text:
    Leon David LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00654-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 18, 2004.
    Discretionary Review Granted June 15, 2005.

      David Alan Disher, Houston, for appellant.
    B. Warren Goodson, Jr., Assistant District Attorney, Galveston, for appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

Leon David Lee, appellant, pleaded not guilty to indecency with a child. The jury found him guilty and found two enhancement paragraphs true. The jury assessed punishment at 25 years’ confinement. In three points of error, appellant contends that (1) the evidence is factually insufficient to support his conviction; (2) the trial court erred in permitting the State to ask improper commitment questions during voir dire on the one-witness rule; and (3) the trial court erred in admitting evidence concerning appellant’s bond jumping as an inference of guilt during the guilt-innocence stage of trial. We affirm.

BACKGROUND

In the fall of 2001, Alice Copelin and her then six-year-old daughter, B.C., the complainant, began living with her mother, Marsha Wilson, and appellant, who Wilson later married. During this time, appellant and Wilson watched B.C. in the evenings and nights while Copelin was at work. Two months after moving in with appellant and Wilson, Copelin noticed changes in B.C.’s behavior, including severe nightmares, sleepwalking, and excessive masturbation. When Copelin asked B.C. if appellant had ever touched her or done anything harmful to her, she answered that he had. B.C. told Copelin that appellant had rubbed and squeezed “her private area, her groin area.” In November 2001, a registered nurse at the Atlanta Memorial Hospital in Atlanta, Texas, performed a medical examination on B.C. Copelin also took B.C. to the Texarkana Children’s Advocacy Center where Shanon Tifton, an employee of the center, video-recorded an interview with B.C.

Appellant was charged with indecency with a child. See Tex. Pen.Code. Ann. § 21.11 (Vernon 2003). Gulf Coast Bail Bonds posted bond for appellant’s release pending his trial. Trial was first set for October 28, 2002, a date of which appellant was notified by an employee of the bonding company. However, appellant stopped checking in with the bonding company’s employees on October 25, 2002, three days before the trial date. The last contact appellant had with the bonding company was by telephone from a Florida area code. On February 5, 2003, appellant was in custody in Florida on felony bond forfeiture after a warrant had been issued for his arrest. On February 16, 2003, Officer R. Friedley of the Galveston County Sheriffs Department flew to Florida and extradited appellant from Florida to Texas for trial.

At trial, B.C. testified regarding several incidents where she was touched by appellant. In addition, the State presented video testimony of B.C. being questioned at the Texarkana Children’s Advocacy Center. The video was taken shortly after B.C. made outcry statements to her mother, Copelin, and her grandmother, Wilson. Copelin and Wilson also testified for the State regarding the outcry statements B.C. made to each of them separately.

Factual Sufficiency of the Evidence

In his first point of error, appellant asserts that the evidence was factually insufficient to support his conviction. We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). The Court of Criminal Appeals has recently discussed the factual-sufficiency standard:

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

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). We must consider the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Appellant contends the evidence is factually insufficient because (1) B.C. was unable to say exactly where she was touched by appellant; (2) no direct evidence put appellant in violation of the Texas Penal Code when B.C. used the term “private” to indicate where she was touched, but the term was never defined at trial; (3) the case was predicated on only one witness, the complaining witness, B.C.; (4) B.C.’s videotaped testimony contained suggestive questions and contradictory responses; and (5) Dr. Lukifer’s testimony consisted of reading the medical history that contained only hearsay and no physical evidence.

In order to prove the offense alleged in the indictment incorporated in the court’s instruction to the jury, the State was required to prove beyond a reasonable doubt that the defendant, with intent to arouse or gratify his sexual desire, engaged in sexual contact with a child, and that the victim was then a child younger than seventeen and not the spouse of the defendant. See Tex. Pen.Code. Ann. § 21.11(a) (Vernon 2003). For the offense of indecency with a child, “sexual contact,” in relevant part, is defined as “any touching by a person, including through clothing, of the anus, breast, or any part of the genitals of a child.” See Tex. Pen.Code. Ann. § 21.11(c)(1) (Vernon 2008).

At trial, B.C. testified that appellant “touched me where he is not supposed to.” Specifically, she testified that appellant had touched her on the “bottom private” part of her body, which she indicated was below her waist. However, she could not remember if it was her front or back “private.” In her videotape testimony, she indicated where appellant touched her by circling the area below her waist and between her legs on an anatomically correct frontal drawing of a girl and calling it her “titi.” B.C. stated that appellant touched her with his hand and that it happened on more than one occasion. In addition to her testimony, B.C.’s mother, Copelin, testified that B.C. pointed to “her private area, her groin area” in “the front” when asked where she had been touched by appellant. According to the records of B.C.’s medical examination at Atlanta Memorial Hospital, B.C. explained to the nurse what happened with appellant: “Papa touched me in my privates. He touched my tootie. He touched me with his hands. He squeezed. He rubbed it.”

The courts liberally construe the testimony given by child victims of sexual abuse as not being as clear as that which may be given by an adult. See, e.g., Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990) (cannot expect child victims of crime to communicate with ability and clarity of mature adult); Guia v. State, 723 S.W.2d 763, 765 (Tex.App.-Dallas 1986, writ ref’d) (being touched where one “uses the restroom” sufficient for sexual contact). As long as the child communicates to the trier of fact that the touching occurred on a part of the body within the definition of the statute, the evidence will be sufficient. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977) (reaffirmed rule that “evidence [is] sufficient to show a touching of the genitals or ‘sexual parts’ even though the victim used language different from that in the statute to describe the part of the body touched”); Guia, 723 S.W.2d at 766; Bellfey v. State, 638 S.W.2d 48, 51 (Tex.App.-Houston [1st Dist.] 1982, no writ) (phrase “his you know what” was sufficient to describe appellant’s penis, citing to testimony by other witnesses that, shortly after the attack, complainant stated that appellant stuck “something in the complainant’s butt”). Given the testimony of both B.C. and Copelin, we find that the evidence was sufficient to show that the touching occurred in a place within the statutory definition of sexual contact. See Tyra v. State, 534 S.W.2d 695, 697 (Tex.Crim.App.1976), overruled on other grounds, Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App.1982) (testimony that accused put his hands “between my legs” sufficient to support indictment alleging accused touched vagina); Thomas v. State, 399 S.W.2d 555, 556 (Tex.Crim.App.1966) (testimony that accused touched complainant’s “private” and “where I pee” sufficient to sustain allegation that accused touched child’s vulva).

Although appellant complains that the case was predicated mainly on the testimony of the complaining witness, B.C., which appellant claims contained contradictory responses, this does not make the evidence insufficient. The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp.2004-2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref’d).

In support of his assertion that B.C.’s videotaped testimony contained suggestive questions and contradictory responses, appellant only cites the following exchange:

[Shanon Tifton]: Where were you when grandpa touched you?
[B.C.]: On the couch.
[Shanon Tifton]: Was your mommy home?
[B.C.]: Yes, mama, mo, and Autumn.
[Shanon Tifton]: Were they in kitchen?
[B.C.]: No. Autumn can’t cook.
[Shanon Tifton]: Was Autumn in living room when it happened?
[B.C.]: No. Autumn was in kitchen.

The determination of what weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). Thus, the jury was free to believe all or any part of the testimony of the State’s witnesses, and disbelieve all or any part of the witness testimony. A court of appeals must show deference to such a jury finding. Id. at 409. The jury found B.C.’s testimony credible, despite the contradictions in the exchange quoted above.

Appellant’s claim that the evidence is rendered insufficient by the State’s use of Dr. Lukifer’s testimony regarding B.C.’s medical history because it contained no physical evidence is also without merit. The testimony of a single eyewitness is sufficient to support a felony conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). Dr. Lukifer’s testimony established that the interview of B.C. conducted by a registered nurse at Atlanta Memorial Hospital, and contained in the medical records that Dr. Lukifer referred to in his testimony, followed the same protocol used at medical facilities throughout Texas. The lack of physical or forensic evidence is a factor for the jury to consider in weighing the evidence. See Johnson v. State, No. 01-03-00319-CR, 176 S.W.3d 74, 78, 2004 WL 1472064 at *3 (Tex.App.-Houston [1st Dist.] July 1, 2004, no pet.). The State is permitted to put on such evidence to prove its case, even if it is not physical evidence. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

Examining all of the evidence neutrally, we conclude that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that it greatly outweighed the proof of guilt. Accordingly, we overrule appellant’s first point of error.

Commitment Question

In his second point of error, appellant contends that the trial court erred in permitting the State to improperly commit veniremembers during voir dire regarding their ability to convict on the testimony of one witness and granting the State’s six motions to strike for cause for veniremembers who answered in the negative. The question the State asked in the present case contained hypothetical facts about a trial for indecency with a child where the victim, the only testifying witness at trial, was a child under the age of seventeen who was out jogging by herself when someone came up to her and, with the intent to arouse or gratify his sexual desire, either touched her breasts or genitals. Appellant complains that the State improperly committed prospective jurors to convict based upon the following question: Could you reach a guilty verdict based on the testimony of one witness who you believed beyond a reasonable doubt?

A. Standard of Review

The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002). Therefore, appellate courts should not disturb a trial court’s ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Id.

B. Analysis of the Questions

In Standefer v. State, the Texas Court of Criminal Appeals articulated a three-prong test for determining whether a voir dire question calls for an improper commitment. 59 S.W.3d 177, 179-82 (Tex.Crim.App.2001). The first prong of the test requires trial courts to determine whether a particular question is a commitment question. Id. at 179. If the court determines that a particular question is a commitment question, then the court must decide whether the question gives rise to a valid challenge for cause. Id. at 181-82. If the question meets the “challenge for cause” requirement, then the court must determine whether the question includes only those facts necessary to test whether a prospective juror is challengeable for cause. Id.

1. Prong One: Were the State’s Questions “Commitment Questions”?

A commitment question is a question that “commit[s] a prospective juror to resolve, or to refrain from resolving, an issue in a certain way after learning a particular fact.” Id. at 179. Commitment questions that attempt to bind prospective jurors to a position, using a hypothetical or otherwise, are improper and serve no purpose other than to commit the jury to a specific set of facts before the presentation of any evidence at trial. Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App.1997). However, as acknowledged by the Texas Court of Criminal Appeals, the rule prohibiting the use of commitment questions during voir dire is easily stated, but not necessarily easily applied. Standefer, 59 S.W.3d at 179. In Lydia v. State, the court of criminal appeals recently clarified the scope of the “commitment question” rule, holding that the question, “Do each of you feel as though you could evaluate a witness and his testimony and decide if he’s being truthful without automatically dismissing his testimony because of some criminal history?” was a commitment question. 109 S.W.3d 495, 498-99 (Tex.Crim.App.2003). The court reasoned that the question attempted to commit the prospective jurors to resolve the issue of witness credibility based on a particular fact — the witness’s criminal history. Id. at 499.

In the present case, the State's question required prospective jurors to resolve the issue of whether they could convict a defendant based solely upon the testimony of one witness. Therefore, pursuant to the reasoning set forth in Lydia, the question posed by the State was a commitment question because it required prospective jurors to commit to convict a defendant or to resolve issues concerning witness credibility under a particular set of facts — the testimony of only one witness. Id. at 499; see also Standefer, 59 S.W.3d at 180 (holding that question “Could you consider probation in a case where the victim is a nun?” was a commitment question). However, whether the questions were proper requires further inquiry to determine if each question could give rise to a valid challenge for cause.

2. Prong Two: Did the State’s Questions Lead to Valid Challenges?

The primary objective of voir dire examination is to assemble a “competent, fair, impartial, and unprejudiced jury to judge the facts of the case.” Staley v. State, 887 S.W.2d 885, 896-97 (Tex.Crim.App.1994). Accordingly, the Texas Code of Criminal Procedure allows either side to challenge a juror for cause when the challenging side can show the juror is incapable or unfit to serve on the jury. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp.2004-2005). A prospective juror may be challenged for cause if he possesses a bias or a prejudice in favor of or against the defendant that prevents him from impartially judging the credibility of a witness. Id. art. 35.16(a)(9). However, a prospective juror is not challengeable for cause based on bias simply because he would be more skeptical of a certain type of witness. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App.1998). A challenge for cause based on bias is proper only if a prospective juror harbors an automatic predisposition toward one view of witness credibility because of knowledge of a certain fact about the witness. See, e.g., Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App.1978) (op. on reh’g) (holding that prospective juror is challengeable for cause because he did not believe a police officer would ever lie on the stand); Edwards v. State, 882 S.W.2d 493, 495 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (recognizing that prospective juror is chal-lengeable for cause if he indicates that he would automatically disbelieve the testimony of a witness shown to have previously lied).

In the present case, the State inquired as to whether any of the prospective jurors could convict a defendant based on the testimony of only one witness if they believed that witness beyond a reasonable doubt. The State may challenge a juror for cause when the juror would hold the State to a higher standard than “beyond a reasonable doubt.” Coleman v. State, 881 S.W.2d 344, 360 (Tex.Crim.App.1994). Consequently, a prospective juror is properly subject to challenge for cause if he indicates that he could not convict based on the testimony of one witness, even if he believed that witness beyond a reasonable doubt. See Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App.1995). However, a prospective juror is not challengeable for cause merely for setting his or her threshold for reasonable doubt higher than the minimum required by law, e.g., a prospective juror who would require the testimony of more than one witness in order to be convinced beyond a reasonable doubt. See id. In the present case, the State was entitled to inquire about whether a prospective juror could abide by the standard of proof set by the law or if the juror would hold the State to a higher standard. See id. at 534-35. A negative response to the question posed by the State would properly give rise to a valid challenge for cause. See id. at 533; Har ris v. State, 122 S.W.3d 871, 881 (Tex.App.-Fort Worth 2003, pet. ref’d) (holding three commitment questions proper, including question wherein State asked, “How many people if selected on the jury could not find somebody guilty based upon the testimony of just one witness, even if they believed that one witness beyond a reasonable doubt?”).

Because we have determined that a negative answer to the State’s commitment question would lead to a proper challenge for cause, we proceed to the third prong of Standefer.

3. Prong Three: Did the State’s Question Include Only Necessary Facts?

Even if the State’s question meets the challenge-for-cause requirement, the question may be improper if it includes facts in addition to those necessary to establish a challenge for cause. Standefer, 59 S.W.3d at 182. The Standefer Court referenced Atkins v. State as a decision for which a voir dire question impermissibly supplied more facts than necessary to sustain a challenge for cause. Id. In Atkins, the State asked the prospective jurors the following question: “If the evidence, in a hypothetical case, showed that a person was arrested and they [sic] had a crack pipe in their [sic] pocket, and they [sic] had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that—.” 951 S.W.2d at 789. The key to understanding Atkins and the third prong of Standefer is that the hypothetical used by the State in Atkins contained too many case-specific facts. Id. at 789-90; Standefer, 59 S.W.3d at 182. The Texas Court of Criminal Appeals stated that, although the State could have permissibly questioned the jurors on their ability to follow a law that holds a person guilty of possession even if the possession involved only a residue amount, the use of non-necessary facts supplied by the State— arrest, possession, crack pipe, item found in defendant’s pocket — rendered the question an improper commitment question. See id. at 789-90. The court reasoned that the question as posed by the State served “no purpose other than to commit the jury to specific set of facts prior to the presentation of any evidence at trial.” Id. at 789.

In the present case, the State’s question did not attempt to commit the prospective jurors in conjunction with specific facts of the case as in Atkins. Here, the question was not unnecessarily fact intensive, but only included those facts necessary to determine whether a prospective juror was challengeable for cause. The State’s hypothetical fact-pattern that set up the alleged commitment question at issue contained two facts similar to the case at bar — the fact that the offense alleged was indecency with a child and the fact that the victim was a minor under the age of seventeen. However, both these facts, the offense alleged and the approximate age of the victim, were necessary for the hypothetical question to be useful in ascertaining the views of the prospective jurors on an issue pertinent to a fair determination of the case, the issue of whether jurors could convict based on the testimony of one witness they believed beyond a reasonable doubt. The use of a hypothetical fact situation during voir dire is permissible if it is used “to explain the application of the law.” Atkins, 951 S.W.2d at 789 (quoting Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex.Crim.App.1987), overruled on other grounds by, Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Crim.App.1992)). The facts relayed in the State’s question did not contain additional facts specific to the case at bar that are unnecessary to explain the application of the law. Instead, the additional facts served to distinguish the hypothetical, rather than identify it with the facts of this case. Therefore, the State’s question is not improperly broad under the third prong of Standefer.

C. Proper Commitment Questions

We hold that the trial court did not abuse its discretion by allowing the State to ask prospective jurors whether they could convict on the testimony of only one witness whom they believed beyond a reasonable doubt. The State’s question was not designed to bind the prospective jurors to a position based on a particular set of facts, but sought to elicit whether the jurors could impartially judge the credibility of a witness and follow the law.

Accordingly, we overrule appellant’s second point.

Inference of Guilt

In his third point of error, appellant contends that the trial court erred in admitting evidence concerning appellant’s bail jumping and flight to Florida as an inference of guilt during the guilt-innocence phase of the trial.

Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989); Cantrell v. State, 731 S.W.2d 84, 93 (Tex.Crim.App.1987) (evidence of bond forfeiture may be admissible as tending to show flight and flight, in the context of bail-jumping, may be construed as evidence of guilt); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App.1982) (absent showing by appellant that escape was related to circumstances unrelated to the charged offense, evidence of escape is admissible on the issue of guilt); see Tex.R. Evid. 401. To support the admission of evidence of escape from custody or flight it must appear that the escape or flight have some legal relevance to the offense under prosecution. Rumbaugh, 629 S.W.2d at 752; Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex.Crim.App.1975) (evidence of flight, in the context of bail-jumping, may be construed as evidence of guilt); Hodge v. State, 506 S.W.2d 870, 873 (Tex.Crim.App.1974) (op. on reh’g) (evidence of defendant’s escape and flight after he was placed in custody for offenses for which he was on trial was admissible even though his subsequent escape was from custody of officers from another jurisdiction who were investigating a matter other than that for which he was on trial). To have such evidence excluded under relevancy challenges, the burden shifts to the defendant to show affirmatively that the escape and flight directly were connected to some other transaction, and not connected with the offense at trial. Wockenfuss, 521 S.W.2d at 632; Hodge, 506 S.W.2d at 873.

Appellant’s attempted escape clearly had relevance to appellant’s guilt of the crime charged as it was committed three days before the first trial date for this case. Because he introduced no evidence concerning this issue, appellant failed to meet his burden to show that the escape was connected to some other transaction or offense. Accordingly, we overrule appellant’s third point of error.

CONCLUSION

We affirm the judgment of the trial court.

      . Appellant also claims that the evidence is not factually sufficient to support his conviction because the State used appellant's bond jumping as an inference as guilt. The State’s use of appellant’s bond jumping as an inference of guilt is discussed under appellant’s third point of error. We conclude the evidence is factually sufficient even without the bond jumping evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marco DIGGES, Michael Ponzica, William Todd Rogers, and Donald Eric Williams, Appellants v. KNOWLEDGE ALLIANCE, INC., Andrew Dweyer, Individually; Dort Cameron, Individually; and Ursula Mentjes, Individually, and Jointly and Severally, Appellees.
    No. 01-04-00710-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 18, 2004.
    Bruce Cameron Kaye, Dallas, TX, for Appellant.
    Richard G. Wilson, McFall, Sherwood, & Breitbeil, P.C., Houston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and BLAND.
   OPINION ON REHEARING

PER CURIAM.

Appellants have filed an “Amended Motion to Vacate Order,” which we treat as a motion for rehearing. We deny the motion, but withdraw our August 26, 2004 opinion and judgment and substitute the following opinion and a new judgment in their places.

This appeal arises from the trial court’s granting of defendants’/appellees’ special appearance. An order granting a special appearance is an interlocutory, appealable order. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2004-2005). Such appeals are accelerated. See Tex.R.App. P. 28.1. A notice of appeal in an accelerated appeal must be filed within 20 days after the interlocutory order is signed. Tex.R.App. P. 26.1(b). Here the trial court signed the interlocutory order granting the special appearance on March 24, 2004. Thus, the notice of appeal would have been due to be filed by April 13, 2004, but instead it was filed on June 21, 2004 (69 days past the filing deadline). Appellate courts can extend the time for filing the notice of appeal if, within 15 days of the deadline, the appellants file a notice of appeal and a motion to extend time to file the notice of appeal complying with Texas Rule of Appellate Procedure 10.5(b). Tex.R.App. P. 26.3 Here, no such motion was filed.

Appellants filed a motion for new trial on April 19, 2004. This did not operate to extend the time for filing their notice of appeal, however, because filing a motion for new trial does not extend the time to perfect an accelerated appeal from an interlocutory order. Tex.R.App. P. 28.1.

In their notice of appeal, appellants assert they are filing an accelerated interlocutory appeal to challenge the trial court’s denial of their “Motion to Reconsider Order Granting Defendant’s Motion to Reconsider Denial of Special Appearance,” filed on May 18, 2004. Such motions, however, are not independently appealable. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2004) (including only orders granting or denying special appearances as appealable interlocutory orders).

We dismiss appellants’ appeal for want of jurisdiction.


author: JANE BLAND, Justice.

text:
    Edward Lee McDONALD and Bobby J. Robinson, Appellants, v. SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 01-03-00646-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 24, 2004.

      Charles L. Levy, Waco, Craig Muessig, Law Office of Craig Muessig, Baytown, Marc G. Rosenthal, Austin, for Appellant.
    Jack McKinley, Robert L. Ramey, Ra-mey, Chandler, McKinney & Zito, P.C., Houston, for Appellee.

      Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

In an insurance coverage bench trial arising from an auto-pedestrian accident, the trial court rendered a judgment in favor of appellee, Southern County Mutual Insurance Co. (Southern County), denying coverage. We hold that (1) appellants, Edward Lee McDonald and Bobby J. Robinson, were not “occupying” a motor vehicle at the time of their injuries and therefore did not qualify as insureds under the insurance policy at issue; and (2) the accident did not arise out of the maintenance or use of a motor vehicle. We therefore affirm.

The Facts

In August 2001, at about 9:30 p.m., McDonald drove a tractor, owned by Robert Cooper. The tractor pulled a trailer, owned by All Points Holdings (“All Points”), a trucking company. McDonald drove the tractor-trailer rig under All Points’s authority. Robinson accompanied McDonald as a driver’s helper. While traveling westbound on Interstate 10, approaching Katy, Texas, the tractor’s right front tire blew out. McDonald pulled over and parked the rig in the grass on the side of 1-10, between 1-10 and the service road. McDonald and Robinson tried to telephone for help, but their cellular telephone did not work.

The two men walked away from the rig, and planned to walk until they reached a place where they could seek assistance for repairing the flat tire. The men crossed the 1-10 westbound service road and proceeded westward along the north side of the service road, in the direction of, and with their backs to, the traffic. Intending to return to the vehicle later that evening, they left their personal belongings in the tractor, including clothing, a briefcase, a log book, and a notebook.

About five minutes after beginning their journey along the feeder road, driver Francisco Rangel struck the two men from behind. The impact caused injuries to both men, although the record does not contain the details of their injuries. Both men were unsure of the precise distance they had traveled before the impact. Robinson testified they had walked “a few minutes,” but did not know how much distance they had covered. McDonald testified they had walked “about five minutes or less,” for “maybe 50 feet or better.”

Rangel carried the minimum limits of liability insurance coverage on his car— $20,000 per person and $40,000 per accident. Southern County had issued a Texas Truckers Policy to All Points that includes uninsured/underinsured motorist (“UIM”) coverage for the tractor. McDonald and Robinson filed a claim for un-derinsured motorist coverage against the Southern County policy, alleging that Ran-gel negligently caused their injuries, and that they had exhausted the minimum limits under Rangel’s liability policy.

Southern County’s UIM policy extends coverage to:

damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured, or property damage caused by an accident.

Part C of the policy defines an “insured” to include, in addition to the named insured, designated beneficiaries, family members, and “any other person occupying a covered auto.” The parties agree that neither McDonald nor Robinson is a named insured, a family member, or a “designated person” under the policy. They further agree that the tractor and trailer are “covered autos.” McDonald and Robinson claim that they both qualify as “[a]ny other person occupying a covered auto.” The policy defines “occupying” as “in, upon, getting in, on, out or off.”

The Procedural History

Southern County sued for a declaratory judgment denying coverage for McDonald’s and Robinson’s claims. McDonald and Robinson counterclaimed against Southern County for uninsured motorist coverage for their injuries. The trial court realigned the parties for trial. The parties agreed to try the insurance coverage portion of the suit to the court in a bench trial first, and later try the bodily injury claims to a jury, if necessary.

After hearing the evidence, the trial court rendered a judgment that denied insurance coverage and ordered that McDonald and Robinson take nothing on then UIM claims. In a separate instrument, the trial court entered findings of fact and conclusions of law. Pertinent to our analysis here, the trial court found:

4. While westbound on Interstate 10 approaching Katy, Texas, the right front tire of the tractor blew out.
5. McDonald then stopped the tractor-trailer rig and parked it on the side of Interstate 10, between the freeway and the service road.
6. McDonald and Robinson did not attempt to repair or replace the blown-out tire themselves, but tried to call All Points for assistance using a cell phone, which did not operate.
7. McDonald and Robinson then crossed the Interstate 10 westbound service road and began to walk along the north side of the Interstate 10 service road (in the direction of traffic, on the side of the service road opposite the freeway) in search of a location where they could obtain or call for assistance to replace or repair the flat tire.
8.While walking alongside the service road, in the direction of and with their backs to traffic, McDonald and Robinson were struck from behind by a vehicle driven by Francisco Javier Rangel, and were injured.
14. For McDonald or Robinson to be an “insured” within the scope of UIM coverage, he had to be “occupying” the tractor or trailer at the time he suffered a “bodily injury,” according to the definition of “insured” in part C. (“Who Is An Insured”) of the TE 04 09D endorsement:
You and any designated person and any family member of either.
Any other person occupying a covered auto.
15. Neither McDonald nor Robinson is a “designated person” in the policy that Southern County issued to All Points.
16. The TE 04 09D endorsement defines “occupying,” stating that it “means in, upon, getting in, on, out or off.”
17. McDonald and Robinson were not occupying the tractor or trailer at the time they were struck by the underinsured motorist on the side of the freeway service road.
18. McDonald’s and Robinson’s injuries did not arise out of use of the tractor or trailer. Their driving “use” had ceased. The blowout of the tractor tire and resulting need for maintenance was a condition precedent to them being hit by Rangel’s car while walking to obtain help, but their walk was not itself “maintenance” of the vehicle and their ensuing auto-pedestrian accident was not a consequence of maintenance.

Pertinent to this appeal, the trial court concluded:

1. McDonald and Robinson were not occupying the tractor or trailer at the time they were struck by the underinsured motorist on the side of the freeway service road.
2. Because neither McDonald nor Robinson was occupying the tractor or trailer at the time he suffered “bodily injury,” neither qualifies as an “insured” as defined in the UM/UIM endorsement, and neither has UIM insurance under Southern County’s policy.
3. McDonald’s and Robinson’s injuries did not arise out of the use of the tractor or trailer.
4. McDonald’s and Robinson’s driving “use” of the tractor had ceased at the time of the auto-pedestrian accident that injured them.
5. The blowout of the tractor tire and resulting need for maintenance was a condition precedent to McDonald and Robinson being hit by Rangel’s car while walking to obtain help, but their walk was not itself “maintenance” of the vehicle.
6.McDonald’s and Robinson’s auto-pedestrian accident, while en route to a location where they could obtain assistance in repairing or replacing the tractor tire, does not have the causal relationship to maintenance of the tractor required by the phrase “arising out of.”
7.Supposing McDonald’s and Robinson’s injuries arose out of maintenance of the tractor, that would not create UIM coverage for them because the policy’s “arising out of’ requirement is part of the policy’s grant of liability coverage — not UIM coverage.
8.Even if the “arising out of’ requirement in the policy’s grant of liability coverage were also part of the UIM grant of coverage, McDonald and Robinson would still have to qualify as “insureds” under the UIM endorsement’s definition before that standard applied to them, and they cannot do so because they were not “occupying” an insured auto when they suffered “bodily injury.”

On appeal, McDonald and Robinson contend that (1) Robinson and McDonald were covered under the Southern County policy at the time of the accident as they were “occupying” the tractor when the underin-sured motorist hit them; or (2) alternatively, Robinson and McDonald are insureds under state law, as they were within a reasonable geographic proximity to the tractor, and engaged in an activity necessarily related to the use or maintenance of the tractor.

The Standard of Review

In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, writ denied). We review the legal and factual sufficiency of the evidence by the same standards applied in reviewing evidence supporting a jury’s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). If a party attacks the legal sufficiency of an adverse finding on an issue as to which he bears the burden of proof, then he must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing such a “matter of law” challenge, we examine the record for evidence that supports the challenged finding, ignoring evidence to the contrary. Id. If no evidence exists to support the finding, we examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

In reviewing a factual-sufficiency point, we consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

We review de novo a trial court’s conclusions of law, and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium, v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court’s conclusions of law for lack of factual sufficiency, but we review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, 83 S.W.3d at 794.

The Rules of Construction

We construe insurance policies in Texas according to the rules governing contract construction. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). If policy language has a certain or definite legal meaning or interpretation, then it is not ambiguous and we construe it as a matter of law. Id. Whether a contract is ambiguous is a question of law. Id. An ambiguity does not arise merely because the parties offer conflicting interpretations of the policy language. Id. Rather, an ambiguity exists only if the contract is susceptible to two or more reasonable interpretations. Id. If language in an insurance contract is ambiguous or inconsistent, and susceptible to more than one reasonable interpretation, a court resolves the uncertainty by adopting a construction that favors the insured. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). We thus construe an insurance policy strictly against the insurer and in favor of coverage. Barnett v. Aetna Life Ins., 723 S.W.2d 663, 666 (Tex.1987).

The Term “Occupying” in the Uninsured Motorist Policy

McDonald and Robinson contend that the evidence conclusively establishes that they were “occupying” a motor vehicle at the time of their injuries, so as to qualify as insureds under the Southern County uninsured policy. The uninsured policy defines “occupying” as: “in, upon, getting in, on, out or off.” Texas cases have construed the term “occupying” under various insurance policy provisions. As set forth below, the courts of appeals in Fulton (walking in a parking lot) and Ferguson (grabbing the handle of a different car for support) have held, in comparable circumstances to this case, that the claimants were not “occupying” their vehicles at the time of their injuries.

In Fulton v. Texas Farm Bureau Ins. Co., the Dallas Court of Appeals held that a claimant was not “occupying” an insured car and therefore was not covered under the policy, when he walked away from a vehicle, across a parking lot, to seek police assistance. 773 S.W.2d 391, 392 (Tex.App.-Dallas 1989, writ denied) (affirming summary judgment for insurance carrier). Fulton was a passenger in a car whose driver had argued with a driver of another car. Id. Both drivers pulled into a liquor store parking lot and continued arguing. Id. The driver of the other car rammed her car into the car Fulton occupied and drove away. Id. Fulton got out of the car to call the police. Id. As Fulton walked through the parking lot, the driver of the other car drove back into the lot and struck Fulton with her car. Id. Fulton sought to recover uninsured motorist compensation and personal injury protection, asserting that he had been occupying the insured car. Id. The policy defined the term “occupying” as “in, upon, getting in, on, out or off”—a definition identical to the one in this case. Id. The court of appeals held that Fulton was not occupying the car:

By no stretch of the imagination could Fulton be said to have been “in, upon, getting in, on, out or off’ of Bartek’s car. Fulton was walking about freely in the parking lot at the time he was struck by the alleged “uninsured” car.

Id. (emphasis added). The facts in this case are analogous to the facts in Fulton. Like the claimant in Fulton, McDonald and Robinson too were “walking about freely” down the service road to seek assistance. See id.

In Ferguson v. Aetna Cas. & Sur. Co., the Waco Court of Civil Appeals construed the term “occupying” in the context of a medical payments provision that provides medical payments for a named insured who sustains “bodily injury, caused by accident, while occupying or through being struck by an automobile.” 369 S.W.2d 844, 845 (Tex.Civ.App.-Waco 1963, writ ref’d) (affirming summary judgment for insurance carrier). The policy defined the term “occupying” to be “in or upon or entering into or alighting from an automobile,” a definition different from the provision in this case. Id. In Ferguson, a woman left a beauty shop and walked on a board leading into the parking area, toward her car. Id. She slipped, grabbed the handle of a different car for support, fell off the board, and broke both legs. Id. The Waco court denied recovery, holding that she was not “occupying” the car:

We think the language employed in the coverage of the insurance policies reasonably plain and unambiguous; and to say that plaintiff was “in or upon” the automobile she had her hand on would be placing a distorted meaning, and unreasonably strained construction upon the described coverage. If plaintiff had been entering or alighting from the car she had her hand upon, at the time of her injury, a different situation would be presented. We cannot say she was “in or upon” the car simply because she put her hand upon it to steady her walk around it on the way to her own car from the beauty parlor.

Id. at 845-46.

Moreover, this year, two courts of appeals have addressed the definition of “occupying” in the insurance coverage context. See The Insurance Co. of the State of Pennsylvania v. Pearson, No. 07-03-0340-CV, 2004 WL 2053285 (Tex.App.-Amarillo Sept.07, 2004, no pet.) (mem.op.); McKiddy v. Trinity Lloyd’s Ins. Co., No. 05-03-00908-CV, 2004 WL 639639 (Tex.App.-Dallas April 01, 2004, pet. denied) (mem.op.).

In Pearson, the Amarillo Court of Appeals reversed a summary judgment in favor of a claimant and held that Pearson did not qualify as an “insured” under the policy because he was not “occupying” the vehicle. Pearson, 2004 WL 2053285, at *1. Pearson, who worked for an electric company, parked the company truck in an emergency lane on Interstate 75. Id. While performing his employment duties outside the parked truck, a taxi struck him from behind and killed him. Id. The court concluded that there was no evidence of a nexus between the truck and Pearson’s injuries:

In essence, getting in, getting on, getting off and getting out connote not only action immediately directed towards entering or exiting the auto but also an ongoing yet incomplete process. For instance, there is a difference between getting out of a car (a process that has begun but has yet to be completed) and being out of a car (a completed process). According to the policy the former is covered under the definition of “occupying,” but the latter is not.

Id. at *3.

In McKiddy, the Dallas Court of Appeals upheld a summary judgment in favor of the insurance company, holding that McKiddy did not qualify as an “insured” under the policy because he was not “occupying” the vehicle. McKiddy, 2004 WL 639639, at *1. McKiddy was a passenger in a car that skidded off an icy road. Id. After exiting the car, McKiddy was struck by another car that skidded off the road. Id. McKiddy sought coverage under the underinsured motorist policy covering the car in which he had been a passenger. Id. McKiddy testified that he was “no more than ten feet” from the covered vehicle. Id. at *2. In assessing the existence of a causal relationship between the vehicle and the injuries, the court considered such in-dicia as the physical proximity between the injured person and the vehicle, the amount of time during which the injured person was outside the vehicle, and whether an impact with the covered vehicle caused the injuries. Id. The court held that McKiddy produced no evidence showing how long he had been out of the covered vehicle before being struck, and no evidence showing that his injuries related to an impact with the covered vehicle. Id. Accordingly, the court held that McKiddy failed to raise a fact issue as to whether “a causal connection” between his injuries and the covered vehicle existed. Id. Furthermore, the court held that the contract term — “occupying”—is not ambiguous as a matter of law. Id. at *3.

In each of these cases, the courts of appeals have affirmed the denial of coverage, based on holdings that “occupying” requires a causative nexus with the vehicle, and the claimants in these cases lacked such a nexus. Here, the trial court similarly found that the accident lacked a causative nexus with the vehicle covered by the insurance policy — i.e., once Robinson and McDonald began their foot journey, they ceased to be vehicle-oriented. The evidence in the record supports the trial court’s findings: the men had crossed the road, and were proceeding away from the vehicle on the other side, with an intent to return to it later, rather than immediately. We thus defer to the trial court as fact finder and hold that legally and factually sufficient evidence supports the trial court’s conclusion that the men were not “occupying” the vehicle under the policy.

“Getting In” or “Getting In, Getting On, Getting Out or Getting Off”

McDonald and Robinson also assert that the trial court improperly ignored the placement of the word “getting” in the defining phrase and ignored the lack of commas following the word “getting.” They contend that the word “getting” modifies only the word “in,” and not “on, out or off.” They rely on Pennington v. Ohio Casualty Insurance Company, in which the Ohio Court of Appeals construed an identical definition of the term “occupying.” 63 Ohio App.3d 527, 579 N.E.2d 507, 509 (1989) (reversing summary judgment and remanding). Pennington died as a result of injuries sustained while waiting in a drive-through line at a Taco Bell. Id. at 508. A man from another car in front of the line attacked Pennington’s car, stabbed the roof with a knife, and smashed the window. Id. Pennington exited the car to attempt to reach a place of safety. Id.

Pennington’s injuries would have been covered under the policy if he “was occupying a motor vehicle” at the time of the accident. Id. at 509. The court held that the word “getting” modifies only the word “in,” not the phrase “on, out or off’:

If this definition is taken literally, “occupying” means anywhere “out” or “off’ the vehicle, as the word “getting” does not modify either of these two words, but only the word “in.” There is no conjunction before “getting in” as there would be required for the word “getting” to modify “out,” “on,” and “off’ as well as “in.” Accordingly, a person “out,” or “off’ of the vehicle need not be “getting” in or “getting” out or “getting” off, but is within the policy definition of “occupying” when he is “out” or “off’ of the vehicle so long as there is a reasonable relationship to the vehicle at the time. The relationship here would be leaving the vehicle.

Id. at 509. The court thus concluded that “the process of leaving a vehicle continues at least until the departing passenger has reached a place of safety,” and that the evidence presented raised a fact issue precluding summary judgment. Id. at 510-11.

We note that Texas courts do not agree with the Ohio Court’s interpretation of “getting” in interpreting the Texas UIM policy. See Pearson, 2004 WL 2053285, at *3; McKiddy, 2004 WL 639639, at *2. More importantly, Pennington is distinguishable from the present case because it was an appeal from a summary judgment. Here, however, the trial court rendered judgment after trial on the merits, and we defer to the trial court’s findings of fact. The trial court in this case found that McDonald and Robinson were not “occupying” the vehicle. The trial court thus implicitly found that the claimants were beyond a reasonable proximity to the vehicle, and the record contains evidence to support that finding. Robinson testified that they walked from the shoulder of the freeway, across the “feeder road,” over to the grass, to the opposite side of the feeder road. Although they were unsure of the exact distance, Robinson testified they had walked “a few minutes,” and McDonald testified they had walked “about five minutes or less,” for “maybe 50 feet or better.” We hold that the evidence supports the trial court’s finding that McDonald and Robinson were not “occupying” the vehicle at the time of their injuries under either reading of “getting” in the definition of “occupying.” Based on the trial court’s findings of fact, the trial court properly denied coverage in this case.

Relying on additional cases from other jurisdictions, McDonald and Robinson also suggest that we construe the term “occupying” to include an analysis of whether the claimant has a “reasonable relationship” with the vehicle. They rely on Macchi v. Connecticut Gen’l Ins. Co., in which the New Jersey Superior Court Appellate Division held that a motorist, injured after she left her car to help an overturned vehicle, was “occupying” her car for purposes of the UM/UIM endorsement. 354 N.J.Super. 64, 804 A.2d 596, 600 (2002). In Macchi, the claimant stepped out of her Corvette on the side of the road, left the engine running, the lights on, her purse in the car, and told her son to call the police. Id. at 598. The court found that the claimant was “occupying” the vehicle; therefore, she was entitled to coverage. Id.; see also General Acc. Ins. Co. v. Olivier, 574 A.2d 1240 (R.I.1990) (holding that claimant, who was shot 117 feet away while waiting to speak to police, was “occupying” vehicle); Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) (holding that driver, who was injured while walking 97 feet from vehicle to retrieve items in response police officer’s request, was “occupying” vehicle). McDonald and Robinson contend that Texas law should follow these jurisdictions, and that we should determine that “occupying” ceases only when the vehicle occupant reaches a place of safety.

We observe that, in the context of a different insurance provision, the Texas Supreme Court recently held that an injury that occurred when a claimant’s foot became entangled with his truck’s door, while he exited the truck, was a “motor vehicle accident,” thereby entitling him to personal injury protection (PIP) coverage. Texas Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 128-30 (Tex.2004). In footnotes eleven and twelve, the Stur-rock court collected cases from across the nation, in which courts found coverage for accidents occurring within a reasonable proximity to the vehicle, and denied coverage for accidents occurring beyond a reasonable proximity to the vehicle. See id. at *4 n. 11, 12, at 128-30 (listing cases and fact patterns). Among those favorably cited with a fact pattern similar to the present case is Rednour v. Hastings Mutual Insurance Company, 468 Mich. 241, 661 N.W.2d 562 (2003) (reversing summary judgment). In Rednour, the claimant was approximately six inches away from his car and was walking toward the rear of his car to change a flat tire when he was struck by another car. Id. at 244, 661 N.W.2d at 564. The Supreme Court of Michigan held that the claimant was not occupying his vehicle and thus was not entitled to PIP coverage. Id. at 251, 661 N.W.2d at 568.

In Sturrock, the Texas Supreme Court observed that these cases often turn on whether the vehicle was a causative factor in the injury. Sturrock, 146 S.W.3d at 128-30. Texas precedent has not imposed an additional “place of safety” requirement beyond the traditional causation analysis. Here, the trial court found that the vehicle was not a causative factor in McDonald and Robinson’s injuries. We decline to read “occupying” so broadly as to confer coverage, as a matter of law, any time an occupant who has exited the vehicle has not reached a “place of safety.”

“While Occupying” vs. “Occupying”

The claimants further contend that the absence of the word “while” immediately before the word “occupying” requires the court to give a broader meaning to “occupying.” Throughout the policy, Southern County uses the phrase “while occupying.” For example, the exclusion section provides:

We do not provide Uninsured/ Underin-sured Motorists Insurance for any person:
a. For bodily injury sustained while occupying, or when struck by any motor vehicle ... which is not insured for coverage under this policy.

The claimants assert that failing to give the term “occupying” a broader meaning than “while occupying” makes the term “while” “mere surplusage.” A dictionary defines “occupy” as “to fill up (space or time).” WebsteR’s II New College Dictionary (1995 ed.).

The parties concede that no Texas case has considered “while” in this context. As Southern County points out, “ Virile’ primarily serves the English language as a conjunction, connecting clauses or phrases in a sentence,” and thus is not necessary in connection with defining a term. We agree with Southern County that the omission of “while” does not inform as to the meaning of “occupying.”

“Arising Out of the Maintenance or Use” of the Vehicle and Public Policy

The Southern County policy outlines the scope of coverage as follows:

We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured or property damage causes [sic] by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.

It is undisputed that Rangel, the uninsured motorist, was using his vehicle when he drove down I—10 and struck the claimants; thus, the damages arose out of the use of the uninsured’s (Rangel) motor vehicle. The Southern County policy does not address the extent to which UIM coverage exists for damages arising out of the maintenance or use of the insured’s vehicle. McDonald and Robinson contend, however, that their damages arose out of the use of the insured’s (McDonald’s and Robinson’s) motor vehicle.

Article 5.06-1 of the Texas Insurance Code provides a basis for coverage arising out of the maintenance or use of “any” motor vehicle, not just the maintenance or use of the uninsured vehicle:

No automobile liability insurance ... covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in at least the limits described in the Texas Motor Vehicle Safety-Responsibility Act, under provisions prescribed by the Board, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or un-derinsured motor vehicles because of bodily injury, sickness, or disease, including death, or property damage resulting therefrom.

Tex. Ins.Code Ann. Art. 5.06-1(1) (Vernon Supp.2004-2005) (emphasis added).

It is unclear from McDonald’s and Robinson’s brief whether they seek a holding that broadens the language of the UIM policy to comport with the statute — and essentially places “occupiers” in the same position as that of first-party insureds — or one that defines the term “occupying” to include maintenance of the vehicle. Under either proposed construction, however, the evidence supports the trial court’s finding that the injuries did not “arise out of’ the use or maintenance of the tractor or trailer. The trial court found as follows:

McDonald’s and Robinson’s injuries did not arise out of the use of the tractor or trailer. Their driving “use” had ceased. The blowout of the tractor tire and re-suiting need for maintenance was a condition precedent to them being hit by Rangel’s car while walking to obtain help, but their walk was not itself “maintenance” of the vehicle and their ensuing auto-pedestrian accident was not a consequence of maintenance.

McDonald and Robinson contend that trial court’s findings are incorrect because, under the Federal Motor Carrier Regulations Act, they remained on duty during the time they sought assistance. See 49 C.F.R. § 395.2(6) (“On duty time shall include ... All time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle.”). They left their personal belongings in the tractor, including clothing, a briefcase, log book, and notebook, and intended to return to their rig later that evening after obtaining assistance. The tractor contained “sleepers,” if they needed to sleep in the rig that night.

Assuming that Article 5.06-1(1) requires the broad assessment of the policy language that they suggest, McDonald and Robinson factually do not prevail here, because the evidence supports the trial court’s findings that their auto-pedestrian accident did not arise out of the maintenance or use of the vehicle. McDonald and Robinson were not in the process of changing the flat tire. Instead, they had parked the tractor on the side of the highway and had walked across the service road in the grass “about five minutes or less,” for “maybe 50 feet or better.” Accordingly, the evidence supports the trial court’s finding that the claimants’ foot journey was not “maintenance” of the rig.

The claimants note that other jurisdictions favor a broad construction of “arising out of’ to encompass persons who are walking or standing a considerable distance from their vehicle. McDonald and Robinson do not prevail, however, under Texas precedent. In Mid-Century Ins. Co. v. Lindsey, the Texas Supreme Court held:

For liability to “arise out of’ the use of a motor vehicle, a causal connection or relation must exist between the accident or injury and the use of the motor vehicle. The use required is of the vehicle qua vehicle, rather than simply as an article of property. Whether a person is using a vehicle as a vehicle depends not only on his conduct but on his intent.

997 S.W.2d 153, 156 (Tex.1999) (citations omitted). The Lindsey court outlined the following test to determine whether an injury “arises out of the use” of a motor vehicle for purposes of auto liability insurance coverage:

For an injury to fall within the “use” coverage of an automobile policy (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.

Id. at 157. McDonald and Robinson do not meet these three factors. First, the accident arose out of the inherent nature of their pedestrian journey, not from their interaction with the tractor. Second, they terminated the tractor’s “actual use” when they drove into the grass, parked the tractor, turned the engine off, and walked beyond the “natural territorial limits” of the tractor. Third, the tractor did not “itself produce the injury.” Instead, the tractor’s flat tire merely contributed to the condition, or the walk down the highway, that produced the injury. Under these factors, McDonald’s and Robinson’s injuries do not arise out of the use or maintenance of the tractor. See id¡

Finally, Robinson contends that public policy demands a liberal interpretation of the UIM statute. The purpose of PIP and UIM coverage is to protect conscientious drivers from irresponsible parties, and courts liberally construe the PIP and UIM statutes. See Sturrock, 146 S.W.3d 123, 127-28; Stracener v. United Serv. Auto. Ass’n, 777 S.W.2d 378, 382 (Tex.1989) (stating that UIM article should be liberally construed).

We agree, but even if we assume a broad interpretation of the UIM policy for public policy reasons, as we have, the evidence nonetheless supports the trial court’s findings that McDonald and Robinson’s injuries did not arise out of the use or maintenance of the tractor or trailer under the standards set forth by the Texas Supreme Court.

Conclusion

We hold that the evidence supports the trial court’s findings that (1) McDonald and Robinson were not occupying the tractor or trailer at the time the underinsured motorist hit them, and (2) their injuries did not arise out of the use or maintenance of the tractor or trailer. Based upon these findings, the trial court properly declared that no coverage exists under the UIM policy, and properly rendered a take nothing judgment on the claims against the policy. We therefore affirm the judgment of the trial court.

      . See also Schulz v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 872, 876 (Tex.App.-Houston [1st Dist.] 1996, no writ) (affirming summary judgment in favor of insurance company). In Schulz, a case construing an auto death indemnity provision, the driver’s estate argued that the driver had been "occupying” the vehicle, even though he was shot outside the vehicle, because he was in "relatively close proximity to the vehicle for purposes related to the vehicle and because his exit from the vehicle was not voluntary, but rather a result of force.” Id. The driver's estate offered no evidence to support a causal relationship between the vehicle and the driver’s death; therefore, we held that the driver was not "occupying” the vehicle at time he was shot. Id.

      . See Pennington, 579 N.E.2d at 509 (requiring reasonable relationship to vehicle at time of accident); Genthner v. Progressive Casualty Ins. Co., 681 A.2d 479, 482 (Maine 1996) (holding that passenger was "occupying” insured vehicle for purposes of UM coverage for injuries sustained immediately after insured vehicle was rear-ended by another vehicle when he exited vehicle in attempt to assist driver in obtaining second vehicle’s license number and was struck by second vehicle as it sped away); Adkins v. Liberty Mutual Fire Ins. Co., 201 W.Va. 148, 494 S.E.2d 915 (1997) (holding that policy requirement that highway construction worker "occupy” vehicle for UIM was void because coverage only for individuals "occupying” covered vehicle was more restrictive than statutory requirement of coverage for persons "using” vehicle).


author: EVELYN V. KEYES, Justice.

text:
    Latarsha Uneac WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00592-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 24, 2004.

      Mary B. Hennessy, Brenham, for Appellant.
    Renee Ann Mueller, District Attorney, Washington Burleson County, Joan E. Scroggins, Assistant District Attorney, Burleson County, Caldwell, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Latarsha Uneac Williams, pleaded guilty, without an agreed recommendation on punishment, to the offense of murder. The court ordered a pre-sentence investigation, and reset the matter for a punishment hearing. Following the hearing, the trial court found appellant guilty and assessed punishment at 25 years’ confinement. In three points of error, appellant contends that she is entitled to a new punishment hearing because the trial court erred by admitting (1) victim-impact and victim-character testimony, (2) autopsy photographs, and (3) medical records not properly authenticated. We affirm.

Background

In August 2001, a fight broke out in a bar. Appellant fatally stabbed the complainant, Craig McCullough, in the heart. An autopsy was performed, at which a Burleson County Sheriff took several photographs.

Appellant pleaded guilty without an agreed recommendation as to punishment. At the punishment hearing that followed, appellant testified that the fight started when her brother hit the complainant because the complainant called her a name. She testified that she watched the fight, that several members of the complainant’s family joined the fight, and that she was angry. At some point during the fight, her boyfriend gave her a knife. She testified that the complainant swung a pipe at her; she ducked and stuck her arm out with the knife in her hand.

On cross-examination, appellant testified that she did not mean to hurt the complainant, that she did not stab him “like everybody keeps making it sound,” and that the knife “just went into him.” She admitted that she lied to the police during the initial investigation when she said she was nowhere near the man holding the pipe. She then contradicted the story she gave for the pre-sentence investigation report, in which she said she was getting up from the ground when the complainant was stabbed. She testified, instead, that she was falling backward when the complainant “hit” the knife.

The autopsy photographs were offered after the medical examiner’s report was admitted into evidence by agreement of the parties. One photograph shows the complainant’s upper body on the autopsy table, with his wound visible. The second photograph is a close-up of the complainant’s chest being pulled open enough to show the length of the wound. The third photograph shows the complainant’s heart, with the wound visible, being held over his open chest. The fourth photograph shows the complainant’s heart, on a tray, being held open to show the depth of the wound.

In addition, the State presented the testimony of two registered nurses who had treated appellant’s boyfriend for a stab wound to his arm caused by appellant in a separate incident. The first nurse explained that she was in the emergency room when the man was brought in and that he was unresponsive due to blood loss. The nurse testified that appellant told the trauma team and a police officer that she had cut her boyfriend with a kitchen knife after he hit her. Appellant’s boyfriend was transferred to another hospital where the second registered nurse treated him for the stab wound.

Finally, the complainant’s mother testified that her son was a sweet young man, that he had played little league, that he loved everybody, and that he had joined the Marines. She testified that the complainant never got into fights and was never a problem at school. She also stated that his death ripped her apart.

Standard of Review

In each of her points of error, appellant complains about the admissibility of evidence at the punishment stage of her trial. Article 37.07, section 3(a)(1) of the Code of Criminal Procedure governs the admissibility of evidence during the. punishment phase. Tex.Code Crim. Prom. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2004-2005); see Boone v. State, 60 S.W.3d 231, 238 (Tex.App.-Houston [14th Dist.] 2001, pet. ref’d). It provides that “[rjegardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defense as to any matter the court deems relevant to sentencing.... ” Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon 2003). The, Court of Criminal Appeals has explained that “because the jury’s decision in a non-capital case does not involve a discrete finding, the relevance of evidence cannot be determined by a deductive process but rather is a function of policy.” Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App.2004) (citing Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999)). The underlying policy considerations encompass “(1) giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant; (2) the rule of optional completeness; and (3) whether the appellant admits the truth during the sentencing phase.” Id. (footnotes omitted). Consequently, relevant evidence is any evidence that aids the fact finder under the particular circumstances. Id.

A trial court has wide discretion in deciding the admissibility of evidence presented at the punishment phase of trial. Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d). We will not overturn the trial court’s decision regarding the admissibility of relevant evidence unless it is an abuse of discretion by being outside the zone of reasonable disagreement. See Flores v. State, 125 S.W.3d 744, 746 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Boone, 60 S.W.3d at 239, 240.

Discussion

Admissibility of Autopsy Photographs

In her second point of error, appellant argues that the trial court erred in admitting autopsy photographs of the complainant at the punishment hearing over appellant’s objection. The State offered four autopsy photographs in connection with the testimony of a lieutenant with the Burleson County Sheriffs Office. The lieutenant took the photographs while the autopsy was being performed by the medical examiner. Appellant objected that the autopsy photographs were prejudicial. The judge overruled the objection. The officer testified that the photographs demonstrated the depth of the wound to the victim and the damage to the victim’s heart. He also testified that the photographs confirmed the autopsy report.

Like other demonstrative evidence, photographs should assist the fact finder with its decision whether that is deciding guilt or punishment; a photograph should add something that is “relevant, legitimate, and logical to the testimony that accompanies it” and that assists the fact finder in its decision-making duties. Erazo, 144 S.W.3d at 491. If the elements of a photograph are genuinely helpful, the photograph is inadmissible only if its emotional and prejudicial aspects substantially outweigh the helpful aspects. Id. at 491-92. In general, photographs are admissible if verbal testimony about the matter shown in the photographs would be admissible and the probative value is not outweighed by rule 408 counter-factors. Threadgill v. State, 146 S.W.3d 654, at 670-71 (Tex.Crim.App.2004); see Tex.R. Evid. 403.

Here, the autopsy photographs supplied complete information regarding the nature of the wounds inflicted on the complainant by appellant and corresponding with the description of the injuries in the autopsy report that was admitted into evidence. This information was helpful to the court in devising an appropriate sentence because appellant had repeatedly changed her story about the complainant’s death and had denied that she intended to stab the complainant. We conclude that the autopsy photographs showing a stab wound to the complainant’s heart were probative of the nature of the wound inflicted on him by appellant and that they were helpful to the court in tailoring an appropriate sentence for appellant. See Erazo, 144 S.W.3d at 491. We, therefore, must determine whether the relevance of the autopsy photographs was outweighed by their prejudicial effect.

A trial court may consider numerous factors when determining whether the probative value of relevant photographs is substantiality outweighed by the danger of unfair prejudice. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App.2002). The trial court should consider the number of photographs offered, their detail, their gruesomeness, their size, whether they are close-up, whether they are in black and white or color, and whether the body is clothed or naked. See Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App.2000) (citing Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App.1991)). While autopsy photographs are usually admitted, they should be excluded if they show mutilation to the victim caused by the autopsy. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App.1998). However, if the disturbing nature of the photographs is due primarily to the injures caused by the defendant, the changes to the victim’s body caused by the autopsy are of minor significance. See Hayes, 85 S.W.3d at 816 (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App.1997)) (holding that photograph depicting victim’s skin pulled back to show extent of the gunshot wound to her face was admissible; pulling back victim’s skin did not make evidence more gruesome); Salazar v. State, 38 S.W.3d 141, 151-52 (Tex.Crim.App.2001) (holding that autopsy photographs showing internal organs removed from victim’s body were probative because they showed that internal injuries to victim did not support appellant’s version'of incident).

Here, four photographs are the subject of appellant’s complaint. None of the photographs show the complainant’s entire body. One shows the complainant, shirtless from his waist up, with his wound clearly visible. The second photograph is a close-up of the stab wound. The third shows the complainant’s heart being held outside his body and over his chest. The fourth shows the heart on a tray being spread open to show the depth of the stab wound. Each photograph shows the stab wound in greater detail than the last. The photographs are in color and are roughly six inches by eight inches. The photographs show minimal damage to the complainant’s body caused from the autopsy. The photographs are probative as to the extent and nature of the complainant’s injuries. We hold that the autopsy photographs are relevant and are not unduly prejudicial to the sentencing trial court judge.

Appellant’s second point of error is overruled.

Admissibility of Victim-impact and Victim-character Testimony

In her first point of error, appellant contends that the trial court erred by allowing the complainant’s mother to testify at the punishment phase of appellant’s trial and over appellant’s objection regarding the complainant’s character and the impact of the complainant’s death on her. Appellant argues that the complainant’s character is not admissible at the punishment phase unless it is placed in issue by the defendant. She further argues that the impact of the complainant’s death on his mother is not relevant to any issue in this case.

Appellant relies on Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App.1997), and Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996), to argue that a complainant’s character is not admissible unless it is placed in issue by the defendant. The Cantu decision is, however, distinguishable in that the victim-impact and victim-character evidence in that case pertained to an extraneous victim, not to the complainant named in the indictment. Cantu, 939 S.W.2d at 637. Here, appellant is complaining about the victim-impact and character evidence regarding the complainant. Thus, Cantu does not apply. Nor does Smith apply; rather, Smith was abrogated by Mosley v. State, 983 S.W.2d 249, 261-62 (Tex.Crim.App.1998) (holding that both victim-impact and victim-character evidence are admissible).

The Court of Criminal Appeals held in Mosley that, in a death penalty case, “[b]oth victim impact and victim character evidence are admissible, in the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.” Mosley, 983 S.W.2d at 261-62. However, “[w]hen the focus of the evidence shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society, then the State exceeds the bounds of permissible testimony.” Id. at 262. Mosley has since been applied to non-capital cases. In Salazar v. State, the Court of Criminal Appeals held that when the probative value of victim-impact evidence outweighs the prejudicial effect, victim-impact evidence is admissible in the punishment phase of non-capital offense trials. 90 S.W.3d 330, 335-36 (Tex.Crim.App.2002).

In general, victim-character and victim-impact evidence may be admissible at the punishment stage when the evidence bears on the defendant’s personal responsibility and moral culpability. Salazar, 90 S.W.3d at 335; Mosley, 983 S.W.2d at 261-62. Such evidence is designed to show the victim’s “uniqueness as an individual human being” and to “inform the sentencing authority about the specific harm caused by the crime in question.” Salazar, 90 S.W.3d at 335 (quoting Payne v. Tennessee, 501 U.S. 808, 823, 111 S.Ct. 2597, 2607, 115 L.Ed.2d 720 (1991)). Victim-character evidence reminds the sentencing authority that the person whose life was taken was a unique human being; victim-impact evidence is a reminder that murder has foreseeable consequences on the community and the victim’s survivors. Id. However, victim-impact and character evidence can become unfairly prejudicial through sheer volume. Id. at 336; Mosley, 983 S.W.2d at 262-63. Thus, in deciding whether the probative value of the evidence is outweighed by unfair prejudice, the trial court should consider “(1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.” Salazar, 90 S.W.3d at 336.

Here, only the complainant’s mother, Jane McCullough, testified to victim-impact and victim-character evidence. She testified that the victim was a sweet young man, who loved everybody, was a good son, had been in the Marines, was never a problem in school, and never got into fights. She also testified that knowing that she would not see him again ripped her apart. The testimony was probative because it explained the uniqueness of the complainant and the harm caused by his death, thus relating to the defendant’s moral culpability and responsibility.

Jane McCullough’s testimony consisted roughly of seven pages out of 152 pages of testimony during the State’s portion of the case. Therefore, the testimony was not prejudicial based on its volume. No other witness testified to the impact of the victim’s death or the victim’s character. This testimony was thus the only probative evidence on point; it did not measure the worth of the complainant compared to other members of society; nor did it seek to impress the judge in an irrational, but nevertheless indelible way. Based on this record, we conclude that the admission of the testimony was relevant and did not unfairly prejudice appellant. Accordingly, the trial court did not abuse its discretion by allowing this testimony.

We overrule appellant’s first point of error.

Admissibility of Medical Records

In her third point of error, appellant argues that the trial court erred in admitting medical records over her objection that they were hearsay and were not properly authenticated.

We review a trial judge’s decision to admit or exclude evidence under an abuse of discretion standard. See Salazar, 38 S.W.3d at 151. The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court’s discretion. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995). The decision of the trial court will be affirmed if the decision is within the zone of reasonable disagreement on the particular issue. See Salazar, 38 S.W.3d at 151; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).

For hearsay to be admissible, it must fit into an exception provided by the Rules of Evidence. One such exception is for “records of regularly conducted activity,” more commonly known as the “business records exception.” Tex.R. Evid. 803(6). Rule 803(6) provides that a document is properly admitted into evidence if it is established by the testimony of the custodian of records, by the testimony of other qualified witness, or by an affidavit that complies with rule 902(10). Id.; see Tex.R. Evid. 902(10). Rule 902 requires that an affidavit attesting to business records state that the document (1) was made at or near the time of the events; (2) by a person with knowledge of the events or by a person with knowledge obtained by information transmitted from a person with knowledge of the events; and (3) kept in the course of a regularly conducted business activity. Tex.R. Evid. 902(10). The witness laying the predicate for the admission of a business record does not have to have personal knowledge about the contents of the record, but must have personal knowledge about how the records are prepared. See Brooks v. State, 901 S.W.2d 742, 746 (Tex.App.-Fort Worth 1995, pet. ref’d, pet. dism’d); Butler v. State, 872 S.W.2d 227, 238 (Tex.Crim.App.1994).

Here, a registered nurse testified that she treated appellant’s boyfriend for a stab wound in 2000. She testified that she did not recall the incident, but her memory could be refreshed by the medical records. She testified that she recognized the medical record, that she was one of the registered nurses involved in the trauma, that her handwriting was on the record, that she had probably directed a co-worker to take notes during the trauma or shortly after the trauma, and that she signed the bottom of the record. The nurse testified that the medical records were kept as part of the records of St. Joseph’s Hospital. The registered nurse’s testimony laid the proper foundation and qualified the medical records as business records. See Moyer v. State, 948 S.W.2d 525, 528 (Tex.App.-Fort Worth 1997, pet. ref’d) (finding that foundation for admitting business record was laid by paramedic who testified he wrote the incident report at or near time he treated victim; that he wrote some entries from his own personal knowledge and remaining entries as they were told to him by someone with personal knowledge; and that it was regular business practice to keep and make such incident report).

We hold that the trial court did not err in admitting the medical records under the business records exception.

We overrule appellant’s third point of error.

We affirm the trial court’s judgment.