author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    Cecil Jackson HACKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00269-CR.
    Court of Appeals of Texas, Waco.
    Feb. 9, 2005.
    As Corrected March 9, 2005.

      John M. Hurley, Waco, for appellant.

      John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   CORRECTED OPINION

FELIPE REYNA, Justice.

A jury convicted Cecil Jackson Hackett of stealing $33,000 in cash through a fraudulent investment scheme. Hackett pleaded “true” to allegations of prior convictions enhancing his punishment to that for an habitual offender, and the jury assessed his punishment at life imprisonment.

Hackett contends in two issues that: (1) the State’s notice of its intent to use prior convictions for enhancement purposes was untimely because it was filed less than a week before trial; and (2) the court abused its discretion by denying his motion for mistrial after an officer testified that the victim selected Hackett’s photo from “a senes of mug books with some pictures of known offenders.”

We hold that, even though the State failed to give reasonable notice of its intent to use the prior convictions for enhancement purposes, any error was rendered harmless because Hackett did not request a continuance. And because the court’s instruction to disregard the officer’s statement was sufficient to cure any prejudicial effect, the court did not abuse its discretion by denying the motion for mistrial. Accordingly, we will affirm the judgment.

The State Must Give At Least Ten Days’ Notice Of Its Intent To Use Prior Convictions For Enhancement Purposes

Hackett contends in his first issue that the State’s notice of its intent to use prior convictions for enhancement purposes did not give him “reasonable notice” because it was given only five days before trial.

A grand jury indicted Hackett for theft of property valued at $20,000 or more, but less than $100,000 — a third degree felony. The indictment included no enhancement allegations. Five days before trial, the State filed a notice of intent to enhance punishment, alleging eight prior felony convictions which would enhance Hackett’s punishment from that for a third degree felon to that for an habitual felon. Hack-ett filed a motion to quash the enhancement notice, contending that he was entitled to at least ten days’ notice before trial. The court denied the motion.

The State must plead in some form any enhancement allegations which it intends to prove during the punishment phase of trial. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex.Crim.App.1997); Hudson v. State, 145 S.W.3d 323, 326 (Tex.App.-Fort Worth 2004, pet. ref’d); Fairrow v. State, 112 S.W.3d 288, 293 (Tex.App.-Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 454 (Tex.App.-Beaumont 2002, no pet.). To be adequate, a pleaded enhancement allegation must provide “ ‘a description of the judgment of former conviction that will enable [the accused] to find the record and make preparation for a trial of the question whether he is the convict named therein.’ ” Fairrow, 112 S.W.3d at 294 (quoting Sears, 91 S.W.3d at 454-55 (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App.1978))).

Thus, for notice to be adequate, it must be reasonably timely. See Hudson, 145 S.W.3d at 326; Fairrow, 112 S.W.3d at 294; Sears, 91 S.W.3d at 454-55. The Fort Worth, Dallas, and Beaumont courts declined to establish a minimum number of days’ notice, observing instead that ten days’ notice is presumptively reasonable. Id.

An enhancement notice which affects the range of punishment is a de facto amendment of the indictment. Because article 28.10(a) of the Code of Criminal Procedure requires a minimum of ten days’ notice for an amendment to an indictment, we hold that a minimum of ten days’ notice is required when the State files a separate pleading giving notice of enhancement allegations. Cf. Tex.Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989).

The State contends that it should be excused from providing more notice because it gave notice as soon as it discovered the existence of the prior convictions. However, the State cites no authority to support this position. Rather, the State argues that its lack of prior knowledge makes the facts of Hackett’s case significantly different from those presented in Sears, where the State knew of the defendant’s prior convictions in advance. See Sears, 91 S.W.3d at 454. We conclude that this distinction is irrelevant.

In Sears, the Beaumont court flatly rejected the proposition that the defendant had sufficient notice of the State’s intent to use a prior conviction for enhancement purposes because the State had given prior notice of its intent to use that prior conviction for impeachment purposes. Id. The court also rejected the proposition that the defense had adequate notice because the penitentiary packet for the conviction was in the State’s file, which defense counsel had reviewed. Id. Nevertheless, the issue is not whether the State had an excuse, but rather, whether the accused had sufficient notice to prepare for trial. See Hollins, 571 S.W.2d at 875; Fairrow, 112 S.W.3d at 294; Sears, 91 S.W.3d at 454-55.

The indictment charged Hackett with a third degree felony. The enhancement allegations, if found true, increased the minimum and maximum punishment ranges significantly beyond the maximum punishment provided for the offense as originally indicted (i.e., from a maximum of 10 years to a minimum of 25). Thus, we hold that the State did not provide reasonably timely notice of its intent to use the enhancement allegations.

However, Hackett sought only to quash the enhancement allegations. He did not seek a continuance. Thus, any error in the court’s denial of Hackett’s motion to quash was rendered harmless by Hackett’s failure to request a continuance. See Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App.1994); Rushing v. State, 50 S.W.3d 715, 729 (Tex.App.-Waco 2001), aff’d, 85 S.W.3d 283 (Tex.Crim.App.2002); cf. Hudson, 145 S.W.3d at 327 (defense requested postponement when counsel received mid-trial enhancement notice); Sears, 91 S.W.3d at 454 (defense requested continuance after trial court overruled objection to timeliness of enhancement notice). Accordingly, we overrule Hackett’s first issue.

The Trial Court’s Instruction Cured Any Prejudicial Effect Arising From The Officer’s Testimony

Hackett contends in his second issue that the court abused its discretion by overruling his motion for mistrial after overruling his objection to an officer’s testimony that the victim had selected Hack-ett’s photo from “a series of mug books with some pictures of known offenders.”

The officer made this statement when explaining how Hackett came to be identified as a suspect in the case. The trial court sustained Hackett’s objection to the officer’s statement. A hearing was then held outside the presence of the jury during which Hackett requested a mistrial because of the indirect reference to extraneous offenses. The court informed the parties that it would instruct the jury to disregard the statement and would overrule the motion for mistrial. The State then sought an opportunity to discuss the matter with its witness, and the court declared a recess. The trial resumed after a fifteen-minute recess. The court instructed the jury to “disregard the last answer of the witness for any purpose whatsoever,” and the officer’s direct examination continued.

A mistrial is required because of improper evidence only when the evidence 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.” Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App.2000)). Otherwise, a prompt instruction to disregard generally cures the prejudicial effect of improper testimony, even that regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000); accord Simpson, 119 S.W.3d at 272.

The officer’s characterization of those depicted in the mug books as “known offenders” suggested that Hackett had committed other crimes in the past. Thus, it improperly referenced extraneous conduct. However, Texas courts have consistently held that the prejudicial effect of such indirect suggestions can be cured by an instruction to disregard. See e.g. Drake v. State, 123 S.W.3d 596, 603-04 (Tex.App.-Houston [14th Dist.] 2003, pet. refd); Arrick v. State, 107 S.W.3d 710, 721-22 (Tex.App.-Austin 2003, pet. refd); Fairley v. State, 90 S.W.3d 903, 904-05 (Tex.App.-San Antonio 2002, no pet.).

Nevertheless, Hackett contends that his case is different because the court did not instruct the jury to disregard the officer’s statement until fifteen minutes after it had been made. We agree that the promptness of an instruction to disregard is a factor for consideration in determining the efficacy of the instruction. See e.g. Ovalle, 13 S.W.3d at 783-84; Drake, 123 S.W.3d at 604; Fairley, 90 S.W.3d at 905. However, it is not necessarily the deciding factor.

Here, the victim never wavered in his identification of Hackett as the person who stole his money. Given the strength of the State’s case and the indirect nature of the reference to extraneous conduct in the officer’s statement, we hold that the court’s instruction, though somewhat delayed, was sufficient to cure the prejudicial effect of the officer’s statement.

Accordingly, we overrule Hackett’s second issue.

We affirm the judgment.

Chief Justice GRAY concurring in a separate opinion delivered and filed February 9, 2005.

TOM GRAY, Chief Justice,

concurring.

Legislating from the bench. You will hear almost every judicial candidate say that is not the role of the judiciary and that, if elected, they will not do it. I would be hard pressed to find a better example of legislating from the bench than what the Court does in this case. The Court properly states the test which comes from prior interpretation of the statute. Then the Court simply ignores the statute as written, jettisons the interpreted test, and states what will be required.

When the statute, as written by the legislature, only requires “reasonable notice,” we do not have the right to judicially add “but in no event, less than ten days.” That truly is rewriting the statute. But I digress. The analysis is wrong. The result is right. I concur only in the result.

The Court errs in the following particulars, some of which are compound errors because they are based upon other errors:

1. Holding that the State must give no less than 10 days notice.
2. Holding that the State’s notice is a “defacto amendment of the indictment.”
3. Assuming, arguendo, that it is a de-facto amendment, the Court errs in not reviewing the “amendment” to the indictment under the law applicable to amending the indictment.
4. By requiring Hackett to file a motion for continuance to “show harm.”

DeFacto Indictment/Ten Days’ Notice (ERRORS 1, 2, AND 3)

The Court holds that when the State files a separate pleading giving notice of enhancement allegations, it must be filed a minimum of ten days before the trial date. That is because the Court holds, without citing any authority, that a sentence enhancement notice is a de facto amendment of the indictment and “the Code of Criminal Procedure requires a minimum of ten days’ notice for an amendment to an indictment.”

“but in no event less than ten days”

While 10 days notice has been held to be presumptively reasonable, the Court offers no explanation as to why anything less is treasonable as a matter of law.

The Court’s reliance on the Code of Criminal Procedure is entirely misplaced. The Code does not require a minimum of ten days’ notice to amend an indictment. It provides:

After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date of trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

TexCode Crim. PROC. Ann. art. 28.10(a) (Vernon 1989) (emphasis added). This provision places the burden on the defendant to ask for a continuance before any time requirement kicks in following an amendment to an indictment or information.

“defacto amendment”

And who, besides two justices on this Court, thinks this is an amendment? Hackett didn’t say it was an amendment. He did not ask us to consider it as an amendment. He did not even argue in the Motion to Quash or in his oral argument in support thereof, contrary to what the Court says, that notice of a sentence enhancement needs to be no less than 10 days. He contended that the notice filed by the State was unreasonably late and argued that he was entitled to reasonable notice. The State certainly did not argue it was an amendment. Just because the Court is not reversing this case on unargued error, does not mean we can still raise an issue and give an advisory opinion about something no one ever raised at trial or here. See Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App.2002) (“ordinary notions of procedural default” are violated when a Court of Appeals reverses a trial court’s decision on a legal theory not presented to the trial court by the complaining party); Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991) (the courts are without authority to render advisory opinions); Garrett v. State, 749 S.W.2d 784, 803 (Tex.Crim.App.1988) (judicial power does not include the power to issue advisory opinions).

“REVIEW AS AN AMENDMENT”

But if this is an amendment, then why does the Court not analyze the issue as an amendment issue and use the related harm analysis for untimely amendments? Aside from the fact that an amendment has to be an alteration to the indictment, which we do not have, typically, an amendment cannot be made to the indictment over the objection of the defendant after the trial has started. Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997); Sodipo v. State, 815 S.W.2d 551, 556 (Tex.Crim.App.1990); see Tex.Code CRiM. Peoc. Ann. art. 28.10(b) (Vernon 1989). However, an amendment can be made at anytime before trial. Id. at art. 28.10(a). If this wás really an amendment, and I’m not saying it was, it was made before trial, and Hackett could have asked for a ten day period to respond to the “amendment.”

But he didn’t.

Harm Analysis/Preservation (Error 4)

And because Hackett didn’t request a continuance, the Court is holding that he wasn’t harmed by the trial court’s “error.”

Is this part of the harm analysis for amending indictments or for timeliness of notice of enhancement allegations? Harm for an improper amendment to an indictment is analyzed under Rule 44.2(b) because that type of error is non-constitutional. Westfall v. State, 970 S.W.2d 590, 596 (Tex.App.-Waco 1998, pet. ref’d). I have found no case that determines an amendment error was harmless because the defendant did not request a continuance. Then is the Court’s analysis part of the harm analysis for an untimely notice of enhancement allegations? This type of error has been deemed constitutional. Sears v. State, 91 S.W.3d 451, 455 (TexApp.-Beaumont 2002, no pet.); contra Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.Dallas 2003, no pet.). The few cases that have discussed harm here have not taken into consideration at all whether or not a continuance was requested.

So where does this come from? The cases relied upon by the Court are cases in which witnesses were called that were not on the witness list supplied to the defendant. The Court fails to explain how these cases are analogous to the defacto amendment analysis.

And by requiring a motion for continuance, is the Court really saying that a request for a continuance is a preservation requirement? Are they actually holding that to preserve a complaint about unreasonable notice for appellate review the complaint must be brought to the trial court’s attention by a timely request, motion, or objection that the trial court rules on or refuses to rule on? Tex.R.App. P. 33.1. But Hackett had already obtained an adverse ruling on his motion to quash. Need there be more? Or is this more of a presentment requirement and because the request for continuance was not made, we have nothing to review? No error, no harm.

An argument can be made for either analysis. For example, in cases where defendants have been denied a challenge for cause, the request for more peremptory strikes has been characterized as a part of a preservation requirement and as a part of a harm analysis. If used as a preservation requirement, there is no need to proceed further through an error analysis if any requirement is missing. See Mathis v. State, 67 S.W.3d 918, 922 (Tex.Crim.App.2002). If used in a harm analysis, the reviewing court has already determined the denial of the challenge for cause was improper, and such denial has the harmful effect of wrongfully depriving a defendant of a peremptory challenge, as long as he requests and is denied additional peremptory challenges. See Escamilla v. State, 143 S.W.3d 814, 821 (Tex.Crim.App.2004).

Which is it here?

If a continuance is required, is it that there is no error, i.e., it is not unreasonable because the defendant obviously did not need any more time, or is it that the defendant was not harmed — yes the notice was not reasonable, but the defendant cannot opt for having the enhancement allegations dropped, and because he chose the wrong option, he did not say the magic words regarding a continuance, he loses.

Conclusion on Their Analysis

I cannot join the Court’s opinion without knowing what’s driving the decision and what’s in the opinion is not helping me make that analysis.

A Proper Analysis

With that said, the following is a proper analysis of this appeal.

Cecil Jackson Hackett was convicted of theft over $20,000. Hackett pled true to two prior felony convictions and the jury assessed punishment at life in prison. We affirm the judgment of the trial court.

In his first issue, Hackett contends that the State’s notice of its intent to enhance the punishment was untimely. The State filed its notice on July 30, 2003, the Wednesday prior to the Monday trial, alleging eight prior convictions. On July 31, 2003, the State filed an amended notice, correcting a typographical error in the seventh listed conviction. Hackett filed a motion to quash which was heard and denied on Monday, the day of trial.

Defendants are entitled to notice of pri- or convictions to be used for punishment enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997). Ten days’ notice is presumptively timely. See Fairrow v. State, 112 S.W.3d 288, 294 (Tex.App.Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.). Seven days’ notice has been held to be “ample.” Castilla v. State, No. 05-01-01776-CR, 2002 WL 31261741, *4 (Tex.App.-Dallas Oct. 10, 2002, no pet.) (not designated for publication).

The question we must decide is whether notice given five days before trial is timely. Hackett cites one case to support his claim that the State’s notice is untimely. See Sears v. State, 91 S.W.3d 451 (Tex.App.Beaumont 2002, no pet.). In Rears, the Beaumont Court determined that notice given on the Friday before a Monday trial was untimely, especially in light of the fact that the State had listed the same conviction in a notice of its intent to introduce the conviction under Texas Rule of Evidence 609 some seven days earlier. Id. at 453-455. Following the lead in Sears, the Dallas Court, in Fahroiv, held that oral notice by the trial court on the day of trial, if proper, was untimely where the State had filed a notice of extraneous offenses three days prior to trial. Fairrow, 112 S.W.3d at 294-295.

In both of these cases, the State knew of the convictions several days before notice was actually given of its intent or ability to enhance the defendants’ punishments. In Hackett’s case, on the 30th of July, the State inadvertently discovered recent convictions that it could use to enhance Hack-ett’s punishment. The State knew of two very old convictions under one TDCJ number for Hackett. And while trying to obtain the pen packets for those convictions, on the afternoon of the 30th, the State discovered a number of more recent convictions under another TDCJ number for Hackett. The State immediately, on that day, gave notice of its intent to enhance Hackett’s punishment with the additional allegations it had discovered.

The State gave notice of the convictions to be used as enhancements as soon as those convictions were discovered. Hack-ett, as the defendant, was well aware of the convictions. The issue is whether the State gave reasonable notice of its intent to use these convictions as punishment enhancements. Under these circumstances, we conclude that five days’ notice is reasonable. Hackett’s first issue is overruled.

But because the Court commits several errors in reaching the proper result, I concur only in affirming the trial court’s judgment.

      . The Court issued its original opinion affirming Hackett’s conviction on February 9, 2005. However, the opinion was dated February 9, 2004. This corrected opinion is being issued to correct the clerical error in the prior opinion. See Tex. R. App. P. 19.3(a).


source: Caselaw Access Project

author: Opinion by Justice GARZA.

license: Public Domain

text:
    Jose Angel ORTEGA, et al., Appellants, v. LPP MORTGAGE, LTD., Appellee.
    No. 13-03-310-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 10, 2005.
    Rehearing Overruled April 14, 2005.

      David E. Wood, McAllen, for appellants.
    Mark W. Walker, Passmore, Walker & Twenhafel, L.L.P., McAllen, for appellee.
    Before Justices YÁÑEZ, RODRIGUEZ and GARZA.
   OPINION

Opinion by Justice GARZA.

Appellants, Jose Angel Ortega, Rene Ortega, Mary C. Ortega, Rolando Ortega, and David Ortega, challenge a final judgment entered in favor of appellee, LPP Mortgage, Ltd., denying appellants’ petition for an injunction and granting appel-lee’s claims for monetary judgment on certain promissory notes, declaratory judgment, and attorney’s fees. Because the jury charge used in this case contained an error that probably caused the rendition of an improper judgment, we reverse the judgment and remand the cause to the lower court for a new trial.

Background

This case arises from a series of defaulted notes. In 1978, Jose Angel Ortega and his son Rene Ortega formed Ortega Farms, a partnership created to' conduct the business of farming. On September 30, 1982, Jose Angel and Rene, as partners of Ortega Farms, applied for a business loan from the United States Small Business Administration (“SBA”). The loan application was denied because Ortega Farms lacked adequate collateral. On December 10, 1982, Jose Angel and his wife, Herlinda, executed two warranty deeds, which purported to convey to Ortega Farms certain parcels of land known as Tract 1 and Tract 2. The transfer was executed to improve the financial position of Ortega Farms and to improve the likelihood of the partnership obtaining a loan.

In 1983, Ortega Farms obtained a loan of $105,000 from the First National Bank of Mercedes. The loan was secured by a first and second hen on Tract 2 and Tract 1, respectively. On May 24, 1984, Ortega obtained a loan of $114,000 from the SBA. This loan was evidenced by a promissory note payable to the SBA (“Note 1”) and secured by a deed of trust lien on Tract 1 and a separate deed of trust on Tract 2. The First National Bank of Mercedes agreed to subordinate its pre-existing security interests in Tract 1 and Tract 2 to the SBA’s deeds of trust.

Ortega Farms ceased making payments on Note 1 in 1997. On November 7, 2001, appellee purchased Note 1 from the SBA. In the same month, appellee commenced proceedings to foreclose on Tract 1 and Tract 2. Shortly after the foreclosure proceedings commenced, appellants filed a petition for a permanent injunction against appellee and asked the trial court for a temporary restraining order to prevent the scheduled foreclosure. Appellants argued that Tract 1 and Tract 2 were their homesteads and therefore exempt from forced sale. The trial court granted the TRO, but it was subsequently overruled by operation of law on December 4, 2001.

On February 11, 2002, appellee filed a counterclaim seeking a judgment against four of the appellants (the obligors) for amounts owed to appellee on five notes, including Note 1. Appellee also asserted a counterclaim for a declaratory judgment that any ownership or homestead rights held by appellants were after-acquired, subordinate, and inferior to the liens held by appellee. On June 20, 2002, appellee non-suited its claim for a money judgment on Note 1. On the same day, the trial court granted appellee’s motion for partial summary judgment as to the amounts owed on the remaining four notes.

Appellants’ claim for a permanent injunction and appellee’s counterclaim for a declaratory judgment were then tried before a jury, which found that Tract 1 and Tract 2 were not the homestead of Appellant Jose Angel Ortega prior to the execution of Note l. A final judgment was then entered in favor of appellee.

I. Exclusion of Testimony

In their first issue, appellants argue that the trial court erred by excluding certain testimony by Jose Angel and Rene.

A. Standard of Review [1-5] The admission or exclusion of evidence is a matter within the trial court’s discretion. Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 861 (Tex.App.-Corpus Christi 1999, pet. denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995)). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Alvarado, 897 S.W.2d at 754. An appellate court must uphold the trial court’s eviden-tiary ruling if there is any legitimate basis for the ruling, even if it was not previously urged. See State Bar v. Evans, 774 S.W.2d 656, 659 n. 5 (Tex.1989). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court’s ruling “probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1(a). In making this determination, the appellate court must review the entire record. See Alvarado, 897 S.W.2d at 754. Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. See Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 837 (Tex.App.-Houston [1st Dist.] 1987, writ ref d n.r.e.) (citing Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.-San Antonio 1983, writ refd n.r.e.)). The exclusion of evidence is harmless if the evidence is merely cumulative of other evidence in the record. Reina v. Gen. Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981); see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).

B. Analysis

In a single issue, appellants contend that the trial court erroneously excluded testimony of Jose Angel and Rene, which should have been admitted as an admission by a party opponent or as a statement against interest. See Tex.R. Evid. 801(e)(2) (admission by party opponent), 803(24) (statement against interest). According to appellants, the excluded testimony “showed that the deeds to the partnership were sham transactions.” Appellants allege that Jose Angel and Herlinda transferred Tract 1 and Tract 2 to Ortega Farms only because the SBA refused to make or guarantee any loans until such transfers were made. Appellants contend that the excluded testimony by Jose Angel and Rene would have established the “facts and circumstances” preceding the transfers, including the SBA’s role in necessitating and orchestrating the land transfers.

1. Testimony of Jose Angel

As a preliminary matter, we note that, at trial, appellants’ counsel failed to make an offer of proof regarding the excluded testimony of Jose Angel. See Tex.R. Evid. 103(a)(2); Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex.App.-San Antonio 2000, pet. denied) (“The failure to make an offer of proof containing a summary of the excluded witness’s intended testimony waives any complaint about the exclusion of the evidence on appeal.”). Appellants argue that the testimony should have been admitted as an admission by a party opponent or as a statement against interest, but those grounds were not argued to the trial court. See Tex.R.App. P. 33.1(a)(1). Consequently, any error regarding the exclusion of Jose Angel’s testimony has been waived, and this issue presents nothing for appellate review. See In the Interest of C.J.B., 137 S.W.3d 814, 818 (Tex.App.-Waco 2004, no pet.) (holding that a “complaint [that] does not comport with the complaint raised before the trial court ... presents nothing for ... [appellate] review”).

2. Testimony of Rene

Appellants’ counsel made an offer of proof regarding the exclusion of Rene’s testimony and raises the same complaint on appeal that he made at trial: the testimony should have been admitted as an admission by a party opponent or as a statement against interest. See Tex.R. Evid. 801(e)(2), 803(24). Having reviewed the record, we cannot conclude that the excluded testimony “probably caused the rendition of an improper judgment.” See Tex.R.App. P. 44.1(a)(1).

In appellants’ offer of proof, Rene admits that he never directly discussed the transfer of his parents’ property with the SBA. According to Rene’s testimony, he and his father were trying to obtain a loan from the SBA in 1982 when they met with Rosario Gomez, an employee of the local development council. Rosario helped Rene and his father complete their loan application and other related paper work. During this process, Rosario asked the men what they could offer as collateral for the loan. Rene initially offered farming equipment, but Rosario objected, explaining that the equipment was already encumbered by a lien. Rene then offered his father’s property, Tract 1 and Tract 2, as collateral.

Next, a meeting was arranged at a local restaurant between Rosario, Rene, Jose Angel, and an SBA representative, Ramiro Valdez. During the meeting, Ramiro assured the men: “We will try to help you somehow.” Ramiro and Rosario then moved to a part of the restaurant where they “talked amongst themselves.” After the meeting, Rosario told the Ortegas that the SBA would “[give] the okay” if the property were transferred to the partnership. According to Rene, “[t]he man from the SBA” was the person “who first brought up the transfer of the land”; however, on cross-examination, Rene admitted that he was not part of the discussion between Ramiro and Rosario but had learned everything through Rosario. In particular, Rene explained that “the man from the SBA” never told him to transfer the property to the partnership.

The excluded testimony by Rene is largely, if not entirely, cumulative of testimony given by Jose Angel that was not excluded. On direct examination, Jose Angel gave the following testimony:

Q. [By appellants’ counsel] Can you describe why the land that you previously discussed ... was put into the part- , nership?
A. In order to locate or find money and to be able to work for the land.
Q. And how was that done?
A. The SBA would arrange the paperwork, and they worked that out, some gentleman there named Ramiro Valdez and Rosario, I don’t recall very well the name, Gomez. They worked out the paperwork and they would send it and knew how things were.

This testimony tends to show the same facts that Rene’s excluded testimony would have shown: the land was transferred in order to obtain a loan, and the SBA and Rosario completed the paperwork related to the transaction. Reversible error cannot be predicated on the exclusion of cumulative evidence. See Gee, 765 S.W.2d at 396; Reina, 611 S.W.2d at 417. Appellants’ first issue is overruled.

II. Error in the Jury Charge

In their second issue, appellants contend that the judgment should be reversed and the cause remanded because the trial court erred by submitting jury question number one as the first question and jury question number two as the second question. According to appellants, the questions should have been submitted in reverse order and without any conditional language.

A. Standard of Review

The goal of a jury charge is to submit the issues for decision logically, simply, clearly, fairly, correctly, and completely, and the trial court has broad discretion in accomplishing that end as long as the charge is legally correct. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex.1999). A trial court must submit “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex.R. Civ. P. 277; see also Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002). A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Williams, 85 S.W.3d at 166 (citing Tex.R. Civ. P. 278). This is a substantive, non-discretionary directive to trial courts, requiring them to submit requested questions to the jury if the pleadings and any evidence support them. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). A trial court’s error in refusing to submit a question is reversible if it “probably caused the rendition of an improper judgment.” Tex. R.Apf. P. 44.1(a)(1).

B. Analysis

Question number one asked, “Did Jose Angel Ortega own a ‘homestead’ interest in Tract 1 and Tract 2 immediately preceding the execution of the Deeds of Trust in May 1984?” Question number two asked, “Did the Deeds to the Partnership constitute a pretended sale involving any condition of defeasance?” The charge allowed the jury to answer question number two only if it first answered “yes” to question number one. That is, the jury could decide whether the deeds to the partnership executed in 1982 were part of a pretended sale only if it first decided that Jose Angel had a homestead interest in 1984.

At trial, appellants objected to the ordering of the questions and to the conditional language, but their objections were overruled. See Johnson v. Johnson, 869 S.W.2d 490, 492 (Tex.App.-Eastland 1993, writ denied) (“Under Tex.R. Civ. P. 274, the proper method of preserving error as to a question, definition, or instruction actually submitted is by objection, regardless of whether the issue is relied upon by the complaining party.”). The trial court also overruled appellants’ motion for a new trial, which argued, inter alia, that the court erred by submitting questions one and two in reverse order.

We agree with appellants and conclude that the jury charge was erroneous. The jury could not answer question number one properly without first deciding question number two. The answer to question number one depended on the answer to question number two because whether Jose Angel had a-homestead interest in 1984 (question number one) depended, in part, on whether the 1982 transfers were valid (question number two). If, on the one hand, the 1982 transfers were valid, then Jose Angel would not have had a homestead interest in 1984 because Ortega Farms would have held legal title to the land. See First Interstate Bank v. Bland, 810 S.W.2d 277, 286 (Tex.App.-Fort Worth 1991, no writ) (stating that only an owner of property can claim a homestead exemption). The answer to question number one would therefore be “no.” If, on the other hand, the 1982 transfers were part of a pretended sale, Jose Angel could have had a homestead interest in 1984 because he would not have been divested of legal title to the property. See Tex. Const, art. XVI, § 50(c) (“All pretended sales of the homestead involving any condition of defeasance shall be void.”). In such case, the answer to question number one could be either “yes” or “no,” depending on whether the homestead interest survived until 1984. But more importantly, if the deeds to the partnership were executed as part of a pretended sale, the answer to question number one would be irrelevant. A pretended sale of the homestead cannot transfer legal title. See id. If the deeds to the partnership were executed as part of a pretended sale, the partnership could not have transferred any interest in the property to the SBA or to appellee because the partnership would not have had any legal interest in the property. Consequently, if the deeds to the partnership were part of a pretended sale, appellee would have no legal interest in the property and could not foreclose on it, regardless of whether Jose Angel had a homestead interest in 1984 (i.e., question number one).

In short, the jury charge put the cart before the horse: question number two should have been asked first, followed by question number one. The trial court erred by ordering the questions so that question number two could be answered only if question number one were answered affirmatively. See Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex.App.-Dallas 2002, pet. denied) (“controlling issues of fact must be submitted to the jury”) (citing Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex.App.-Corpus Christi 1990, writ denied) (op. on reh’g)). The error probably caused the rendition of an improper judgment because the ordering of the questions and the jury charge’s conditional language prevented the jury from answering a controlling issue that could have changed the outcome of the ease regardless of the jury’s answer to question number one. See Tex.R.App. P. 44.1(a)(1). Accordingly, appellants’ second issue is sustained.

III. Factual Sufficiency

In their third issue, appellants argue that the jury’s answer to question number one was against the great weight and preponderance of the evidence and was manifestly unjust. We will not decide this issue because the relief to which appellants would be entitled if it were sustained (i.e., reverse and remand) is no greater than the relief already granted to appellants. See Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989) (stating that court of appeals can reverse and remand for new trial if evidence, is factually insufficient).

IV. Statute of Limitations

Appellants’ fourth issue on appeal contends that the trial court erred by refusing to grant appellants’ motion for a directed verdict based on the statute of limitations. Under appellate rule 38.1(h), “The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 88.1(h). Appellants’ fourth issue is inadequately briefed because it is no more than a contention. It asserts that appellee’s counterclaim was time-barred by the statute of limitations but offers no “clear and concise argument” to support the assertion. See id. Appellant’s fourth issue presents nothing for this Court to review and will not be addressed.

V. Conclusion

Having sustained appellants’ second issue, this Court reverses the judgment of the trial court and remands the cause for further proceedings consistent with this opinion.

      . Rene, David, and Rolando are Jose Angel’s sons. Mary is Rene’s wife.

      . This appeal deals primarily with the effect on Note 1, as appellants have not challenged the partial summary judgment rendered on the other four notes.

      . The trial court denied the homestead interests claimed by Rene, Maty, Rolando, and David by a directed verdict. The jury was only asked to determine whether Jose Angel had a homestead interest.


author: TOM GRAY, Chief Justice.

text:
    Ronald Eddie DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00270-CR.
    Court of Appeals of Texas, Waco.
    Feb. 16, 2005.
    Ronald Eddie Duncan, Conroe, pro se.
    Michael A. McDougal, Montgomery County Dist. Atty., Conroe, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER ON “PETITION TO DISMISS” AND EACH “WRIT OF ERROR”

TOM GRAY, Chief Justice.

On January 26, 2005, Duncan filed a “Memorandum and Petition to Dismiss for Lack of Subject Matter Jurisdiction” and three writs of error. The “Petition” and each “Writ” is denied.

Second Warning

On January 5, 2005, this Court warned Duncan that he should file “only those documents necessary to the disposition of his appeal in compliance with the Texas Rules of Appellate Procedure.” Duncan was advised that “failure to comply with the rules may result in a conclusion that his appeal lacks merit and is being pursued as an abuse of the judicial process.” Duncan was advised that such a determination will result in the dismissal of his appeal.

The “Petition” and “Writs” come dangerously close to causing us to dismiss Duncan’s appeal. The “Petition” and “Writs” contain no references to the record because the record has not yet been filed. The record has not been filed because Duncan has not paid for the record. Duncan contends that he is unable to pay for the record and is currently appealing a decision, in this appeal, that he is not indigent. Duncan v. State, 158 S.W.3d 606 (Tex.App.-Waco 2005, order).

Until the appeal of the trial court’s determination that Duncan is not indigent is resolved, pleadings such as those filed on January 26, 2005, are meritless because they cannot reference a record that does not yet exist.

This is our Second, and Final, Warning to Duncan that documents such as those referred to above should not be filed with this Court. They evidence a total failure by Duncan to comply with the appellate rules or attempt to conform his request for relief to the issues properly before this Court.

In this appeal, we will first address the merits of Duncan’s appeal of the trial court’s determination that Duncan is not indigent. Upon completion of that portion of the appeal, Duncan can then address the merits of his complaint, once we have the record, in a brief with proper references to the record as required. Tex.R.App. P. 38.1(h).


author: FELIPE REYNA, Justice.

text:
    Ricky Dale BASS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00285-CR.
    Court of Appeals of Texas, Waco.
    Feb. 16, 2005.

      John R. Gaines, Smither, Martin, Henderson & Blazek, P.C., Huntsville, for appellant.
    Ray Montgomery, Leon County Dist. Atty., Centerville, Sue Korioth, Sue Ko-rioth, P.C., Dallas, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Ricky Dale Bass of felony driving while intoxicated. The court assessed Bass’s punishment at seven years’ imprisonment. Bass contends in his sole issue that the evidence is legally insufficient to prove the he has two or more prior DWI convictions because the State failed to prove that any of Bass’s prior DWI convictions was for an offense committed within 10 years of the date he committed the present offense and because his attorney’s verbal stipulation did not establish the requisite timing for the prior convictions. We will affirm.

The indictment alleges that Bass committed the present offense on or about February 6, 2001; that Bass had prior DWI convictions in 1985, 1992, and 1995; and that the 1985 and 1995 convictions were for offenses which were “committed within ten (10) years from the date of the commission of the primary offense.” Before voir dire, the parties discussed whether the prior convictions should be mentioned during voir dire and whether Bass would stipulate to them. Bass’s counsel stated that Bass would “stipulate to the two misdemeanors” (the 1985 and 1992 convictions).

When the prosecutor read the indictment to the jury, he omitted the allegation regarding the 1995 felony DWI conviction. Bass pleaded “not guilty” to the primary charge but pleaded “true” to the allegations of prior misdemeanor convictions. No further mention was made of the prior convictions until Bass took the stand in his own defense.

Bass began his testimony by admitting that he had been convicted of misdemean- or DWI in 1985 and in 1992 and that he was convicted of felony DWI in 1995. On cross-examination, the prosecutor showed him a copy of the penitentiary packet for the 1995 conviction and confirmed that it reflected his February 1995 conviction for felony DWI. Because of the pretrial stipulation, the State did not offer the judgments for the prior convictions in evidence. Nor did the parties enter a written stipulation in evidence.

Bass contends in his sole issue that the evidence is legally insufficient because the State failed to prove that at least one of his prior DWI convictions was for an offense “committed [within] 10 years before the offense for which [he was] being tried was committed.” See Act of May 30, 1999, 76th Leg., R.S., ch. 1364, § 12, 1999 Tex. Gen. Laws 4606, 4610 (amended 2001) (current version at Tex. Pen.Code Ann. § 49.09(e) (Vernon 2003)).

The Court of Criminal Appeals has determined that a defendant who stipulates to prior DWI convictions in a felony DWI prosecution “has lost the ability to complain about the remoteness of the prior conviction[s].” Smith v. State, 158 S.W.3d 463, 465 (Tex.Crim.App.2005). Nevertheless, Bass contends that the “stipulation” in his case is ineffective because it does not comply with the requirements for stipulations set out in article 1.15 of the Code of Criminal Procedure.

Article 1.15 requires a defendant’s written consent for the stipulation of evidence. See Tex.Code CRIM. PROC. Ann. art. 1.15 (Vernon Supp.2004-2005). “By its plain language [however], Article 1.15 applies only to cases in which a jury trial has been waived.” Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000). Because Bass’s case was tried to a jury, article 1.15 does not apply. Id.

We also note that Bass pleaded “true” to the prior DWI allegations. This plea relieved the State of its burden to prove the enhancement allegations. See Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981); Manning v. State, 112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref d).

Accordingly, we overrule Bass’s sole issue and affirm the judgment.

      . Article 1.15 provides:
      No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.
      Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp.2004-2005) (emphasis added).


author: ANNE GARDNER, Justice.

text:
    Leniskie Tyree GUY, Appellant, v. The STATE of Texas, State.
    No. 2-03-411-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 17, 2005.
    Rehearing Overruled March 10, 2005.

      Paul Francis, Arlington, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallin, Chief Appellate Div., and Kimberly Wesley, Miles Brissette and Tim Bednarz, Asst. Dist. Attys. for Tar-rant County, Fort Worth, for Appellee.
    Panel B: HOLMAN, GARDNER and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted for possession of a controlled substance, cocaine, of more than four grams but less than two hundred grams with the intent to deliver. Appellant pleaded not guilty and was tried to a jury, which returned a guilty verdict. The court sentenced Appellant to twenty-five years’ confinement. In four issues, Appellant argues that (1) the evidence is factually insufficient to prove Appellant possessed cocaine; (2) the evidence is factually insufficient to prove Appellant intended to deliver cocaine; (3) the trial court erred in admitting items into evidence that had no connection with Appellant and therefore were irrelevant; and (4) the trial court erred in overruling Appellant’s objection to the State’s argument striking at Appellant over his attorney’s shoulder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2002, Fort Worth police officers executed a search warrant at a duplex located in Fort Worth. Narcotics detective T.L. Howard received information that drugs were being sold from the duplex in question. Based on this tip, Detective Howard made a drug buy from the location using a confidential informant. Detective Howard used this information to obtain the search warrant for the location.

Detective Howard conducted surveillance of the location before executing the warrant, during which time he observed “quite a bit of traffic flow” in and out of the location and observed a male dressed in red out front directing vehicle and pedestrian traffic, whom he identified at trial as Appellant. Detective Howard described that Appellant was in front of the residence and seemed to be directing the activity and directing people “where to park to go into the residence.” Detective Howard stated that during a thirty to forty minute period, he observed at least twenty people enter the residence, typically staying only a short period of time. In Detective Howard’s opinion, based on his six years’ experience in narcotics investigation, this activity was typical activity seen at a “crack house.” After conducting surveillance at the location on the morning of December 3, 2002, Detective Howard proceeded to the SWAT office to conduct a briefing with the officers who would be executing the search warrant. Detective Howard explained that SWAT officers executed the search warrant because other police officers had encountered an armed individual at the location in the past and gang members were known to frequent the location.

Detective Howard testified that as SWAT executed the warrant, he and other officers remained away from the scene until SWAT indicated the residence was secure. Once secured, Detective Howard went inside the residence and began to collect evidence. Appellant had already been placed under arrest and was seated on a couch. Detective Howard testified that he collected a “baggie that contained crack rocks” that was on the floor within a foot or less of Appellant’s feet. Detective Howard also collected a set of digital scales and a couple of razor blades from a counter directly above Appellant’s shoulder and within Appellant’s reach. Detective Howard testified that digital scales and razor blades are typically found at locations where narcotics are packaged and sold. He also recovered a dark powdery substance and a light cream powdery substance, and although they did not test positive for a controlled substance, he testified that it was typical to find other substances such as these that are used to mix with narcotics to increase their bulk. Additionally, Detective Howard recovered a “baggie of marijuana” from Appellant’s front jacket pocket.

Furthermore, Detective Howard testified that a man and woman, who had arrived together in the same vehicle, were detained outside the location. As SWAT arrived, the woman was exiting the location, and the man was sitting in a vehicle outside the location. The woman was in possession of a glass crack pipe, and Detective Howard recovered a Brillo pad, glass pipe, push rod, and a yellow baggie containing an unidentified residue from the vehicle. Detective Howard stated that the Brillo pad, glass pipe, and push rod are typically used in smoking crack.

SWAT officer Ken Clowers was also present at the location when the warrant was served. Officer Clowers stated that he was assigned to provide cover for the two officers who would be forcing entry into the location and that he was the first member of the SWAT team to approach the house. He stated that as he approached, a woman was exiting the residence, and he pulled her away from the door. Officer Clowers stated that the door to the location was open; therefore, he was the first person to make entry into the residence.

Officer Clowers testified that upon entering, he saw Appellant sitting on a couch. Officer Clowers stated that Appellant began to rise from the couch and made a throwing motion, dropping a clear plastic baggie out of his hand onto the floor. Officer Clowers stated that he approached Appellant and pulled him to the ground. Officer Clowers testified that he had constant visual contact of Appellant from the time he entered the location through the time he saw Appellant drop the baggie of crack, approached Appellant, and pulled him to the ground. Officer Clowers stated that, in his professional opinion as a police officer, Appellant was in possession of the baggie of crack. Further, Officer Clowers stated that he stood with Appellant and the baggie of crack until Detective Howard arrived and took possession of the narcotics. In court, Officer Clowers identified the clear plastic baggie containing crack that was recovered from the floor by Detective Howard as the baggie he saw Appellant drop from his hand as Officer Clowers entered the location.

H.G. Tebay, Assistant Commander of the Metro Narcotics Intelligence Unit, testified about the narcotics and evidence recovered from the location and described how this evidence was common to the drug trade. He testified in response to a hypothetical posed by the State that the type of digital scale recovered, along with the razor blades, would indicate to him that these instruments were used in cutting up a larger amount of crack cocaine. He testified that the amount of crack recovered, which was over fifteen grams, would not be in the possession of a “street user” because a user typically possessed approximately a tenth of a gram. He concluded that in his opinion the amount of crack cocaine in this case would be a dealer amount.

The State next called Stacey Smith, a forensic scientist with the Fort Worth Police Department crime lab. She testified that she tested the substance in the baggie that was recovered from the location and confirmed that it tested positive for cocaine. She described that she conducted a presumptive test on every piece of the material recovered in the baggie and confirmed that the presumptive test indicated the possibility of cocaine. Ms. Smith then stated that she tested four pieces of the substance in the baggie using a gas chro-matograph, and each piece tested positive for the presence of cocaine. Ms. Smith also testified that these four pieces weighed 6.13 grams and that the total weight of the crack was 15.43 grams.

FACTUAL SUFFICIENCY

Standard of Review

In two points, Appellant argues that the evidence was factually insufficient to prove that he possessed cocaine and that he intended to deliver cocaine.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “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.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Possession

An accused commits an offense under the Texas Controlled Substances Act if he intentionally or knowingly possesses a controlled substance. Tex. Health & Safety Code Ann. § 481.115(a) (Vernon Supp. 2004-05). A person possesses a substance when he exercises “actual care, custody, control, or management” over the substance. Tex. Penal Code Ann. § 1.07(a)(39) (Vernon 2003). In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew that the matter possessed was contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Hall v. State, 86 S.W.3d 235, 240 (Tex.App.-Austin 2002, pet. ref'd); Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Jackson v. State, 807 S.W.2d 387, 389 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd).

When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively Jink the accused to the contraband. Deshong, 625 S.W.2d at 329. The factors to be considered in establishing an affirmative link include the following: (1) defendant’s presence when search warrant was executed; (2) whether the contraband was in plain view; (3) defendant’s proximity to and the accessibility of the narcotic; (4) whether defendant was under the influence of narcotics when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) the presence of odor of the contraband; (10) the presence of other contraband or drug paraphernalia; (11) defendant’s ownership or right to possession of the place where the controlled substance was found; and (12) whether the place the drugs were found was enclosed. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Jones v. State, 963 S.W.2d 826, 830 (Tex.App.-Texarkana 1998, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. refd).

Based on our review of the record, we conclude that the evidence was factually sufficient to prove Appellant possessed cocaine. Officer Clowers personally observed Appellant dropping the baggie of crack cocaine out of his hand; he maintained a constant visual of Appellant and the baggie; and he identified the baggie in court as the same one he saw on the day in question. This evidence alone affirmatively links Appellant to the cocaine. See Dickerson, 866 S.W.2d at 701 (holding that testimony of officer who saw defendant holding crack pipe was sufficient to affirmatively link defendant to the contraband); Jarrett v. State, 818 S.W.2d 847, 848-49 (Tex.App.-Houston [1st Dist.] 1991, no pet.) (holding evidence that Appellant was arrested holding crack pipe that contained cocaine residue was sufficient to prove Appellant possessed cocaine). And there were additional affirmative links, including evidence that (1) the baggie was within Appellant’s proximity and accessible to him; (2) marijuana was found on Appellant; and (3) drug paraphernalia was recovered within Appellant’s reach.

Appellant presented the testimony of Janecia Dansby to contradict Officer Clow-ers’s testimony. Ms. Dansby, who was present inside the location when the warrant was executed, testified that she did not see Appellant in possession of the baggie, nor did she observe him drop a baggie on the floor. Additionally, on cross-examination, Officer Clowers acknowledged that he did not indicate on his report that he had observed Appellant drop the baggie of crack. But he did reiterate that he told Detective Howard he had seen Appellant drop the baggie. Ultimately, the jury was the sole judge of the credibility of the witnesses, and it was their duty to resolve the conflicts in the evidence. Cass v. Stephens, 156 S.W.3d 38, 66, (Tex.App.-El Paso 2004, no pet. h.).

Based on our review of the record, we hold that the evidence was factually sufficient to establish that Appellant was in possession of cocaine. Thus, Appellant’s point is overruled.

Intent to Deliver

Intent to deliver may be proved by circumstantial evidence, including evidence surrounding its possession. Rhodes v. State, 913 S.W.2d 242, 251 (Tex.App.Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Cim.App.1997), cert. denied, 522 U.S. 894, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997). Additionally, intent to deliver may be inferred from the quantity of drugs possessed and from the manner in which they are packaged. Id. Courts have considered several factors in determining such intent, including the following: (1) the nature of the location where the defendant was arrested; (2) the quantity of drugs the defendant possessed; (3) the manner of packaging of the drugs; (4) the presence or absence of drug paraphernalia (for use or sale); (5) whether the defendant possessed a large amount of cash in addition to the drugs; and (6) the defendant’s status as a drug user. Jordan v. State, 139 S.W.3d 723, 726 (Tex.App.-Fort Worth 2004, no pet.). Expert testimony may be introduced to prove intent to deliver. Id.

As fully set out above, the State introduced the following evidence to establish Appellant’s intent: (1) the testimony of Detective Howard, who testified that in his opinion, this location was a “crack house”; (2) testimony regarding the traffic ■flow in and out of the residence; (3) testimony that Appellant was seen directing traffic to the location; (4) evidence that the cocaine recovered from Appellant had a total weight of 15.43 grams, which in Officer Tebay’s opinion constituted a dealer amount; (5) evidence of drug paraphernalia located inside the residence within Appellant’s reach and on a person exiting the residence; and (6) marijuana found inside Appellant’s jacket pocket.

Appellant argues there is evidence contradicting the State’s proof. Appellant states that only 6.13 grams of the substance in the baggie was positively tested and identified as crack. However, the State is not required to test each individual piece in the baggie to confirm the presence of cocaine. See Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App.2003) (holding that under the new Health and Safety Code definition, the State is no longer required to determine the amount of controlled substance and the amount of adulterant and dilutant that constitute the mixture). Additionally, Appellant points to the fact that no money was recovered at the location; he was not identified as a drug dealer, nor was he identified as being involved in prior drag transactions at the location; no drug paraphernalia was found on him; no weapons were found at the location; and no one saw him deliver anything. Appellant also points to the testimony of his sister, who stated that she took Appellant to the location at approximately 2:30 in the afternoon, to show that he was not directing traffic in front of the residence. However, Detective Howard testified that he observed Appellant directing traffic that morning and Appellant’s sister admitted that she had no knowledge of what Appellant was doing during that time. Finally, Appellant •points us to the testimony of his sister and Janecia Dansby, who both testified that, in their opinions, this residence did not have a reputation as a “crack house.” But this testimony was contradicted by other evidence as detailed above.

When conducting a factual sufficiency review, we must give deference to the jury’s determination of the credibility and demeanor of the witnesses. Zuniga, 144 S.W.3d at 481. In addition, when faced with conflicting evidence, the appellate court presumes the trier of fact resolved any conflict in support of the verdict. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999). Based on our review of the record, we conclude that when considering all of the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Appellant possessed cocaine with the intent to deliver. Thus, Appellant’s point is overruled.

ADMISSION OF EVIDENCE

Appellant also argues that the trial court erred in admitting items into evidence that he contends had no connection to him and were therefore irrelevant.

An appellate court reviews a trial court’s decision on whether to admit or exclude evidence under an abuse of discretion standard of review. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). A trial court’s determination on admissibility of evidence will not be disturbed unless there is a clear abuse of discretion. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1986). The trial court’s ruling will be upheld as long as it is within the “zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391.

A trial court’s determination of relevancy is not disturbed absent an abuse of discretion. Id. Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Tex.R. Evid. 401. Intent to deliver may be proved by circumstantial evidence, including evidence surrounding its possession. Rhodes, 913 S.W.2d at 251.

At trial, the State introduced drug paraphernalia into evidence that was seized from an occupied vehicle parked outside the residence. This evidence consisted of a Brillo pad, push rod, and glass pipe, instruments identified by Detective Howard as typically used to smoke crack. Appellant objected to this evidence on the basis that it was irrelevant to the offense charged against him and it had no connection with any individuals inside the residence. The trial judge asked if Appellant objected on any other basis, but Appellant objected only on the basis of relevance. The State argued that it was circumstantial evidence that “there’s drug delivery going on” and the paraphernalia showed that the person in the vehicle was a customer. The trial court initially sustained the objection. Subsequently, the State connected the occupant in the vehicle to the woman who had been detained exiting the location as SWAT prepared to enter.

Detective Howard testified that the woman was associated with the man who was in the car and that she was found in possession of a crack pipe. After the State connected the man in the vehicle with the woman who had entered the residence, the State reoffered the items into evidence. Again, Appellant objected, but he was overruled by the trial court.

Appellant argues that the evidence located in the vehicle was irrelevant because it was not shown to have any connection with Appellant. However, the State demonstrated that the evidence was relevant to the issue of Appellant’s intent to deliver by connecting the woman in the residence to the vehicle in which the contraband was found. The State argues that the drug paraphernalia recovered from the woman and the vehicle indicated the presence of customers who were at the residence to purchase crack cocaine. With the connection between the contraband in the vehicle and the residence, along with the scales, razor blades, and testimony that Appellant was seen directing traffic in front of the location, this evidence did have a tendency to prove that Appellant possessed crack cocaine with intent to deliver. Accordingly, the court was within its discretion in finding the evidence relevant.

Under the rules of evidence, once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible unless the opponent of the evidence demonstrates that it should be excluded because of some other provision, whether constitutional, statutory, or evi-dentiary. Montgomery, 810 S.W.2d at 376. In his brief, Appellant refers to Rule 403, which provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Tex.R. Evid. 403. However, Appellant failed to specifically make a Rule 403 objection at trial, instead relying solely on relevance. Because Appellant did not raise a separate trial objection to the evidence based upon Rule 403, this argument is not properly before this court. Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46(1997); see also Montgomery, 810 S.W.2d at 388 (holding that objection based upon Rule 403 is required before trial court -will balance probativeness and prejudice); Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App.1991) (expressing that when admitting evidence, the trial judge does not sua sponte engage in balancing the probative value against the prejudice but does so only upon sufficient objection invoking Rule 403).

We therefore hold that the trial court did not abuse its discretion in admitting evidence of the contraband found in the vehicle outside the location. Thus, Appellant’s point is overruled.

JURY ARGUMENT

Additionally, Appellant argues that the trial court erred in overruling his objection to the State’s argument to the jury that he contends struck at him over his attorney’s shoulder. During its closing argument, the State made the following remarks:

The scales are there. The scales that nobody sees. None of the defense witnesses got a chance to see when they’re sitting there on the countertop with the razor blades, sitting around a coffee table with a pot on it, obstructing view somewhat, sitting there for 15 or 20 minutes and nobody knows anybody’s names. Folks, that’s a crack house. Clear as day. It’s a crack house.
The part of society you’re in now, you have the last line. You get to go back and decide whether or not he’s thumbs up or thumbs down guilty for delivery. It’s a difficult decision because the power’s in your hands. You get to go back and tell him what he already knows, what Ms. Johnson knows, what Mr. Snell knows, what all his friends back here know, that 3837 Waldorf in Fort Worth, Tarrant County, Texas, is a crack house.

Appellant’s counsel, Mamie Johnson, objected on the basis of “throwing my name in it and the other attorney as to what we know.” The objection was overruled. Appellant argues that this statement was an accusation that Appellant’s counsel knowingly presented perjured testimony and further contends that the location did not have a reputation as a crack house. Appellant argues that this comment prejudiced the jury because it conveyed to them that Appellant’s counsel knew the location was a crack house and that counsel would do anything, even suborn perjury, to obtain an acquittal of their client.

There are four generally permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). Generally, a remark that strikes at the defendant through his counsel is impermissible because such attacks only inflame the minds of the jury to the defendant’s detriment. Wilson v. State, 938 S.W.2d 57, 62 (Tex.Crim.App.1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002); Coble v. State, 871 S.W.2d 192, 205 (Tex.Crim.App.1993); McMurrough v. State, 995 S.W.2d 944, 947 (Tex.App.-Fort Worth 1999, no pet.). Reviewing courts are espe-daily disturbed about final arguments that result in uninvited and unsubstantiated accusations of improper conduct directed at a defendant’s attorney. McMurrough, 995 S.W.2d at 947.

Practically speaking, it is difficult to articulate a precise rale to determine when a prosecutor is striking over the defense counsel’s shoulders and when he is making a proper jury argument. Phillips v. State, 130 S.W.3d 343, 356 (Tex.App.-Houston [14th Dist.] 2004, State’s pet. granted, appellant’s pet. refd). However, a prosecutor risks improperly striking at a defendant over the shoulder of counsel when the argument refers to defense counsel personally and when the argument explicitly impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). In the present case, the State injected Appellant’s counsel personally into its closing argument. We do not agree with the State that this argument was invited by Appellant’s counsel. Further, this statement was outside the bounds of permissible jury argument. See id. (finding State’s argument that referred to counsel personally and suggested counsel wanted to divert the jury from the truth was improper); McMurrough, 995 S.W.2d at 947 (holding State’s argument that insinuated Appellant’s counsel improperly invented Appellant’s defense was improper because it was not based on evidence and it constituted an outside-the-record attack on defense counsel’s integrity). Likewise, in the present case, the State’s argument brought into question Appellant’s counsel’s integrity and was not based on the evidence. Thus, the argument was improper.

Having found that the argument was improper, we must determine whether the argument constituted reversible error. Mosley, 983 S.W.2d at 259; McMurrough, 995 S.W.2d at 947. Improper comments on defense counsel’s honesty do not amount to a constitutional violation. Mosley, 983 S.W.2d at 259; McMwrough, 995 S.W.2d at 947. Such comments constitute “other errors” within Rule 44.2(b). Tex.R.App. P. 44.2(b); Mosley, 983 S.W.2d at 259. A nonconstitu-tional error “that does not affect substantial rights must be disregarded.” Tex. R.App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000). Even when arguments exceed the boundaries of permissible arguments, they will not constitute reversible error unless they are manifestly improper, violate a mandatory statute, or inject new, harmful facts into the case. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). In determining whether Appellant’s substantial rights were affected, we consider (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). MaHinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.

In analyzing the State’s comment under these factors, we conclude that the improper statement was harmless. The State made one reference to Appellant’s counsel and did not explicitly accuse them of lying. Nor do we believe that this comment rises to the level of an accusation that Appellant’s counsel presented perjured testimony. Additionally, the State did not make this statement again, nor did it make any other reference to Appellant’s counsel. See Rudd v. State, 921 S.W.2d 370, 372 (Tex.App.-Texarkana 1996, pet. ref'd) (stating that improper comment was made briefly and only once and, therefore, was likely to have had little effect on the jury); Holmes v. State, 962 S.W.2d 663, 675 (Tex.App.-Waco 1998, pet. refd, untimely filed) (holding that improper jury argument was harmless when State did not repeat the argument, and it offered overwhelming evidence establishing guilt).

Appellant relies on several cases to support his argument that this improper comment warrants reversal. However, those cases involved egregious accusations, which we conclude is not the case here. Therefore, while we do not condone the complained-of argument, we hold that, when considered in context, the argument did not amount to severe misconduct on the part of the State.

The second factor is easily dispensed with, as no curative instruction was given because the objection was overruled. The third factor favors the State. As was discussed under our analysis of the factual sufficiency of the evidence, there was ample evidence, absent this comment by the State, that Appellant possessed crack cocaine with the intent to deliver.

After analyzing the improper statement, we conclude that the error did not affect Appellant’s substantial rights and that it was, therefore, harmless. Thus, we overrule Appellant’s point.

CONCLUSION

Having overruled all Appellant’s points, we affirm the trial court’s judgment.

      . See Gomez v. State, 704 S.W.2d 770, 771-72 (Tex.Crim.App.1985) (finding accusation that defense manufactured evidence constituted reversible error); Fuentes v. State, 664 S.W.2d 333, 335-37 (Tex.Crim.App.1984) (concluding argument that defense counsel was "in bad faith like usual” and that evidence of police misconduct was "garbage” warranted reversal); Bell v. State, 614 S.W.2d 122, 123 (Tex.Crim.App.1981) (deciding statement that defense counsel's duty is to get his client off, even if that means putting on witnesses who are lying, warranted mistrial); Lewis v. State, 529 S.W.2d 533, 534 (Tex.Crim.App.1975) (finding statement that defense counsel had not taken oath to seek justice and that they did not want truth to come out required reversal); Boyde v. State, 513 S.W.2d 588, 591 (Tex.Crim.App.1974) (determining statement by prosecutor that the jury would never find him accepting stolen money and stolen merchandise as a fee and “trying to get a murder-” constituted reversible error); Bray v. State, 478 S.W.2d 89, 89-90 (Tex.Crim.App.1972) (holding that prosecutor’s comment that he was grateful he did not have to make his living representing the likes of defendant constituted reversible error); Jones v. State, 151 Tex.Crim. 115, 205 S.W.2d 590, 592-93 (1947) (deciding argument that defense counsel had fabricated the defense required reversal). But see Mosley, 983 S.W.2d at 258-60 (holding that closing statement that implied defense counsel wanted to divert jury from the truth was "mildly inappropriate” and was not reversible error because the statement did not directly accuse defense counsel of lying or manufacturing evidence); Brantley v. State, 48 S.W.3d 318, 330-31 (Tex.App.-Waco 2001, pet. ref’d) (finding that statements that defense counsel wanted jury to "chase rabbits” and warning jury to not fall for defense “tricks” were harmless).


author: FELIPE REYNA, Justice. Chief Justice GRAY

text:
    Heath Matthew HERRING, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00207-CR.
    Court of Appeals of Texas, Waco.
    Feb. 23, 2005.

      Stephen Taylor, Humble, for appellant.
    Ray Montgomery, Leon County Dist. Atty., Whitney T. Smith, Leon County Asst. Dist. Atty., Centerville, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   MEMORANDUM OPINION

FELIPE REYNA, Justice.

In a bench trial, the court convicted Heath Matthew Herring of aggravated robbery. Herring pleaded true to an enhancement allegation, and the court sentenced him to sixteen years’ imprisonment. Herring contends in two issues that (1) he received ineffective assistance of counsel at trial and (2) the evidence is legally insufficient to prove that he used a knife during the course of the robbery. Because we find that the evidence is legally insufficient to prove that Herring used a knife during the course of the robbery, we will modify the judgment to reflect a conviction for the lesser-included offense of robbery and remand this cause to the trial court for a new punishment hearing.

In Herring’s first issue, he cites numerous acts and omissions of counsel which he contends demonstrate that he received ineffective assistance of counsel. However, the record before us is not adequately developed to reflect the reasons for counsel’s acts and omissions. Counsel has not had an opportunity to explain his acts and omissions. Thus, we cannot say that Herring has established that his trial counsel’s performance fell below an objective standard of reasonableness. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003). Accordingly, we overrule his first issue.

Herring contends in his second issue that the evidence is legally insufficient to prove that he used or exhibited a knife during the course of the robbery.

We measure the sufficiency of the evidence in a bench trial against a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997); Campbell v. State, 139 S.W.3d 676, 683 (Tex.App.-Amarillo 2003, pet. ref d). Among other requisites, “[a] hypothetically correct charge has its basis in the indictment allegations.” Gollihar v. State, 46 S.W.3d 243, 255 (Tex.Crim.App.2001). Therefore, if the indictment alleges as an element of the offense that the accused “us[ed] and threatened] to use deadly force namely, a firearm,” a hypothetically correct jury charge will require the jury to so find. See Curry v. State, 30 S.W.3d 394, 405 (Tex.Crim.App.2000) (cited with approval by Gollihar, 46 S.W.3d at 254-56).

Our beginning point, then, is the indictment. Here, the indictment alleges that Herring committed the offense of robbery and that during the course of the robbery he “use[d] and exhibited] a deadly weapon, namely a knife.” However, when the State read the indictment at the commencement of trial, the prosecutor read this allegation to be that during the course of the robbery Herring “us[ed] deadly weapons, namely, a knife and a large stick.”

Any amendments to an indictment must be in writing. See Riney v. State, 28 S.W.3d 561, 564-66 (Tex.Crim.App.2000); Aguilera v. State, 75 S.W.3d 60, 63-64 (Tex.App.-San Antonio 2002, pet. refd). Therefore, the prosecutor’s misreading of the indictment did not effectively amend the indictment. Accordingly, a hypothetically correct jury charge in Herring’s case would require a jury to find that Herring used or exhibited a knife during the course of the robbery.

The State relies on the following testimony to establish that Herring used or exhibited a knife:

DIRECT EXAMINATION:
Q: Okay. Did he have a weapon with him?
A: He said he had a knife and I never seen the knife but I was pretty sure he had one.
Q: So you believed he had a knife?
A: Yes, sir.
Q: What was he going to do with that knife?
A: He said he was going to kill me if I didn’t give him my money.
Q: Did you believe he was going to kill you?
A: Yes, sir.
CROSS-EXAMINATION:
Q: But you never saw a knife?
A: No, sir.
Q: And you were not cut or stabbed with any kind of a sharp instrument, were you?
A: No, sir.

The complainant never saw a knife in Herring’s possession. He did not testify that Herring held a sharp instrument to his neck or back. Cf. Regan v. State, 7 S.W.3d 813, 819-20 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Because the complainant did not see or feel a knife, the evidence is legally insufficient to prove that Herring used or exhibited a knife during the commission of the robbery. Cf. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000) (“Had the knife been completely concealed by appellant’s clothing, additional facts would have been needed to establish that the butcher knife was used.”); McGowan v. State, 664 S.W.2d 355, 357-58 (Tex.Crim.App.1984) (evidence legally insufficient to prove robbery by threat where complainant “never saw appellant holding a knife nor did she testify that appellant threatened her with a knife”).

Because this was a bench trial, we reverse the judgment of conviction for aggravated robbery and render a judgment of conviction for the lesser-included offense of robbery. See Brown v. State, 35 S.W.3d 183, 190 (Tex.App.-Waco 2000), rev’d on other grounds, 89 S.W.3d 630 (Tex.Crim.App.2002); Watson v. State, 923 S.W.2d 829, 832-33 (Tex.App.-Austin 1996, pet. ref'd); accord Collier v. State, 999 S.W.2d 779, 784 (Tex.Crim.App.1999) (Keasler, J., concurring). We reverse that portion of the judgment assessing punishment and remand this cause to the trial court for a new punishment hearing. See Hart v. State, 89 S.W.3d 61, 66 (Tex.Crim.App.2002); Brown, 35 S.W.3d at 190; see also Tex.Code CRiM. Peoc. Ann. art. 44.29(b) (Vernon Supp.2004-2005).

Chief Justice GRAY

dissenting with the following note: “I would affirm the judgment of conviction. A separate dissenting opinion will not be issued.”

      . Specifically, Herring complains that counsel filed no pretrial motions, obtained no subpoenas, failed to object to the State’s “re-indictment,” failed to object to the State’s reading of a deadly weapon allegation (use of a “large stick”) not actually included in the indictment, elicited testimony that Herring threatened the complainant with a knife, failed to cross-examine a witness, failed to move for an instructed verdict, failed to have Herring testify in his own defense, failed to present argument during the guilt-innocence phase, failed to present punishment evidence, and made only a brief argument during the punishment phase.