas Court of Criminal Appeals held,

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the ease. The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard.

Officer Bolin testified without objection that he recognized Appellant when he saw him walking down the street. When the prosecutor tried to elicit information from the officer that he had handcuffed Appellant based on what he knew of Appellant and the crime he was investigating, Appellant objected. At the hearing outside the jury’s presence, the trial court made clear that the officer should not delve into his prior knowledge of Appellant. After the hearing, the prosecutor again asked, “Now, based upon your knowledge of the suspect and the crime that you were investigating at that time, is that why you handcuffed him?” The trial court sustained Appellant’s objection and granted his request for an instruction to disregard but denied his motion for mistrial.

With the witness Officer Taylor, the prosecutor repeatedly violated the judge’s instructions not to attempt back door hearsay. The prosecutor asked Taylor about his conversation with Appellant, and Taylor testified that he wanted Appellant to go with him to point out all the houses that he had broken into. When Taylor tried to elaborate by testifying about Appellant’s gestures or oral statements, the trial court sustained Appellant’s objection and granted his request for an instruction to disregard but denied his motion for mistrial. This scenario played out four times in four pages of direct examination.

Although we strongly disapprove of the trial prosecutor’s conduct of ignoring the trial court’s orders in these instances, we cannot say that the prosecutor’s conduct was so “prejudicial that expenditure of further time and expense” would have been “wasteful and futile.” Therefore, ■ based only on the facts of these cases, we cannot say that the trial court’s conduct in denying a mistrial amounted to an abuse of discretion.

We are mindful, however, of the fifth Harris prong, which requires us to determine whether declaring the misconduct harmless would be likely to encourage the State to repeat it with impunity. It is disturbing that the prosecutor persevered in this misconduct despite the judge’s repeated rebukes. We are at a loss to explain this conduct. Yet the remainder of the record reveals no other instance of such misconduct. Nor is there any evidence that the prosecutor had engaged in similar conduct previously. The record in this case does not create within us a conviction that declaring the misconduct harmless would be likely to encourage the State to repeat it with impunity. We therefore overrule Appellant’s fourth point.

Conclusion

Having overruled Appellant’s four points, we affirm the trial court’s judgments.

CAYCE, C.J., concurs without opinion.

      . See Michigan v. Mosley, 423 U.S. 96, 105, 96 S.Ct. 321, 327, 46 L.Ed.2d 313 (1975).

      . See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994); Castillo v. State, 742 S.W.2d 1, 4-5 (Tex.Crim.App.1987).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See Tex.R. Evid. 801(e)(2).

      . Sanchez v. State, 707 S.W.2d 575, 577 (Tex.Crim.App.1986); Cuellar v. State, 613 S.W.2d 494, 495 (Tex.Crim.App.1981).

      . Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App.1990).

      . Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986).

      . See Tex.Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005); United States v. Havens, 446 U.S. 620, 627, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971); Lykins v. State, 784 S.W.2d 32, 35-36 (Tex.Crim.App.1989); Garza v. State, 18 S.W.3d 813, 826 (Tex.App.-Fort Worth 2000, pet. ref’d).

      . Hammock v. State, 46 S.W.3d 889, 894 (Tex.Crim.App.2001).

      . See Garcia v. State, 919 S.W.2d 370, 393-94 (Tex.Crim.App.1994) (op. on reh’g); see also Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999) (distinguishing waiver from invited error), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000).

      . Tex.R.App. P. 44.2.

      . See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

      . Tex.R.App. P. 44.2(b).

      . Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref'd) (en banc).

      . King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Coggeshall, 961 S.W.2d at 643.

      . Kotteakos, 328 U.S. at 764-65, 66 S.Ct. at 1248.

      . See Burdine v. State, 719 S.W.2d 309, 320 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).

      . See Tex. Penal Code Ann. § 31.03(b)(2) (Vernon Supp.2004-05).

      . See id.

      . See Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998).

      . Landry v. State, 706 S.W.2d 105, 111 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 242, 93 L.Ed.2d 167 (1986).

      . 3 S.W.3d 547 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000).

      . Id. at 567.

      . Harris v. State, 790 S.W.2d 568, 585-87 (Tex.Crim.App.1989).


source: Caselaw Access Project

author: SUE WALKER, Justice.

license: Public Domain

text:
    Duncan Farwell LEACH, Appellant, v. The STATE of Texas, State.
    No. 2-04-333-CR.
    Court of Appeals of Texas, Fort Worth.
    June 16, 2005.

      Michael B. Curtis, Wichita Falls, for Appellant.
    Barry L. Macha, Criminal District Atty., John Brasher, Asst. Criminal District Atty., and John Gillespie, Asst. Criminal District Atty., Wichita Falls, for Appellee.
    Panel B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. INTRODUCTION

The trial court entered a judgment revoking Appellant Duncan Farwell Leach’s community supervision after determining that he violated condition number twenty of his community supervision. In three issues, Leach argues that there is no evidence that he violated condition number twenty; that article 42.12, section 13B(a)(l)(B) of the Texas Code of Criminal Procedure is unconstitutionally vague; and that, in this case, article 42.12, section 13B(a)(l)(B) operates as an impermissible delegation of authority to the community supervision department. We will affirm in part and dismiss for lack of jurisdiction in part.

II. Factual and PROCEDURAL Background

Leach entered a negotiated plea of guilty to the offense of indecency with a child, and the trial court suspended imposition of a ten-year sentence, placing Leach on community supervision for a period of five years. Leach met with his supervision officer, and the officer reviewed the terms and conditions of his community supervision with him. Condition number twenty of Leach’s community supervision conditions prohibited him from going “in, on or within 1000 feet of a premises where children commonly gather, including a school, school yard, park, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility”

Leach subsequently moved from Wichita Falls to Granbury in Hood County. Eddy Wininger assumed the responsibility as Leach’s supervision officer and read the court order to Leach, reviewed the terms and conditions of his community supervision with him, and performed a risk-needs assessment during their first meeting in early September 2003. Leach indicated that he understood the terms and conditions and did not ask Wininger any questions.

Wininger received a telephone call from the Granbury Police Department on September 29, 2003. During a meeting the next morning with Leach, Wininger asked if there had been any child safety zone violations. Leach responded that there had not been any such violations, but that he did pull into an apartment complex on Pearl Street in Granbury to answer his cell phone. While he was in the apartment complex parking lot, some children came out, and he left. Suspicious, Wininger went to the apartments, looked around, and spoke with a few people. Wininger learned that residents had observed Leach on several occasions sitting in his car in the apartment complex parking lot watching the children.

A few days later, Wininger visited Leach’s residence and confronted him with the information that he had learned from his investigation at the apartment complex. Leach stated that he had been at the apartment complex watching children, but that this event occurred before he was placed on community supervision. Win-inger reported the incident to the supervision department.

The State sought to revoke Leach’s community supervision, alleging two community supervision violations. The trial court revoked Leach’s community supervision after finding that he violated condition number twenty. The trial court’s judgment revoking Leach’s community supervision states that “on or about September 29, 2003, in Hood County, Texas, the defendant [Leach] was sitting in his vehicle at a local apartment complex (near the mail boxes) watching the children in the complex.” The trial court imposed a sentence of ten years’ confinement.

III. Violation of Condition Number Twenty

In his first issue, Leach argues that the trial court erred by revoking his community supervision because there was no evidence that he had gone within 1,000 feet of one of the locations listed in condition number twenty of his community supervision. Leach contends that the term “including” in condition number twenty is a term of limitation and not a term of enlargement and that because there was no evidence that Leach went within 1,000 feet of any of the specific locations listed in condition number twenty, the trial court erred by revoking his community supervision.

A. Standard of Review

We review an order revoking community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819 (Tex.App.-Fort Worth 2000, pet. ref'd). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at 493-94. Proof by a preponderance of the evidence of any one of the alleged violations of the conditions of community supervision is sufficient to support a revocation order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. [Panel Op.] 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. [Panel Op.] 1980).

B. Interpretation of Term “Including”

Condition number twenty of Leach’s community supervision, which provides that Leach shall not “go in, on or within 1000 feet of a premises where children commonly gather, including a school, school yard, park, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility,” is a condition mandated by section 13B(a)(l)(B) of the Texas Code of Criminal Procedure when a defendant guilty of the offense of indecency with a child is placed on community supervision. See Tex.Code CRiM. PROC. Ann. art. 42.12, § 13B(a)(l)(B) (Vernon Supp.2004-05). Leach contends that the term “including” as used in this statute is a term of limitation, not enlargement. The State asserts that the term “including” is a term of enlargement and argues that interpreting the term as one of limitation would “divest the condition ... of any reasonable relationship to the treatment of the accused and the protection of the public, specifically, children.” Because condition twenty tracks exactly the statutory language of article 42.12, section 13B(a)(l)(B), Leach’s argument is one of statutory construction. We therefore examine standard statutory interpretation and construction rules.

Our primary duty when construing a statute is to determine and give effect to the legislative intent. See Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003). If the language of a statute is unambiguous, the court must seek the legislative intent as found in the plain and common meaning of the words and terms used. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

Here, an inquiry into the plain meaning of the term “including” is unnecessary because the legislature has expressly provided us with its intent concerning the use of the term. Section 311.005(13) of the Code Construction Act provides that “ ‘[i]n-cludes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.” Tex. Gov’t Code Ann. § 311.005(13) (Vernon 2005). Thus, the first part of section 311.005(13) clearly shows that the legislature intended the term “including” to be one of enlargement and not limitation. Id. The second part of section 311.005(13) makes it clear that the term does not have the effect of creating a presumption against further inclusion of terms not expressly stated. Id. Accordingly, the legislature intended the term “including” in article 42.12, section 13B(a)(l)(B) to be one of enlargement.

In addition to legislative intent and section 311.005(13) of the Code Construction Act, practicality favors interpreting the term “including” as one of enlargement; it would be quixotic to apply a limiting interpretation to the term “including” considering the myriad of locations that could constitute a location “where children commonly gather.” Interpreting the statute to cover only those places expressly listed would have the effect of protecting children based on their location and not the fact that they are children.

In support of his argument that “including” as used in article 42.12, section 13B(a)(l)(B) is a term of limitation, Leach contends that the Board of Pardons and Paroles “has construed ‘including’ as a term of limitation when used in the context of establishing a child safety zone” under government code section 508.187(b)(1)(B). See Tex. Gov’t Code Ann. § 508.187(b)(1)(B) (Vernon 2004) (containing language identical to article 42.12, section 13B(a)(l)(B)). In the document cited by Leach, the Board uses the phrase “but not limited to” after the term “including” in describing a child safety zone. See Policy Bd„ Tex. Bd. of Paedons and PaRoles, NumbeR BPP-POL.01-11.03 (Nov. 2, 2001). We cannot agree that the Board’s express indication that a child safety zone is not limited to the listed places somehow impliedly limits the statutory child safety zones to the listed places because the but-not-limited-to language is not included. We cannot agree with Leach’s contention that “the administrative agency charged with supervising offenders and implementing a child safety zone believed that the words ‘includes’ and ‘including’ are terms of limitation” because the definition of “child safety zone” in the document uses the phrase “but not limited to” after the term “including.” Accordingly, we interpret the term “including” as one of enlargement and not limitation. See Republic Ins. Co., v. Silverton Elevators Inc., 493 S.W.2d 748, 752 (Tex.1973) (reasoning that it is a “well settled rule that the words ‘include,’ ‘including,’ and ‘shall include’ are generally employed as terms of enlargement rather than limitation or restriction”); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25-26 (Tex.App.-Tyler 2000, pet. denied) (reasoning that terms “include” and “including” are terms of enlargement); see also Fed. Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 99-100, 62 S.Ct. 1, 4, 86 L.Ed. 65 (1941) (“We recently had occasion under other circumstances to point out that the term ‘including’ is not one of all embracing definition, but connotes simply an illustrative application of the general principle.”); Range v. United States, 245 B.R. 266, 279 (Bankr.S.D.Tex.1999) (“Canons of statutory construction suggest that ‘includes’ broadens a statute’s reach, instead of limiting it.”).

C. Sufficiency of Evidence of Condition Violation

Leach does not argue that the trial court erred by revoking his community supervision because the evidence was insufficient to show that he violated term number twenty by going “in, on or within 1000 feet of a premises where children commonly gather.” Rather, Leach only argues that the trial court erred by revoking his community supervision because there was no evidence that he had gone within 1,000 feet of one of the locations specifically listed in condition number twenty of his community supervision. Having determined that the term “including” is a term of enlargement, we further hold that it was within the province of the trial court to determine if Leach violated condition number twenty by going “in, on or within 1,000 feet of’ any “premises where children commonly gather.” The trial court made such a determination, and Leach does not contest it in any manner. Accordingly, the trial court did not abuse its discretion by revoking Leach’s community supervision. See Cardona, 665 S.W.2d at 493; Jackson, 645 S.W.2d at 305. We overrule Leach’s first issue.

IV. GRASSY Area — “Wheke Children Commonly Gather”

In his second issue, Leach argues that the phrase “where children commonly gather” in article 42.12, section 13B(a)(l)(B) is unconstitutionally vague and violates his due process and due course of law rights under the Federal and Texas Constitutions. Specifically, Leach contends that the phrase is “wholly incapable of meaningfully apprising any individual, and in particular, your Appellant, where, when, and by what means he may arrive, stay, or depart virtually any given location within the State of Texas.” Leach also argues that the statute “clearly allows for ad hoc decisions by the probation department, the prosecutor’s office, and finally the Court, as to whether to report, prosecute and convict a defendant accused of violating a child safety zone in any other location than that which is specifically enumerated in the statute.”

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily by enacting it. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). The burden is on the party challenging the statute to prove its unconstitutionality. Id. A statute may be unconstitutionally vague if (1) it fails to give a person of ordinary intelligence fair notice of the prohibited conduct or (2) it encourages arbitrary and discriminatory enforcement by law enforcement personnel. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Holcombe, 145 S.W.3d 246, 253 (Tex.App.-Fort Worth 2004, pet. granted). Requiring mathematical certainty from words alone is not expected. See Grayned v. City of Rockford, 408 U.S. 104, 108-10, 92 S.Ct. 2294, 2298-2300, 33 L.Ed.2d 222 (1972). The vagueness doctrine “is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).

A judge is required by section 13B of article 42.12 to include certain conditions in a defendant’s community supervision when a child was the victim of a sexual offense by the defendant. Tex.Code Crim. Proc. Ann. art. 42.12, § 13B(a)(l)(B). One of these conditions, section 13B(a)(l)(B), prohibits the probationer from “go[ing] in, on, or within 1,000 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility[.]” Id.

Here, the record demonstrates that Leach understood the he was violating condition number twenty of his community supervision by sitting in his vehicle at the apartment complex watching children play. Each witness for the State testified that the grassy area near the apartment complex is a location where children play and commonly gather. The apartment complex does not have a playground area or a swimming pool, and the testimony reflected that children under the age of thirteen would regularly use the grassy area to gather and play. A resident of the apartment complex called police to report that he had observed Leach on multiple occasions sitting in a car watching the children play. Leach admitted to Wining-er that, the previous summer, he had visited the apartment complex to watch the children. And Leach admitted to Wining-er that he had pulled into the apartment complex on one occasion while he was on community supervision to answer his cell phone. Thus, the record shows that Leach was aware from his visits to the apartment complex the previous summer that children commonly gathered and played in the grassy area; yet, according to residents, on multiple occasions Leach pulled into the apartment complex and sat in his car watching the children play. Wininger testified that, based on his conversations with Leach, Leach understood that he was not permitted to be in locations where children are gathered. Accordingly, the record does not demonstrate, as Leach argues, that article 42.12, section 13B(a)(l)(B) failed to give him notice of the prohibited conduct. Rather, the record shows that Leach understood the type of conduct prohibited by condition number twenty of his community supervision conditions. Furthermore, article 42.12 provides in its entirety extensive rules governing the community supervision process such that ad hoc decisions by law enforcement personnel are apparently obviated. See id. art. 42.12. Thus, Leach did not meet his burden of showing that article 42.12, section 13B(l)(a)(B) is unconstitutionally vague, and the trial court did not err by revoking Leach’s community supervision after finding that he “failed to avoid places where children commonly gather” in violation of condition number twenty of his community supervision. We overrule Leach’s second issue.

Y. Impermissible Delegation of Judicial AuthoRity

In his third issue, Leach argues that article 42.12, section 13B(a)(l)(B) of the Texas Code of Criminal Procedure, the basis for condition number twenty in his community supervision conditions, results in the impermissible delegation of judicial authority in violation of his right to due process. The State maintains that Leach waived this issue by faffing to timely appeal after he was placed on community supervision.

The failure to timely appeal from a conviction resulting in community supervision waives the right to appeal. See Tex.Code CRiM. Peoc. Ann. art. 42.12, § 23(b) (Vernon Supp.2004-05); Hoskins v. State, 425 S.W.2d 825, 828-29 (Tex.Crim.App.1967) (op. on reh’g); Anthony v. State, 962 S.W.2d 242, 245-46 (Tex.App.Fort Worth 1998, no pet.). Article 42.12, section 23(b) states,

The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision. When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the institutional division of the Texas Department of Criminal Justice, he may appeal the revocation.

Tex.Code CRiM. Proc. Ann. art. 42.12, § 23(b).

Here, Leach did not assert an appeal challenging article 42.12, section 13B(a)(l)(B) on improper delegation grounds after the trial court entered judgment placing him on community supervision. Rather, he makes this argument for the first time following revocation of his community supervision. Because this issue concerns Leach’s original conviction— not the revocation of his community supervision — we cannot address it. See id,.; Anthony, 962 S.W.2d at 245-46. We dismiss Leach’s third issue for want of jurisdiction.

VI. Conclusion

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

      . Brittney Storey testified as follows:
      [Prosecutor]: Now, this grassy area in front of the apartment complex, is that a place where children commonly gather?
      [Storey]: Yes.
      Sheila Lawson testified as follows:
      [Prosecutor]: Ms. Lawson, this grassy area that is in State’s Exhibit No. 6 in front of your — the complex, in September of 2003 was that an area where children commonly gathered?
      [Lawson]: Yes, sir. That is where they play.
      Cari Davis testified as follows:
      [Prosecutor]: All right. And in that grassy area in front of your mom’s apartment, showing you State’s 6, were there little kids playing in that area?,
      [Davis]: Yes, there were.
      Eddy Wininger testified as follows:
      [Prosecutor]: Would you say that that area in front of the complex is a place where children commonly gather?
      [Wininger]: I have seen children there quite often. I would say it’s a common place for kids that live in that apartment complex.


author: JOHN F. ONION, JR., Justice (Retired).

text:
    The STATE of Texas, Appellant, v. Robert BLANKENSHIP, Appellee.
    Nos. 03-03-00287-CR to 03-03-00294-CR.
    Court of Appeals of Texas, Austin.
    June 29, 2005.
    Rehearing Overruled Aug. 12, 2005.

      Gaye Lynn Brewer, Austin, for Appellant.
    Terrence L. Irion, Anatole R. Barn-stone, Law Office of Terrence L. Irion, for Appellee.
    Before Chief Justice LAW, Justices PURYEAR and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

   OPINION

JOHN F. ONION, JR., Justice (Retired).

This appeal by the State of Texas involves eight judgments, nos. 624903 through 624910, entered in the County Court at Law No. 1 of Travis County, each of which reversed a judgment of conviction in the municipal court of record of the City of Austin.

On original submission, this Court concluded that it was confronted with a jurisdictional question in light of the amended notice of appeal filed by an assistant city attorney. Prior to November 1987, there was a traditional prohibition against the State’s right to appeal in a criminal case. See State v. Pittman, 829 S.W.2d 897, 898 (Tex.App.-Austin 1992, no pet.). In 1987, the citizens of Texas voted to amend the State Constitution to read: “The State is entitled to appeal in criminal cases as authorized by general law.” Tex. Const, art. V, § 26. Article 44.01 of the Code of Criminal Procedure was amended to grant the State an extremely limited right of appeal in certain designated circumstances, including when a court order “arrests or modifies a judgment.” Tex.Code Crim. Proc. Ann. art. 44.01(a)(2) (West Supp.2004-05). The statute provided that the “prosecuting attorney” may not “make” an appeal later than the 15th day after the date on which the court’s order, ruling, or sentence was entered. Art. 44.01(d).

The statute further provides:

(i) In this article, “prosecuting attorney” means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.

Tex.Code Crim. Proc. Ann. art. 44.01(i) (West Supp.2004-05).

It is clear from the statute that a duly authorized subordinate of the “prosecuting attorney” may not “make” an appeal. And we know that “in order for a State’s notice of appeal to invoke the Court of Appeals’ jurisdiction, it must be timely, it must be in writing, and it must be ‘made’ by the elected prosecuting attorney.” State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App.2000).

The notice of appeal in the instant case was signed and executed by an assistant city attorney and contained the following:

IV.

The County Attorney has consented to the City Attorney prosecuting this appeal under article 45.201 of the Code of Criminal Procedure.

The State’s brief acknowledges that the foregoing sentence is “ambiguous.” The notice was signed by a person not connected to the county attorney’s office. It did not reflect the name of the county attorney or the county and made express reference to article 45.201 but not to article 44.01, which governs the “making” of the State’s notice of appeal. Article 45.201(c) permits the city attorney to prosecute appeals from municipal court only “with the consent of the county attorney.” The statute has no time limitations and does not require the request or consent to be in writing. It would appear to apply to appeals that have been perfected.

For the reasons set forth in State v. Blankenship, 128 S.W.3d 99 (Tex.App.-Austin 2003), this Court found that the notice was not “made” by the county attorney and that this Court lacked jurisdiction to entertain the appeal. The State’s petition for discretionary review was granted. Our judgment was reversed and the cause remanded for further proceedings. State v. Blankenship, 146 S.W.3d 218, 220 (Tex.Crim.App.2004). The Court of Criminal Appeals found the city’s assertion in the notice of appeal was a written express personal authorization by the county attorney and found the assertion simultaneously complied with article 44.01 as to the notice of appeal and with article 45.201(c) as to authorizing the city attorney to prosecute the appeal. Id. at 218-20. Since the Court of Criminal Appeals found that this Court had jurisdiction to hear the State’s appeal, we turn to the only point of error before this Court.

Background

On April 24, 2002, thirteen complaints were filed against Blankenship in the Austin Municipal Court of Record charging him with violations of certain city ordinances. Each complaint alleged that the offense occurred in the territorial limits of the city of Austin as required by article 45.019(c) of the Code of Criminal Procedure. Trial by jury was waived and Blankenship entered a plea of not guilty in each case. The cases were heard on July 17, 2002. Blankenship filed pretrial motions to quash each complaint on the basis that the complaints alleged all the offenses occurred in the territorial limits of the city when in fact the offenses occurred outside the city or its territorial limits. The motions were called to the trial court’s attention on the day of trial. After some discussion as to the date of filing, the motions were overruled as being untimely “under local rules.” See also Tex.Code Crim. Proc. Ann. art. 45.019(f) (West Supp.2004-05); cf Tex.Code Crim. Proc. Ann. art. 4.14(b) (West 2005) (relating to indictments and informations). The motions to quash are not in the appellate record.

After the State rested its case, Blankenship moved for an instructed judgment of acquittal in each case, inter alia, on the basis that the State had failed to prove the allegation that the offenses occurred in the territorial limits of the city but in fact had proved without dispute that the offenses had occurred outside the territorial limits of the city. The trial court asked for “written arguments.” We find no ruling on the motions for instructed judgments of acquittal. Blankenship testified and presented his defense. The municipal court acquitted Blankenship of five of the thirteen charges and took the other cases under advisement. On August 22, 2002, the municipal court found Blankenship guilty of five offenses of developing or changing the use of property without first obtaining a site plan approval and release by the city of Austin. Blankenship was also found guilty of three offenses of failing to observe a stop-work order posted at the site of the property involved. The trial court assessed a $1,000 fine in each of the eight cases.

Blankenship filed a motion for new trial setting forth, inter alia, a “point of error” complaining the State failed to prove venue as alleged in each complaint. The motion was overruled. Notice of appeal was given to County Court at Law No. 1 of Travis County. In his appellate brief in county court, Blankenship again raised the contention that venue had not been proven as alleged.

On appeal, the County Court at Law No. 1 of Travis County considered only one of Blankenship’s points of error — that being the failure of the State to prove its allegation in each complaint that the offenses occurred in the territorial limits of the city of Austin. The county court in its opinion sustained Blankenship’s contention, reversed the eight convictions, and did not reach Blankenship’s other points of error.

The county court found that the evidence showed and the parties agreed that the actions giving rise to the alleged offense occurred outside the territorial limits of the city of Austin but inside the city of Austin’s extraterritorial jurisdiction as provided in Chapter 42 of the Texas Local Government Code. See Tex. Loc. Gov’t Code Ann. §§ 42.001, .021(5) (West 1999).

It is clear that the Austin Municipal Court of Record had original exclusive criminal jurisdiction to try violations of certain city ordinances both within the territorial limits of the city and outside those limits but within a geographical area located within the extraterritorial jurisdiction of the city. The issue is not one of jurisdiction, but failure to prove venue as laid.

The county court recognized the requirement of article 45.019(c) but eonclud-ed it was “nonsense” to argue the complaint must allege the offense occurred within the territorial limits of a city when “the truth of the matter is that the offense, if any, occurred in ETJ [extra territorial jurisdiction] of the city.” The county court’s opinion discussed how in its opinion each complaint should have alleged venue as being in the extraterritorial jurisdiction and the basis for extending the court’s reach beyond the territorial limits of the city such as referencing section 401.002(a) of the Texas Local Government Code or other applicable law. The county court concluded that “because the prosecution did not prove an essential element of its case, this prosecution must fail.”

In light of Blankenship’s point of error, the issue was not whether each complaint properly charged an offense. Each complaint did charge an offense and was sufficient on its face to invoke the jurisdiction of the Austin Municipal Court of Record. Further, the issue was not the proper manner of pleading each offense. The sole issue is the consequence of the failure of the prosecution to prove venue as laid under the particular circumstances of these cases.

The State has appealed the judgments of reversal to this Court. The State concedes the failure to prove the venue allegation but contends that the error was harmless and the convictions must stand.

Venue

Venue is distinct from jurisdiction. Skillern v. State, 890 S.W.2d 849, 859 (Tex.App.-Austin, 1994, pet.ref'd). The terms are not synonymous. Martin v. State, 385 S.W.2d 260, 261 (Tex.Crim.App.1964). Jurisdiction is the authority or power conferred upon a court by the constitution and laws of the State that allows a court to hear and try a case. Riewe, 13 S.W.3d at 410; Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996); Ex parte Watson, 601 S.W.2d 350, 351; Skillern, 890 S.W.2d at 859. Venue means the place where the case may be tried. Soliz v. State, 97 S.W.3d 137, 141 (Tex.Crim.App.2003); Thomas v. State, 699 S.W.2d 845, 854 (Tex.Crim.App.1985); Skillern, 890 S.W.2d at 859. At common law, venue meant the neighborhood, place, or county in which the injury is declared to have been done or in fact declared to have happened. Black’s Law Dictionary 1557 (6th ed.1991); Soliz, 97 S.W.3d at 141. Venue denotes locality, and its prevailing meaning is the place of trial, the geographical location in which an action or proceeding should be brought to trial. 92 C.J.S. Venue § 2.

Venue is not a constituent element of the offense charged. Skillern, 890 S.W.2d at 860; see also 40 Dix § 2.82 (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981)). Venue must be proved only by a preponderance of the evidence. See Tex.Code Crim. Proc. Ann. art. 13.17 (West 2005); Banks v. State, 530 S.W.2d 940, 943 (Tex.Crim.App.1975); Gonzales v. State, 784 S.W.2d 140, 142 (Tex.App.-Austin 1990, no pet.). The failure of proof of venue by the prosecution does not negate the guilt of the accused. Fairfield, 610 S.W.2d at 779. It is presumed that venue was proved at trial unless disputed at trial or the record affirmatively shows the contrary. See Tex.R.App. 44.2(c)(1). It must be remembered, however, that if the issue of venue is timely raised, reversible error may result from the failure to prove venue as laid in the charging instrument. See Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App.1983); cf. Sander v. State, 52 S.W.3d 909, 917 (Tex.App.-Beaumont 2001, pet. ref'd).

With this background, we turn to the variance between the venue alleged and the venue proven. The failure to prove venue as laid in each complaint was error. Was it harmless error or reversible error? The State relies upon Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001), claiming that there was only an immaterial variance that did not prejudice Blankenship’s substantial rights. Id. at 248. The State acknowledges that the venue actually proved was outside the city limits but in a geographical area within the extraterritorial jurisdiction of the city in Travis County, State of Texas, and over which the Austin Municipal Court of Record had exclusive criminal jurisdiction to try violations of certain city ordinances. Hence, the variance between the venue alleged and the venue proven was immaterial regarding Blankenship’s substantial rights.

Normally, variance claims are treated as sufficiency of the evidence problems. Id. at 247. A state review of the sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct charge for the case. Id. at 253 (citing Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997)). The Malik test is also applicable to non-jury or bench trials. Malik, 953 S.W.2d at 240.

As observed earlier, venue is not a constituent element of the offense. It need only be proved by the preponderance of the evidence, and the failure to prove venue does not negate the guilt of the defendant. The Gollihar construct does not apply to the issue here presented. We reject the State’s argument that it does.

Blankenship relies upon Black v. State, 645 S.W.2d 789, 791 (Tex.Crim.App.1983) for the proposition that when venue is made an issue in the trial court, the failure to prove venue constitutes reversible error. The failure to prove venue in Smith County as laid in the Black indictment resulted in a summary reversal of the conviction. Black has been repeatedly cited with approval, e.g., Edwards v. State, 97 S.W.3d 279, 285 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Sander v. State, 52 S.W.3d 909, 917 (Tex.App.-Beaumont 2001, pet. ref'd); Williams v. State, 924 S.W.2d 189, 191 (Tex.App.-Eastland 1996, pet. ref'd); Sixta v. State, 875 S.W.2d 17, 18 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); O’Hara v. State, 837 S.W.2d 139, 142-43 (Tex.App.-Austin 1992, pet. ref'd). In most cases citing Black, however, venue was proven as alleged by direct or circumstantial evidence or venue was presumed under Rule 44.2(c)(1) of the Texas Rules of Appellate Procedure. We have not found in recent cases a discussion of Black’s summary reversal approach.

Black was decided before the adoption of the Texas Rules of Appellate Procedure and its harmless error analysis provisions. Rule 44.2(a), (b) provide:

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Tex.R.App. P. 44.2(a), (b).

In Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997), the Court of Criminal Appeals wrote:

Except for certain federal constitutional errors labeled by the United States Supreme Court as “structural,” no error, whether it relates to jurisdiction, volun-tariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.... [A]p-pellate courts should not automatically foreclose the application of the harmless error test to certain categories of error. Where an error is shown to be harmless, it is not a ground for reversal, regardless of the category or label attached to that particular error.

Id. at 264.

It is clear that the failure to prove venue when the issue is raised at trial is now subject to a harm analysis rather than an automatic reversal of the conviction. Is the error in failing to prove venue in the instant case a constitutional or non-constitutional error for harm analysis purposes? We believe that Bath v. State, 951 S.W.2d 11 (Tex.App.-Corpus Christi 1997, pet. ref'd) answers the question:

The “vicinage” provision of the Sixth Amendment stipulates that in all criminal prosecutions, the accused shall be tried by an impartial jury of the State “and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....” U.S. Const., amend. VI. Neither federal nor state authorities, however, currently require application of this clause to state prosecutions. See Cook v. Morrill, 783 F.2d 593, 595 (5th Cir.1986); Martin v. Beto, 397 F.2d 741, 748 (5th Cir.1968), cert. denied, 394 U.S. 906, 89 S.Ct. 1008, 22 L.Ed.2d 216 (1969); State v. Paiz, 817 S.W.2d 84, 85 (Tex.Crim.App.1991); but see Paiz, 817 S.W.2d at 86 (assuming, arguendo, that it did apply). We therefore hold that no error in relation to the vicinage provision of the Sixth Amendment was. committed. in the transfer of appellant’s case from Webb to Nueces County. Point of error ten is overruled.

Id. at 19. See also Garza v. State, 974 S.W.2d 251, 259 (Tex.App.-San Antonio 1998, pet. ref'd).

We must determine the harm of the non-constitutional error on the basis of whether it affected Blankenship’s substantial rights. See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the-jury’s verdict or the fact-finder’s decision. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Rankin v. State, 995 S.W.2d 210, 215 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). A criminal conviction should not be overturned for non-constitutional error if the reviewing court, after examining the record as a whole, has a fair assurance that the error did not influence the fact-finder, or had slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); Lemmons v. State, 75 S.W.3d 513, 525 (Tex.App.-San Antonio 2002, pet. ref'd).

In our harm analysis, we examine certain factors which are not exclusive. See Orona v. State, 791 S.W.2d 125, 130 (Tex.Crim.App.1990). The source of the error was article 45.019(c) which mandatorily required the prosecution to allege the offense occurred within the territorial limits of the municipality. The nature of the error was the failure to prove venue as laid. Each complaint expressly referred to the State of Texas, Travis County, and the City of Austin. Each complaint contained a legal description of the property involved. The description placed the property outside the city limits but within the extraterritorial area of the city of Austin over which geographical area in Travis County the Austin Municipal Court of Record had sole criminal jurisdiction to try violations of certain city ordinances. Such legal description should have alerted Blankenship and given notice that the offenses concerning the property occurred outside the city. Blankenship’s counsel filed motions to quash the complaints on the basis of misallegation of venue. Counsel argued that if any witness testified the property was within the city limits, the witness would be guilty of perjury. The motions were overruled as being untimely filed. It does not appear Blankenship was misled by the improper venue allegation. The State’s witnesses and Blankenship all testified the property was outside the city limits. The State did not emphasize the error.

There is no showing that Blankenship was prevented from presenting a defense, including his own designated “1704” defense that the property had been “grandfathered in” by earlier law and was exempt from the application of city ordinances.

Further, holding the error harmless will not encourage the State to repeat with impunity. The State is burdened with article 45.019(c) until a legislative revision occurs. The issue of venue is not an element of the offenses alleged and falls outside the protection of the Double Jeopardy Clause. If there was a reversal here for the failure to prove venue as alleged, no prohibition exists against reprosecution. See Martin, 385 S.W.2d at 261; O’Hara, 837 S.W.2d at 143; 40 Dix § 2.83. A reversal would not accord Blankenship protection from a retrial.

An examination of the record as a whole in this bench trial gives us fair assurance that the error did not influence the trial judge. See Scaggs v. State, 18 S.W.3d 277, 290 (Tex.App.-Austin 2000, pet. ref'd).

Like the County Court at Law No. 1 of Travis County, we find that there was error in the failure to prove venue as laid, but unlike that court, we have performed a harm analysis and have concluded that the non-constitutional error is harmless. See Tex.R.App. P. 44.2(b).

The judgments of the County Court at Law No. 1 of Travis County are reversed and the causes are remanded to that court for consideration of Blankenship’s other points of error.

        . Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).

      . Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App.1988).

      . State v. Muller, 829 S.W.2d 805, 811-12 (Tex.Crim.App.1992).

      . Article 45.201 provides:
      (a) All prosecutions in a municipal court shall be conducted by the city attorney of the municipality or by a deputy city attorney.
      (b) The county attorney of the county in which the municipality is situated may, if the county attorney so desires, also represent the state in such prosecutions. In such cases, the county attorney is not entitled to receive any fees or other compensation for those services.
      (c) With the consent of the county attorney, appeals from municipal court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney or a deputy city attorney.
      (d)It is the primary duty of a municipal prosecutor not to convict, but to see that justice is done.
      Tex.Code Crim. Proc. Ann. art. 45.201 (West Supp.2004 — 05).

      . Article 45.019(c) (Requisites of Complaint) provides:
      A complaint filed in municipal court must allege that the offense was committed in the territorial limits of the municipality in which the complaint was made.
      Tex.Code Crim. Proc. Ann. art. 45.019(c) (West Supp.2004-05) (emphasis added). Act of May 30, 1999, 76th Leg., R.S., vol. 5, ch. 1545, § 16, 1999 Tex. Gen. Laws 5314, 5317.

      . In order to perfect an appeal from a municipal court of record, an appellant must file a motion for new trial setting forth "the points of error of which he complains.” See Tex. Gov’t Code Ann. § 30.00014(c) (West 2004).

      . A municipal court of record has criminal jurisdiction over misdemeanors punishable by a fine only. See Tex.Code Crim. Proc. Ann. arts. 4.01, 4.14 (West 2005); Tex. Gov't Code Ann. §§ 29.003(a), 30.00005(a), (b) (West 2004). It is observed that said section 30.00005(a), (b) provides a municipal court of record the jurisdiction provided by general law for a regular, non-record municipal court and jurisdiction over criminal cases arising under ordinance authorized by sections 215.072, 217.042, 34.1903, and 401.002 of the Texas Local Government Code. See generally Treadgill v. State, 160 Tex.Crim. 658, 275 S.W.2d 658 (App.1954).

      . The presumption is clearly not applicable in the instant case.

      . In Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001), the court created a dichotomy between federal and state review. See Smith v. State, 135 S.W.3d 259, 262 (Tex.App.-Texarkana 2004, no pet.). In Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002), the Court of Criminal Appeals recognized that the Gollihar standard was clearly not the same as the Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard of measuring evidence sufficiency against the substantive elements of the criminal offense as defined by state law.

      . "Vicinage” means "1. vincinity; proximity. 2. The place where the crime is committed, or a trial is held; the place from which jurors are to be drawn for trial use, the locale from which the accused is entitled to have jurors selected." Black’s Law Dictionary 7th ed. at 1561.


author: ANN CRAWFORD McCLURE, Justice.

text:
    A.G. EDWARDS & SONS, INC., Appellant, v. Maria Alicia BEYER, Appellee.
    No. 08-03-00495-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2005.

      Steven L. Hughes, Mounce, Green, Myers, Safi & Galatzan, El Paso, for Appellant.
    Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal arises from a failed attempt to create a joint tenancy with right of survivorship between a father and a daughter. A.G. Edwards & Sons, Inc. appeals from a judgment in favor of Maria Alicia Beyer. We modify the judgment and affirm as modified.

FACTUAL SUMMARY

In 1985, Maria Alicia Beyer and her father, Federico Beyer, created a joint account at A.G. Edwards & Sons, Inc. (AGE). This account was set up as a joint tenancy with rights of survivorship (JTWROS). In 1997, Beyer obtained permanent alien status which required her to pay taxes on the account. To avoid paying taxes, the account was converted into a single account held only in Mr. Beyer’s name. After Mr. Beyer suffered a stroke in October of 2000 which resulted in significant impairment, Beyer met with James Niemeier, Mr. Beyer’s investment broker at AGE, to discuss how she could gain access to Mr. Beyer’s account in order to pay his medical bills. Because Mr. Beyer could not speak due to the stroke, Niemeier informed Beyer that he could not help her.

Mr. Beyer later recovered his speech and on the morning of December 8, 2000, he instructed Beyer to phone Niemeier about the account. After Niemeier got on the line, Beyer handed the telephone to her father who instructed Niemeier to “put the account in [Ms. Beyer’s] name.” Mr. Beyer returned the phone to Beyer, and according to Beyer, Niemeier told her “that it’s good for you to have a joint account agreement with right of survivor-ship.” Niemeier informed Beyer that he was leaving the office early but she could pick up the required documents and return them to him before 4 p.m. that same day. Beyer went to AGE that same morning and met with Niemeier who filled out documents necessary to reflect the change to Mr. Beyer’s account. Niemeier completed the following documents: (1) a new account card which reflected the name of the account as “Maria Alicia Beyer or Federico V. Beyer JTWROS”; (2) a check-writing authorization form; (3) a request for taxpayer identification number and certification, which is a substitute for IRS W-9 form; and (4) a letter of authorization which reflected a change in ownership of the account from “Federico V. Beyer” to “Maria Alicia Beyer or Federico V. Beyer JTWROS.” Niemeier denied discussing how the joint account would be held and he listed the account as joint tenancy with right of survivorship “out of habit” since most joint accounts are opened as JTWROS. Beyer, on the other hand, testified that Niemeier explained to her what joint tenancy with right of survivorship meant and Niemeier set up the account in this manner based on his discussions with Mr. Beyer.

At Niemeier’s request, Beyer completed and signed a certificate of alien claiming residence in the United States. She also signed the request for taxpayer identification number. AGE’s document system reflects that the three documents signed by Beyer in AGE’s office (the new account card, the certificate of alien claiming residence, and the request for taxpayer identification number) were entered into AGE’s document system on December 13, 2000 and were scanned in St. Louis on December 20.

Beyer took three documents with her to obtain her father’s signature: (1) the letter of authorization form; (2) the check-writing authorization; and (3) the joint account agreement. Beyer and her father signed the documents in the presence of Mr. Beyer’s housekeeper, Nora Aldaba. Mr. Beyer discussed the documents with Beyer and understood that he was creating a joint account with her. Aldaba confirmed that Beyer returned from AGE with three documents but Aldaba could not read them because they were in English. Aldaba heard Beyer explain to Mr. Beyer that the effect of the documents was to transfer the account to Beyer. Over AGE’s objections, Beyer specifically testified that it was Mr. Beyer’s intent to create a joint tenancy with right of survivorship. Beyer did not make copies of the documents because she expected Niemeier to make copies for her, and she placed all three of them in an envelope and put it in her briefcase to return to AGE later that day. Shortly after 3:30 that afternoon, Beyer stopped at AGE and Aldaba carried the envelope inside. Aldaba asked for Niemeier but since he had already left the office, she left the envelope with the receptionist.

Beyer went to AGE about a week later to determine whether the joint account had been approved. At first, Niemeier could not find any of the documents returned by Beyer on December 8, but he then found them at the front desk and showed them to her. He advised Beyer that it would take a couple of days to process them. Sometime prior to December 18, Beyer received a telephone call from Niemeier advising that she had not signed the IRS W-9 form. He mailed her a new one and she signed it and returned it to AGE on December 18, 2000.

Niemeier recalled the events differently. He had forgotten Beyer had signed an IRS W-9 form on December 8, so he mailed her the second one. When Beyer called on December 18 and asked when she could begin writing checks on the account, Niemeier explained that she could begin writing checks as soon as she returned the documents. Beyer explained that she had already returned them. Niemeier called the main office in St. Louis and was told that they had not received the check-writing authorization, but he did not inquire about the joint account agreement or the letter of authorization. Niemeier then found a check-writing authorization document which had been received in his office that same day, December 18, 2000. Niemeier called Beyer and informed her that he had the check-writing authorization. AGE’s document system reflects that the second IRS W-9 form (dated December 18), the check-writing authorization (dated December 8), and the letter of authorization (dated December 8) were entered into the document system in El Paso on December 18 and were scanned in St. Louis on December 21, 2000. A joint account agreement was never entered into the AGE document system in El Paso and was not located in either the El Paso branch office or the main office St. Louis. Ordinarily, when a joint account agreement is missing, the AGE computer system automatically sends a wire to the branch office ten days after the account is opened. A wire was sent to the El Paso office on December 27 notifying them that the joint account agreement was missing, but Niemeier apparently did not read the wire. That same day, AGE sent a letter to Mr. Beyer stating:

This will confirm that we received and are processing your request to transfer assets from your account according to your written instructions, a copy of which is attached. If the transfer is correct you do not need to do anything. ...

Attached to the letter was a copy of the letter of authorization, dated December 8, 2000, reflecting Mr. Beyer’s requested change of ownership to the account with a right of survivorship. On December 29, the St. Louis office generated a delinquent document report regarding the missing joint account agreement but it was not received by the El Paso branch prior to the time Mr. Beyer lapsed into a coma on December 31, 2000. He never regained consciousness and died intestate on January 9, 2001.

Prior to Mr. Beyer’s death, Beyer wrote checks on the joint account to pay Mr. Beyer’s medical bills and those checks were honored. Near the end of December, Beyer received a statement from AGE reflecting the name on the account as Maria Alicia Beyer and Federico V. Beyer, joint tenants with right of survivorship. Approximately two weeks after her father’s death, Beyer went to AGE and asked Niemeier to close the joint account and open an account in only her name. She signed a letter of authorization requesting a transfer of the funds to an individual account. In early February, Niemeier called Beyer and informed her that there was a problem with the account because one of the documents was missing. He assured her they would look for it but asked that she not write any more checks on the account. At a later date, Niemeier later called Beyer to inform her they could not find the joint account agreement. On March 23, 2001, AGE notified Beyer by letter that it did not have a signed joint account agreement on file for the account, and therefore, it could not be determined whether the account was joint tenancy with right of survivorship, tenancy in common, or tenancy of the entireties. AGE froze the account until ownership of the account could be determined and advised Beyer that if ownership could not be ascertained, it would interplead the assets into court. Beyer filed a negligence suit against AGE and Niemeier on May 4, 2001. Almost two years later, on February 11, 2003, AGE deposited the account funds in the amount of $1,185,807.24 in federal court in El Paso. AGE deposited an additional $916.01 on June 6, 2003 for a total of $1,186,723.25. Beyer’s five siblings disputed her claim to the balance of the account. Due to the absence of the joint account agreement indicating joint tenancy with right of survivorship, Beyer entered into an agreement with her siblings that the funds would pass to each of the six heirs equally. Consequently, each heir, including Beyer, received $197,787.21.

Beyer amended her suit against AGE and Niemeier to allege conversion, negligence, fraud, negligent misrepresentation, breach of contract, and breach of fiduciary duty. She sought damages of $988,986.04, representing the difference between the amount she actually received and the amount she would have received had the defendants properly set up the account as joint tenancy with right of survivorship. Beyer subsequently non-suited her claims against Niemeier. The jury found in favor of Beyer on all six theories of liability submitted, including breach of contract, and awarded damages in the amount of $791,200. In connection with the breach of contract claim, the jury also awarded attorney’s fees: for preparation and trial— $225,000; for appeal to the Court' of Appeals — $28,000; and for appeal to the Supreme Court of Texas — $25,000. Beyer elected to recover under her contract cause of action and the trial court entered judgment based on the jury’s verdict.

EXTRINSIC EVIDENCE OF INTENT TO CREATE A RIGHT OF SURVIVORSHIP

In its first issue, AGE contends the trial court improperly admitted and gave probative value to extrinsic evidence of Mr. Beyer’s intent to create a joint tenancy with right of survivorship. At trial, AGE objected that the evidence was barred by Section 439(a) of the Texas Probate Code, the parol evidence rule, and Rule 601(b) of the Texas Rules of Evidence. AGE also objected to the evidence as hearsay. The trial court overruled these objections and rejected AGE’s request for a limiting instruction.

Section 439(a)

AGE first argues that extrinsic evidence of Mr. Beyer’s intent to create a joint tenancy with right of survivorship is prohibited by Section 439(a) of the Texas Probate Code.

(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent if, by a written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party or parties. Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states in substantially the following form: ‘On the death of one party to a joint account, all sums in the account on the date of the death vest in and belong to the surviving party as his or her separate property and estate.’ A survivorship agreement will not be inferred from the mere fact that the account is a joint account.

Tex.PROB.Code Ann. § 439(a)(Vernon 2003).

The Texas Supreme Court has held that the written agreement described in Section 439(a) is the exclusive means of creating a JTWROS. Stauffer v. Henderson, 801 S.W.2d 858, 862-64 (Tex.1990). In its absence, extrinsic evidence of the decedent’s intent to create a JTWROS is inadmissible to prove rights of survivor-ship. Id. at 865. The statute’s prohibition against extrinsic evidence applies only to a claim of survivorship being made “against the estate of the decedent.” See TexPeob. Code § 439(a). Further, Section 437 of the Probate Code provides:

The provisions of Sections 438 through 440 of this code that concern beneficial ownership as between parties ... are relevant only to controversies between these persons and their creditors and other successors.

Tex.PROb.Code Ann. § 437.

It is undisputed that Section 439 governs beneficial ownership as between parties. See Stegall v. Oadra, 868 S.W.2d 290, 291 n. 3 and 292 (Tex.1993)(noting that Section 439 governs beneficial ownership upon the death of a party to the account). Because AGE is not a “party” to the joint account between Beyer and Mr. Beyer, and it is not a creditor or successor, Beyer argues that Section 439(a)’s prohibition of extrinsic evidence is inapplicable. In response to this argument, AGE cites three cases in which Section 439 has been applied to cases involving financial institutions. As we will explain, none of the three is applicable here.

In MBank Corpus Christi, N.A. v. Shiner, 840 S.W.2d 724 (Tex.App.-Corpus Christi 1992, no writ), the heirs of a joint account holder brought a breach of contract claim against MBank because it paid the account funds to the joint account holder after the death of the other joint account holder. The contract for the account did not designate it a joint tenancy with a right of survivorship. The funds were withdrawn on the same date that the heirs filed a death certificate with the bank. Id. The heirs alleged that pursuant to Section 439(d) of the Probate Code, the funds in the account became their property upon the decedent’s death and the bank was liable to them for paying the funds to the joint account holder. The trial court denied MBank’s motion for summary judgment and granted summary judgment in favor of the heirs. The court of appeals reversed and rendered judgment in favor of MBank, holding that MBank paid the funds to the joint account holder in accordance with Section 445 of the Probate Code. Id. at 726-27. Since the heirs did not instruct MBank in writing that it should not allow the joint account holder to withdraw the funds, MBank was protected from liability by virtue of Section 448 of the Probate Code. Id. MBank is distinguishable. The court of appeals actually applied sections 445 and 448 and only tangentially mentioned Section 439(a) in stating that there was no joint right of surviv-orship created by a written agreement. Contrary to AGE’s claim, Section 439(a) was not applied in favor of the financial institution.

In Parker v. JPMorgan Chase Bank, 95 S.W.3d 428 (Tex.App.-Houston [1st Dist.] 2002, no pet.), the decedent opened two investment accounts at the bank. The account receipts indicated that the accounts were payable on death (P.O.D.) and described Parker as the primary beneficiary. The decedent did not sign the written agreement to establish a P.O.D. account. Following the decedent’s death, Parker attempted to collect the proceeds of the two accounts but was instructed that she was required to furnish a copy of the death certificate. Before Parker returned, the executrix delivered letters testamentary to the bank, withdrew the proceeds, and closed the accounts. Initially, the bank believed the funds had mistakenly been paid to the executrix and it filed an action to recover the funds. Upon discovering that the P.O.D. agreement had not been signed, the bank non-suited its action against the executrix. Parker then sued the bank to recover the funds. The bank moved for summary judgment on the ground that the decedent failed to sign the required P.O.D. agreement. Parker relied on the bank’s judicial assertions that a P.O.D. account had been created to resist summary judgment. The trial court granted summary judgment for the bank. The court of appeals affirmed, holding that it could not consider the bank’s judicial assertions because Section 439(a) required it to look exclusively at the P.O.D. agreement to discern whether a P.O.D. account had been created. Parker, 95 S.W.3d at 431. This case is also distinguishable. First, Parker did not raise the argument regarding Section 437. Of more significance, Parker asserted ownership of the funds and alleged that the financial institution had wrongfully paid the funds to someone else. In contrast, Beyer does not allege that she owns the funds or that AGE paid the funds to the wrong person and she has not attempted to prove that the new account card or other documents are sufficient to constitute a written agreement establishing a right of survivorship. In fact, she concedes that AGE could not lawfully pay the funds to her because it lost the joint account agreement which would have established a right of survivor-ship. For that reason, she entered into an agreement with her siblings to divide the account funds in the manner required by law. Beyer instead alleges that AGE, by losing the agreement signed by both Mr. Beyer and herself, breached its agreement to create a joint account between Mr. Beyer and Beyer with a right of survivorship. As a result of that breach, Beyer could not assert ownership in the funds and suffered monetary damages.

Finally, AGE cites Pressler v. Lytle State Bank, 982 S.W.2d 561 (Tex.App.-San Antonio 1998, no pet.) as another example where Section 439(a) has been applied in a case involving a financial institution. There, a bank filed a declaratory judgment action to determine' whether funds in an account were owned by the estate of the deceased or by a family friend who was a signatory on the account. A jury found that an “x” found in a box labeled “Joint— With Survivorship” on the signature card was not placed on the signature card by the decedent or with his consent and the court entered judgment declaring the funds to be the property of the estate. "The court of appeals held that Section 439(a) requires a party to introduce a written agreement signed by the deceased joint account party in order to establish that an account was a joint account with right of survivorship. Id. at 564. The court of appeals found the evidence sufficient and affirmed the judgment. Id. at 565. Like the Parker case, the central dispute in this case was ownership of the funds in the account. Beyer does not allege that she owned the funds in the account. Therefore, the case is inapplicable. Applying Section 437 to this unique dispute, we hold that AGE is not permitted to use Section 439(a) as a shield to Beyer’s contract and tort claims.

Parol Evidence

AGE next contends that the evidence of Mr. Beyer’s intent is inadmissible because it violates the parol evidence rule. This rule provides that, in the absence of fraud, accident, or mistake, extrinsic evidence is not admissible to vary, add to, or contradict the terms of a written instrument that is facially complete and unambiguous. National Union Fire Insurance Company v. CBI Industries, Inc., 907 S.W.2d 517, 521 (Tex.1995). The parol evidence rule applies only to contractual writings evidencing the creation, modification, termination or securing of a particular right or obligation. Gannon v. Baker, 818 S.W.2d 754, 755-56 (Tex.1991). AGE complains that the trial court allowed evidence of the contractual writing creating an account with rights of survivorship. Beyer responds that since the written joint account agreement has been lost, the parol evidence rule is inapplicable. She maintains that the “lost document” rule governs admission of this evidence. Where a written, signed contract is lost or destroyed, its existence and terms may be shown by clear and convincing parol evidence. See Bank of America, N. A v. Haag, 87 S.W.3d 55, 58 (Tex.App.-San Antonio 2000, no pet.); EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 n. 1 (Tex.App.-Corpus Christi 1994, writ denied).

In Bank of America v. Haag, Thomas Haag opened a “trustee type account” at University Savings for his son’s future education. Haag was the only signatory on the account and he was told that his son could not withdraw any money from it without Haag’s signature. University Savings went into receivership and NCNB purchased its assets. NCNB changed its name to NationsBank and later to Bank of America. All of University Saving’s records were converted into Bank of America’s records. During this process, Bank of America did not input the information into its system from the signature cards but instead relied on information reported to it by University Saving’s system. For unknown reasons, NationsBank changed the name on the account to read “Eric J. Haag or Thomas P. Haag” but Eric never signed an authorization/signature card for the account. Bank of America permitted Haag’s son to withdraw all of the money in the account because the bank showed it as a joint account. Haag brought various causes of action against the bank. The trial court found in favor of Haag. On appeal, the bank argued that the account statements sent to Haag showing the name on the account as “Eric J. Haag or Thomas P. Haag” constituted an unambiguous written agreement which the parol evidence rule prohibits from being contradicted or varied by extrinsic evidence. The court of appeals held that the account statements did not evidence the creation of the account but were a record of information transferred to the bank’s system and were not the operative legal document that created the account. Hang, 37 S.W.3d at 58. Since the signature card which evidenced the terms of the agreement between University Savings and Haag was not admitted into evidence, the trial court did not err in admitting Haag’s testimony regarding the terms of the account. Id.

AGE seeks to distinguish Bank of America v. Haag by arguing that, unlike the present case, there is no statute requiring a written agreement to establish the type of account. Regardless of whether a written agreement was statutorily required, a written agreement did exist in Haag but was not produced at trial. Consequently, Haag was permitted to establish the terms of the written agreement, i.e., the signature card, by clear and convincing parol evidence. Applying the “lost document” rule to the instant case, the jury impliedly found that AGE lost the joint account agreement. Thus, Beyer is permitted to prove the terms of the agreement by clear and convincing evidence.

Even if AGE is correct that the “lost document” rule does not apply, there are other reasons the parol evidence rule is inapplicable. The jury found that AGE agreed to open a joint account for the Beyers as a JTWROS and that it breached the agreement. AGE’s agreement to open the account for the Beyers is reflected in the various documents admitted at trial, including the new account card. The evidence supports a conclusion that AGE breached the agreement by fading to secure the joint account agreement, particularly after being placed on notice by the main office that it was missing. The agreement which AGE breached was not the lost joint account agreement, but rather the agreement to open a joint account with rights of survivorship. Under this view of the evidence and the jury’s findings, AGE’s complaint that Beyer offered parol evidence to vary or contradict the terms of the joint account agreement is without merit. For all of the foregoing reasons, the trial court did not abuse its discretion in overruling objections to extrinsic evidence of the terms of the joint account agreement and Mr. Beyer’s intent to create a joint account with right of survivorship. Issue One is overruled.

EFFECT OF BEYER’S AGREEMENT TO DIVIDE FUNDS WITH SIBLINGS

In Issue Two, AGE asserts that Beyer effectively waived her causes of action against it by agreeing to divide equally with her siblings the funds which AGE had interpleaded in federal court. It argues that Beyer voluntarily gave up the funds which she now seeks from AGE. AGE also contends that Beyer failed to prove that, as the administrator of Mr. Beyer’s pending estate in Mexico, she could not obtain a ruling from the Mexican probate court that she is entitled to all of the funds.

Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 643 (Tex.1996); Labrado v. County of El Paso, 132 S.W.3d 581, 594 (Tex.App.-El Paso 2004, no pet.). Because waiver is an affirmative defense, the defendant bears the burden of pleading and proving it. Tex.R.Civ.P. 94; Labrado, 132 S.W.3d at 594. The elements of waiver include the following: (1) existing right, benefit, or advantage; (2) actual or constructive knowledge of its existence; (3) an actual intent to relinquish the right (which can be inferred from the conduct). Tenneco, 925 S.W.2d at 643. Ordinarily, the issue of waiver is a question of fact. Id. Where facts are clearly established and are undisputed, however, waiver becomes a question of law. Id.

In order to establish its waiver defense, AGE had the burden to prove that Beyer had a right to all of the funds in federal court; (2) Beyer knew she could prove her entitlement to those funds; and (3) she intended to relinquish that right by sharing the funds with her siblings. But the absence of the joint account agreement legally precluded Beyer from asserting ownership of the funds against her siblings as heirs of her father’s estate. Consequently, Beyer’s agreement to share the funds with her siblings does not operate as an intentional waiver of a known right.

With respect to the claim that Beyer failed to assert her rights in the Mexican probate court, AGE, not Beyer, had the burden to prove that under Mexican law, Beyer was entitled to all of the account funds. AGE is also charged with proving Beyer knew she could establish her entitlement to all of the account funds under Mexican law, and with this knowledge, she instead chose to share the funds with her siblings. AGE cites to no evidence in the record conclusively proving these elements. Further, it has not provided any authority demonstrating that Beyer was entitled to the account funds under Mexican law. Issue Two is overruled.

ATTORNEY’S FEES

AGE’s final two issues relate to the attorney’s fee awards. In Issue Three, AGE complains that because Beyer failed to segregate attornéy’s fees between her tort and contract causes of action, she is not entitled to attorney’s fees as a matter of law. It argues the jury’s award of $225,000 for preparation and trial should be reversed and remanded for a determination of the amount attributable to the contract cause of action.

Beyer was entitled to recover attorney’s fees on her contract claim pursuant to Tex.Civ.PRAC. & Rem.Code Ann. § 38.001 (Vernon 1997). Attorney’s fees are not recoverable in tort actions. Z.A.O. Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 550 (Tex.App.-El Paso 2001, no pet.). As a general rule, a party seeking attorney’s fees must show that the fees were incurred on a claim that allows recovery of such fees, and thus is ordinarily required to segregate fees incurred on claims allowing recovery of fees from those that do not. Stewart Title Guaranty Company v. Aiello, 941 S.W.2d 68, 73 (Tex.1997); Stewart Title Guaranty Company v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). Segregation is not required, however, if the claims arise out of the same transaction and are so interrelated that their prosecution or defense requires proof or denial of essentially the same facts. Sterling, 822 S.W.2d at 11; Z.A.O., 50 S.W.3d at 550. When causes of action involved in a suit are dependent upon the same set of facts or circumstances and thus are intertwined to the point of being inseparable, the party suing for attorney’s fees may recover the entire amount covering all claims. Sterling, 822 S.W.2d at 11. The determination of whether attorney’s fees can be segregated between various claims or defenses is a question for the court. Aetna Casualty & Surety v. Wild, 944 S.W.2d 37, 41 (Tex.App.-Amarillo 1997, writ denied).

Our review of the record indicates that the same transaction gives rise to all of Beyer’s claims which were contingent upon proof of the same fact: an agreement between the parties that the account would be opened and maintained as a joint tenancy with rights of survivorship. The factual basis for the contract claim is inseparably intertwined with Beyer’s tort claims. Beyer’s contract claim is based on evidence that AGE agreed to open a joint account with rights of survivorship but failed to do so, resulting in damages to Beyer. AGE’s agreement to open the joint account with rights of survivorship gives rise to its duty to exercise reasonable care to open and maintain the account as agreed. AGE’s promises which formed the basis of the contract are the same representations upon which Beyer relied, giving rise to her fraud and negligent misrepresentation causes of action.

AGE also takes issue with the attorney’s fees award because it included time and fees expended in the federal interpleader action. Beyer’s attorney’s fees expert, Mark Pierce, testified that the two proceedings were related. When AGE inter-pleaded the account funds, it sought both interpleader relief and injunctive relief against the state court proceeding. AGE then sought abatement of the state court proceeding based on the interpleader action. The federal court subsequently determined that AGE was not entitled to interpleader relief and dismissed the inter-pleader action, yet it did not award attorney’s fees to Beyer because the court agreed with AGE’s argument that Beyer had already been awarded attorney’s fees in the state court proceeding. After reviewing the record, we conclude that the trial court did not err in determining that Beyer’s contract claims were inextricably intertwined with her tort claims. See Pegasus Energy Group, Inc. v. Cheyenne Petroleum Company, 3 S.W.3d 112, 131 (Tex.App.-Corpus Christi 1999, pet. denied) (holding segregation of attorney’s fees not required because contract, fraud, negligent misrepresentation, and fraud in the inducement claims arose from same transaction and entailed proof of same facts). Issue Three is overruled.

In Issue Four, AGE argues that the judgment is incorrect because it makes an unconditional award of appellate attorney’s fees to Beyer. We agree. A trial court may not grant a party an unconditional award of appellate attorneys’ fees. Texas Farmers Insurance Company v. Cameron, 24 S.W.3d 386, 400 (Tex.App.Dallas 2000, pet. denied); Humble National Bank v. DCV, Inc., 933 S.W.2d 224, 236 (Tex.App.-Houston [14th Dist.] 1996, writ denied). To do so could penalize a party for pursuing a meritorious appeal. Texas Farmers Insurance Company v. Cameron, 24 S.W.3d at 400. Issue Four is sustained. We modify the judgment to condition the appellate attorney’s fees on an unsuccessful appeal by AGE. The judgment, as so modified, is affirmed.