text:
    Tracy HARDY, Appellant, v. 11702 MEMORIAL, LTD; British American Properties of Houston, Inc.; and Thomas F. Noons, Appellees.
    No. 01-02-00758-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2004.
    Rehearing Overruled Oct. 12, 2004.

      Russell W. Hall, Bellaire, TX, for Appellant.
    Bruce D. Mosier, Mosier & McEnrue, P.C., Houston, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

This is a landlord-tenant dispute. The tenant, appellant, Tracy Hardy, sued her landlord, appellees, 11702 Memorial, Ltd.; British American Properties, Inc.; and Thomas F. Noons, for failure to return her $20,250 residential security deposit. Landlord counterclaimed for the entire $20,250 security deposit plus $14,017 in additional damages allegedly due to tenant’s breach of the lease. After a bench trial, the court entered a take-nothing judgment against both landlord and tenant. Tenant has presented six issues in this appeal. In her first two issues, tenant contends that the evidence is factually insufficient to support the trial court’s ruling that tenant was not entitled to the return of any part of her security deposit. In her third issue, tenant challenges the trial court’s conclusion of law that she did not prove her case by a preponderance of the evidence. In her fourth issue, tenant contends she should have been awarded statutory damages because “Landlord did not meet its burden of proving good faith” under section 92.109(d) of the Texas Property Code. In her fifth issue, tenant asserts that the trial court erred in failing to find that landlord sold the property at 11702 Memorial to Noons, its agent, and that both are therefore jointly and severally liable to her for return of the security deposit. In her sixth issue, tenant contends that the trial court erred in concluding that British American, the general partner of 11702 Memorial, Ltd., was not liable to her. We address only issues four through six because they are dispositive. We reverse and remand.

Background

Tenant leased a residence from landlord, signed a lease agreement, provided a security deposit of $20,250, but never occupied the dwelling or paid the first month’s rent, and thus breached the lease. Landlord leased the residence to another tenant within a few days of appellant’s breach and recovered rental payments from the new tenant. Landlord declined to return any portion of the $20,250 security deposit to tenant and claimed additional damages of $14,017.

The trial court ruled that landlord and tenant each take nothing and made the following pertinent findings of fact:

1. On or about September 19, 2000, [tenant] and [landlord] entered into a written residential lease for the property known as 11702 Memorial Dr., in Houston, Harris County, Texas, requiring a Security Deposit of $6,500.00 (one month’s rent) and monthly rental payments of $6,500.00 each, commencing on October 1, 2000.
2. [Landlord] then determined that [tenant] had bad credit.
3. Thereafter, [landlord] and [tenant] amended the lease contract, increasing the security deposit agreement.
4. [Tenant] paid to [landlord] the sum of $20,250.00 as Security Deposit under the amended lease.
5. [Tenant’s] first month rent of $6,500.00 was due and payable under the amended lease on October 1, 2000.
6. [Landlord] requested that the $6,500.00 due and payable as the first month’s rent be paid by [tenant] to Greenwood King Realty.
7. Greenwood King Realty was entitled to a commission of $6,500.00 (one month’s rent under the lease contract) from [landlord] for its effort in leasing the property to [tenant].
8. On September 19, 2000, [tenant] wrote and delivered a check to Greenwood King Realty in the amount of $6,500.00, as requested by [landlord].
9. [Tenant’s] $6,500.00 check (see Finding No. 8 above) was returned by the bank to Greenwood King Realty unpaid because [tenant] had previously closed the account on which it was written.
10. On September 29, 2000, [tenant] wrote to [landlord] stating, “Thank you for allowing me out of the lease at 11702 Memorial Drive.... ”
11. On October 1, 2000, [landlord] wrote to [tenant] denying that any such agreement had been made.
12. [Landlord] did not agree to allow [tenant] out of the lease.
13. [Landlord] then leased the property to a third party.
14. On October 9, 2000, [tenant’s] counsel wrote to [landlord] requesting the return of the Security Deposit and stating that the letter should be considered as [tenant’s] surrender of possession of the property to [landlord].
15. On October 9, 2000, [tenant] owed [landlord] rent.
16. There is no controversy concerning the amount of rent owed.
17. On November 8, 2000, [landlord] wrote to [tenant’s] attorney, describing and itemizing deductions from the Security Deposit and stating that after such deductions, [tenant] owed [landlord] an additional $14,017.00.

The court also made the following pertinent conclusions of law:

1. [Tenant] did not prove her case by a preponderance of the evidence.
2. [Tenant] was in default of the terms of the lease agreement between her and [landlord] when her request for return of the Security Deposit was made.
3. [Landlord] was not required to give [tenant] a description and itemization of deductions from the Security Deposit.
4 [Landlord’s] description and itemization of deductions from the Security Deposit was timely made.
5. [Landlord] is not liable to [tenant] for the refund of any part of the Security Deposit.
6. [Landlord] is not hable to [tenant] for damages.
7. [Landlord] is not liable to [tenant] for attorney fees.

Landlord’s Bad Faith

In her fourth issue, tenant contends landlord is not entitled to retain any portion of her security deposit because landlord acted in bad faith in failing to return it. Under the Property Code, no landlord has the right to retain any deposit it has refused, in bad faith, to return.

Section 92.104 of the Property Code governs the return of security deposits. It provides that, before returning a security deposit, a landlord “may deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease.” Tex. PROp.Code Ann. § 92.104(a) (Vernon 1995). If the landlord retains all or part of the deposit, it must give the tenant any balance due, together with a written description and itemized list of all deductions. Id. § 92.104(c).

Section 92.109(a) of the Property Code governs a landlord’s bad faith. It provides that, in a suit to recover a security deposit, a landlord who retains a deposit in bad faith is liable to the tenant for $100, plus three times the portion of the deposit wrongfully withheld, and the tenant’s reasonable attorneys’ fees. Tex. Prop.Code Ann. § 92.109(a) (Vernon 1995). An additional result of a landlord’s retention of a security deposit in bad faith is the forfeiture of the right to retain any portion of the security deposit. Id. § 92.109(b)(1). Moreover, a landlord who fails either to return a security deposit or to provide a written description and itemization of deductions on or before the 30th day after the tenant surrenders possession of the property is presumed to have acted in bad faith. Id. § 92.109(d).

A tenant may establish a prima facie case of bad faith by showing that the landlord failed to refund the deposit within 30 days or that it failed to provide the itemized list of deductions within 30 days. Wilson v. O’Connor, 555 S.W.2d 776, 780-81 (Tex.Civ.App.-Dallas 1977, writ dism’d). Bad faith implies an intention to deprive the tenant of a lawfully due refund. Id. at 780. To defeat the presumption, the landlord must prove his good faith, i.e., “honesty in fact in the conduct or transaction concerned.” Id. at 780-81. Absent rebutting evidence, the presumption that the landlord acted in bad faith by failing to return the deposit or provide a written description and itemization of deductions within 30 days after surrender compels a finding of bad faith. Id. at 780.

Tenant pleaded that landlord acted in bad faith by retaining her entire security deposit and by failing to send her an itemized list of deductions for which she was legally hable within 30 days of her surrender of the dwelling. On appeal, she contends the trial court’s ruling that landlord was not liable to her is against the overwhelming weight of the evidence and is unjust.

Tenant’s Prima Facie Proof of Bad Faith

Tenant’s lease was to commence on October 2, 2000. The uncontradicted evidence establishes that she repudiated the lease on September 29, 2000 and never occupied the premises. Landlord acknowledged its duty to mitigate damages and found a new tenant, whose lease commenced on October 3, 2000. On October 9, 2000, tenant’s attorney gave landlord formal notice of “surrender” of the property and a written statement of tenant’s forwarding address for the purpose of refunding the security deposit, which triggered Landlord’s obligation to return the deposit or give her a written description of the damages and charges for which she was liable within 30 days, i.e., by November 8, 2000. See Tex. Prop.Code Ann. §§ 92.103, 92.107 (Vernon 1995).

Neither tenant or landlord appeared or testified at trial. The trial consisted of documentary evidence, tenant’s attorney’s testimony, and landlord’s deposition testimony. According to tenant’s attorney’s testimony, landlord kept the deposit and sent tenant a letter dated November 8, 2000, listing “deductions and offsets,” by facsimile on November 26, 2000 — six days after tenant sent landlord a draft petition in anticipation of this suit and well outside the 30 day limit for landlord’s compliance with section 92.103. Landlord’s November 26, 2000 facsimile listed deductions amounting to $34,267, or $14,017 more than tenant’s $20,250 deposit, and included a demand for the difference. Tenant’s attorney also testified that when he spoke to landlord on November 16, landlord acknowledged that, as of that time, he had not yet responded to tenant’s request for the return of her security deposit. Landlord’s deposition testimony only stated that the letter with the “deductions and offsets” was created on November 8, 2000, but did not reflect when the letter was actually sent. The uncontradicted evidence that landlord neither returned the deposit nor sent tenant an itemized list of deductions within 30 days of surrender establishes the presumption of landlord’s bad faith under section 92.109(d) of the Property Code. The burden, therefore, shifted to landlord to prove its good faith in withholding the deposit by rebutting the presumption of bad faith. See Wilson, 555 S.W.2d at 780-81.

Landlord’s Burden of Proof of Good Faith

Under the plain language of section 92.104 of the Property Code, a landlord is entitled to deduct from a tenant’s security deposit only those “damages and charges for which the tenant is legally liable.” Tex. PROP.Code Ann. § 92.104(a) (emphasis added). Landlord’s November 26, 2000 facsimile itemized the following deductions and offsets from tenant’s security deposit:

(1) First Months Rent $ 6,500
(2) Commission Due $ 6,500
(3) Lost Rents (3 days @ 213.5) $ 641 10/2/00 to 10/5/00
(4) Lost Rents (26 days @ 213.5) $ 5,551 1/6/02 to 1/31/02
(5) Lost Rents (one month) $ 6,500 2/1/02 to 2/28/02
(6) NSF Fee $ 25
(7) Utilities $ 1,100
(8) Make Ready $ 950
(9) Cost of Re-letting $ 6,500
TOTAL $34,267

The question under section 92.109(a) is whether landlord proved that each of the charges was made in good faith. See Wilson, 555 S.W.2d at 780.

In item (1), landlord deducted $6,500 for the first month’s rent and in item (3), landlord deducted $641 dollars for lost rent for the 3 days between October 2, 2000 and October 5, 2000. These are duplicate charges for the same time period. Although landlord was lawfully entitled to one day’s lost rent at $213.50, due to the time difference between October 2, 2000, when tenant’s lease was set to begin, and October 3, 2000, when the replacement tenant’s lease began, landlord did not limit its deductions to one day’s lost rent, but rather attempted to recover by billing for additional days and by billing twice for the same time period. No evidence supports deductions for $6,500 for the first month’s rent and deductions at $641 for lost three days rent.

In item (2), Landlord demanded a $6,500 commission purportedly due from tenant for Greenwood King’s efforts in securing tenant as a lessee. The lease, however, never mentioned that tenant would pay any commission to Greenwood King or to any other entity for its having secured her as a lessee. The lease states that it “contains the entire agreement between landlord and tenant and may not be changed except by written agreement.” The record shows that landlord agreed to pay Greenwood King for finding a tenant to lease the property, but the lease agreement between tenant and landlord never incorporated that agreement. Greenwood King is not a party to this litigation. Landlord may not deduct from the security deposit funds that it is not lawfully entitled to keep under the lease. See Tex. PROP.Code Ann. § 92.104(a). No evidence supports landlord’s entitlement to deduct commission fees from tenant’s deposit.

In item (4), landlord claimed a deduction of $5,551 for future rent for 26 days in January 2002, and a deduction, in item (5), of $6,500 for future rent for the month of February 2002. Paragraph 24 of the lease permits landlord, upon tenant’s breach, to accelerate all rents payable during the remainder of the lease. The record contains the replacement tenant’s lease, which states a termination date of January 5, 2002 for the lease of the property, but also contains a provision to automatically renew on a month-to-month basis. Thus, no evidence in the record establishes landlord’s loss of rent between the time the replacement tenant’s initial lease period was scheduled to expire and the termination date of tenant’s lease on February 28, 2002. Therefore, landlord was not legally entitled to deduct items (4) and (5). from tenant’s deposit. See Stamp-Ad, Inc. v. Barton Raben, Inc., 915 S.W.2d 932, 936 (Tex.App.-Houston [1st Dist.] 1996, no writ) (explaining that in breach of contract action, measure of damages is just compensation for loss actually sustained). No evidence establishes that landlord incurred any loss of rent from tenant’s breach between January 5, 2000 and February 28, 2002.

Although the lease expressly states that tenant will pay for utilities directly and landlord is not responsible for utilities, and although tenant never took possession of the property, landlord deducted $1,100 for utilities in item (7). Additionally, even though the lease required tenant to accept the premises “AS IS” and no other mention was made of any fees to prepare the property for tenant’s arrival, landlord deducted in item (8) $950 for a “make ready” fee. No evidence establishes that landlord incurred any debts for utilities and make ready fees or that tenant was legally obligated under the lease to pay for the deductions.

Although item (9) deducted $6,500 for the cost of “re-letting,” no evidence in the record established that the cost was for actual expenses to secure a replacement tenant, or costs for the time landlord took to secure the replacement tenant, or that either charge was reasonable. Landlord was only entitled to keep reasonable charges from the security deposit for actual “costs of re-letting, if Tenant is in default” according to the lease. The Property Code also confínes deductions to actual expenses to secure a replacement tenant plus a reasonable amount for the landlord’s time in securing the replacement when a tenant fails to occupy the dwelling on or before the commencement date of the lease. Tex. Prop.Code Ann. § 92.1031(a), (b)(2) (Vernon Supp.2004). No evidence in the record addressed landlord’s actual expenses in re-letting or whether any such expenses were reasonable.

Item (6) is a deduction for $25 for an NSF (non-sufficient funds) fee for tenant’s returned check for her first month’s rent. Landlord’s deposition testimony established that tenant “bounced a check on me” and, according to the lease, tenant agreed to pay landlord $25 for each check returned by the institution on which it was drawn. The record, however, establishes that tenant wrote the check to Greenwood King, rather than to landlord. Even though the record reflects that tenant wrote the first month’s rent check to Greenwood King at landlord’s direction, there is no evidence that landlord incurred any fees for the returned check tenant wrote to Greenwood King.

We conclude that there is no more than a scintilla of evidence that landlord was entitled to any of the deductions taken from the security deposit. Landlord’s deductions from the security deposit were attempts to recover for items tenant was not legally liable for under the lease or the Property Code, and the deductions were not supported by evidence. To the extent the trial judge’s findings are to the contrary, they are against the overwhelming weight of the evidence. There is no more than a scintilla of evidence that was provided by landlord to establish his good faith as rebuttal of the presumption of bad faith to which tenant was entitled under the Property Code. Thus, tenant established as a matter of law that landlord acted in bad faith by failing to return her security deposit and by failing to give her an itemization of deductions within 30 days of her surrender of the property.

Relying on section 92.104(c) of the Property Code, landlord contends that it was not required to comply with section 92.104(a) because tenant owed rent when she surrendered possession of the premises and there was no controversy concerning the amount of rent owed. See Tex. Prop.Code Ann. §§ 92.104(a), (c) (Vernon 1995). Although there is no dispute that tenant owed rent when she surrendered possession of the premises, there is plainly a controversy concerning the amount of rent owed, as discussed above. The trial court’s finding of fact that there was no controversy concerning the amount of rent owed is contrary to the overwhelming weight of the evidence and is clearly wrong and unjust. Additionally, the trial court’s conclusion of law that landlord was not required to give tenant a description and itemization of deductions from the security deposit is also erroneous for the same reason. Under the plain language of section 92.104, landlord’s duty to return tenant’s deposit was not excused.

Finally, landlord argues that tenant breached various “covenants,” including covenants to pay the first month’s rent, to give 30 days’ written notice of surrender, to return keys and access devices, and to pay late and insufficient fund fees. To the extent these alleged covenants are not dealt with above, they are preempted by the statutory rights and duties of a landlord and tenant toward each other under the Property Code as expressly stated in the Code, which provides for the preemption of all rights of landlords and tenants under contract, statutory law, and common law that are inconsistent with the purposes of subchapter 92 of the Property Code. See Tex. Prop.Code Ann. § 92.061 (Vernon 1995). Section 92.006 of the Property Code expressly provides, “A landlord’s duty or a tenant’s remedy concerning security deposits, as provided by Subchapter C [section 92.101 et seq.], D, E, or G, respectively, may not be waived.” Tex. Prop.Code Ann. § 92.006(a) (Vernon 1995).

We sustain tenant’s fourth issue.

Joint and Several Liability

In her fifth issue, tenant contends the trial court erred in failing to find that landlord sold the property at 11702 Memorial to Noons, its agent, and that both are therefore jointly and severally liable to her for return of the security deposit. In her sixth issue, tenant contends the trial court erred in concluding that British American, the general partner of 11702 Memorial, Ltd., was not liable to her. We consider both issues together.

Section 92.105 of the Property Code provides that if the owner sells its interest in the premises, the new owner is liable for the return of security deposits from the date it acquires title to the premises, and the person who no longer owns an interest in the premises remains liable for a security deposit it received while it was the owner up to the time the new owner delivers to the tenant a signed statement specifying the dollar amount of the deposit and acknowledging that it has received the deposit and is responsible for it. Tex. Prop.Code Ann. § 92.105 (Vernon 1995).

The uncontradicted evidence establishes that on December 1, 2000, Noons, in his capacity as president of British American Properties of Houston, Texas, Inc., the general partner of landlord (11702 Memorial, Ltd.), sold the premises to himself. The record contains no evidence that Noons sent tenant a signed statement stating that he had received and was responsible for her security deposit. Therefore, both Noons and landlord are liable to tenant for any judgment entered in her favor on the security deposit.

The undisputed evidence also establishes that British American was the general partner of landlord. General partners are jointly and severally liable for the obligations of a limited partnership. See Tex.Rev.Civ. Stat. Ann. art. 6132a-1 § 4.03(b) (Vernon Supp.2004); Tex.Rev. Civ. Stat. Ann. art. 6132b § 3.04 (Vernon Supp.2004). Therefore, British American is jointly and severally liable with landlord for any obligations of landlord.

We sustain tenant’s fifth and sixth issues.

Because the foregoing issues are dispos-itive of this appeal, we decline to address tenant’s first, second, and third issues.

Conclusion

We hold that the trial court’s implied finding that landlord proved its good faith in retaining tenant’s security deposit is contrary to the overwhelming weight of the evidence and that tenant established as a matter of law landlord’s bad faith in retaining her entire $20,250 security deposit and demanding $14,107 in additional damages. Therefore, tenant is entitled to recover jointly and severally from Defendants 11207 Memorial, Ltd.; British American Properties of Houston, Inc.; and Thomas P. Noons statutory damages under sections 92.109(a) and (b) of the Property Code in the amount of (1) $100, plus (2) her entire security deposit of $20,250 multiplied three times for a. total of $60,750, plus (3) her reasonable attorney’s fees.

We reverse and remand to the trial court with instructions that the court hold a hearing to determine the amount of tenant’s reasonable attorney’s fees and that it, thereafter, enter judgment in accordance with this opinion.

      . Landlord, 11702 Memorial, Ltd. is a Texas Limited Partnership with British American Properties of Houston, Inc., as its general partner. Thomas Noons is the president of British American.

      .The trial court made no findings of fact regarding tenant’s claim that landlord acted in bad faith. To the extent that a trial court does not issue findings of fact and conclusions of law to support its ruling, all facts necessary to support the judgment and supported by the evidence are implied. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex.1987). However, when, as here, the appellate record includes the reporter’s and clerk’s records, implied findings are not conclusive and may be challenged for legal and factual sufficiency. BMC Software Belg., 83 S.W.3d at 795. Implied findings of fact cannot be inferred when the evidence conclusively establishes the issue to be determined. Otis Elevator Co., 734 S.W.2d at 666. We will sustain a factual sufficiency challenge if, after viewing all the evidence, the evidence is so weak or the judgment so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

      . Tenant wrote to landlord stating, "Thank you for allowing me out of the lease ... per our conversation today 9-29-00 I[sic] putting it into writing to cancel our agreement. Please give a check to George my driver for the amount of $20,250.... ”

      . On October 9, tenant's attorney wrote to landlord stating, "Please accept this letter as notice of surrender....” See Tex Prop.Code Ann. § 92.107.

      . The trial court made no findings of fact concerning whether the deductions taken by landlord for Greenwood King were made in good or bad faith, but it did make a finding of fact number six that landlord requested that the $6,500 due and payable as the first month's rent be paid by tenant to Greenwood King Realty. Nonetheless, the lease agreement itself never referenced any duty by tenant to pay Greenwood King for any commission, and thus, there is no evidence in the record to support the trial court’s finding.

      . Even if we were to assume that the replacement tenant's lease actually terminated on January 5, 2002, rather than continuing on a month-to-month basis, landlord would have had a continuing duty to attempt to mitigate his losses. Paragraph 24 obligates landlord to mitigate its damages, as does section 92.006 of the Property Code. Thus, landlord would have had to show that after the replacement tenant surrendered the property on January 5, if it did, and that it attempted but failed to secure a new tenant to resume the lease on January 5, 2000 until February 28, 2002. No evidence in the record addresses any of these issues.

      . We review a trial court’s conclusions of law de novo as legal questions. See BMC Software Belg., 83 S.W.3d at 794; Connelly v. Paul, 731 S.W.2d 657, 661 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.). Although an appellant may not challenge a trial court’s conclusions of law for factual sufficiency, we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belg., 83 S.W.3d at 794.


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    BRAZORIA COUNTY CHILDREN’S PROTECTIVE SERVICES, Appellant, v. Kenneth FREDERICK, Appellee.
    No. 01-02-01232-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2004.
    Jeri Yenne, Criminal District Attorney, Leigh Hughes Lehmann, Mary F. Cheline, Assistant District Attorneys, Angleton, TX, for Appellant.
    James A. Robertson, Pearland, TX, Kim Fallwell Richardson, Freeport, TX, Jimmy Phillips, Jr., Angleton, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

This is an appeal from a suit affecting the parent-child relationship (SAPCR), in which appellant, Brazoria County Children’s Protective Services (“CPS”), the petitioner in the trial court, challenges a directed verdict that denied CPS’s request to terminate the parent-child relationship between appellee, Kenneth Frederick, and his minor child, T.F. CPS also challenges the exclusion of evidence of portions of Frederick’s past criminal history. We reverse and remand.

Facts and Procedural Background

Frederick has been incarcerated since October 1997. Frederick never made bail, was transferred to TDC-Dalhart in 1999, and is not eligible for parole until 2004. He has been imprisoned throughout the lifetime of his son, T.F., who was born in December 1997. The child’s mother, Tami Wiggins, and Frederick were never married, but Frederick knew that he was probably T.F.’s father, and a paternity test established that he is the father. Frederick has been married to another woman since before T.F.’s birth. Frederick has fathered only one child by his wife, but has eight children by three other women. Frederick has not paid child support for any of the children.

Tami brought infant T.F. to see Frederick in prison twice a week until he was transferred to a more remote facility. Frederick sent letters to Tami asking about T.F. and has sent him birthday cards. Tami died in December 2001, when T.F. was four years old, and Tami’s mother, Roberta, assumed care of T.F. On two occasions, however, neighbors had to bring T.F. back to Roberta after T.F. had wandered away. CPS was eventually summoned after an incident in which T.F. had again wandered away after Roberta blacked out due to a health condition. When T.F. was found, he was very thin, his teeth were rotted, black, and, in the front of his mouth, broken, jagged, and sharp. CPS took T.F. into protective custody and, from there, transferred him to a foster home.

T.F. has many health problems. He was born eight weeks prematurely and was without a throat at birth. He still had esophageal problems at the time of trial and had an eating disorder that resulted in his vomiting whatever he ate, although that condition has improved, and he still needs surgery for a testicle that has not yet descended. He is very happy in the home of his foster parents.

CPS petitioned to terminate Frederick’s parental rights involuntarily pursuant to section 161.001(2) of the Family Code and to multiple provisions of section 161.001(1). Roberta filed a separate petition to adopt T.F., and the cases were consolidated for a jury trial. During trial, T.F.’s foster parents intervened to seek joint managing conservatorship of T.F. if Frederick’s rights were terminated and if Roberta succeeded in adopting T.F. CPS succeeded in presenting some evidence of Frederick’s criminal history, but was precluded from introducing Frederick’s complete criminal history.

At the close of CPS’s case, Frederick moved for a directed verdict on the basis of no evidence or insufficient evidence to support terminating his parental rights. In response to Frederick’s motion, CPS argued that legally sufficient evidence had been presented to the jury to support terminating Frederick’s rights pursuant to subsections 161.001(D), (E), (F), (H), and (Q) of the Family Code. In granting Frederick’s motion and directing a verdict in his favor, the trial court stated, “I don’t believe that the State, given the evidence before this Court, is empowered to take away the parental rights of the natural father; and therefore I am compelled to grant your motion for instructed verdict.”

Because the trial court rendered the directed verdict in favor of Frederick, no question was submitted to the jury concerning his parental rights. The jury returned a verdict in favor of granting Roberta and the foster mother, Rogers, joint managing conservatorship. In accordance with the directed verdict in Frederick’s favor, the trial court awarded him posses-sory conservatorship to commence on his discharge from prison.

Directed Verdict Refusing to Terminate Frederick’s Rights

In its first issue, CPS contends that the trial court erred by granting Frederick’s motion for directed verdict. Before addressing this issue, we respond to a challenge by Frederick to the standing of CPS to bring this appeal. We reject Frederick’s challenge under well-settled law. CPS’s standing in the trial court derived from its joint managing conservatorship of T.F., which CPS shared with the foster parent. See Tex. Fam.Code Ann. § 161.003(a)(8) (Vernon 2002) (authorizing termination of parental rights on petition of CPS “if the department has been the temporary or sole managing conservator of the child of the parent for at least six months preceding the date of the hearing on the termination.... ”). As a party of record in the trial court, CPS had standing to appeal. Gunn v. Cavanaugh, 391 S.W.2d 723, 724-25 (Tex.1965); Subsequent Injury Fund v. Service Lloyds Ins. Co., 961 S.W.2d 673, 677 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).

A directed verdict in favor of defendant is appropriate when the plaintiff does not present evidence to raise a fact issue that is essential to the plaintiffs right of recovery. Prudential Ins. Co. v. Fin. Review Servs., 29 S.W.3d 74, 77 (Tex.2000). In reviewing a directed verdict, we consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, here CPS, disregard all contrary evidence and inferences, and give CPS, as the losing party, the benefit of all reasonable inferences that follow from the evidence. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994).

Although CPS relied on several subsections of section 161.001 in seeking involuntary termination of Frederick’s parental rights, CPS focuses on appeal on section 161.001(1)(Q) of the Family Code, which provides as follows:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(Q) knowingly engaged in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition.

Tex. Fam.Code Ann. § 161.001(1)(Q) (Vernon 2002).

This Court construed section 161.001(1)(Q) in the case In re B.M.R., 84 S.W.3d 814, 818 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

A. Knowingly Engaged in Criminal Conduct-Ability to Care for T.F.

Section 161.001(1)(Q) requires a showing of the parent’s inability to care for the child. B.M.R., 84 S.W.3d at 818. Incarceration alone does not show inability to care for the child. Id. Although the term “care” has not been defined in either the statute or in subsequent case law, this Court concluded that the factors to be considered when deciding inability to care include the availability of financial and emotional support from the incarcerated parent. See id.

As in B.M.R., in which the father acknowledged his lack of financial means to support his child while in prison, Frederick also acknowledged that he could do nothing for T.F. while in prison. See id. In affirming termination of parental rights in B.M.R., this Court noted the father’s history of failing to pay child support, not only for B.M.R., but for several of his other children. Id. Although every one of Frederick’s children, except T.F., is now beyond the need for child support, it is undisputed that Frederick never paid child support for any of his children, a factor that raises triable issues of fact concerning Frederick’s ability to provide financial support for T.F.

In considering the father’s ability to provide emotional support in B.M.R., this Court noted that the father had seen his child only a few times, had spent a limited amount of time with the child, and had not sent any gifts or cards for birthdays or Christmases. 84 S.W.3d at 819. Unlike B.M.R, Frederick sent birthday cards. See id. Otherwise, the circumstances are similar to B.M.R. See id. In this case, it is undisputed that Frederick has not seen T.F. since 1999 and he did not send gifts to his child from prison. Although Frederick also testified that he wanted to be a father to T.F. and to provide him a home, clothing, food, and medication, the remoteness from his child, as demonstrated by the record, raises triable issues of fact concerning his ability to provide emotional support for T.F.

Section 161.001(1)(Q) also requires a showing of the parent’s inability to care for the child for not less than two years from the date of filing the petition. Tex. Fam.Code Ann. § 161.001(1)(Q)(ii). The supreme court has held that this two-year requirement is applied prospectively from the filing of the petition. In re A.V. and J.V., 113 S.W.3d 355, 360 (Tex.2003). In support of its holding, the supreme court explained,

In reading subsection Q to apply prospectively, the subsection fills a gap left by other grounds for termination. A prospective reading of subsection Q allows the State to act in anticipation of a parent’s abandonment of the child and not just in response to it. Thus, if the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected.

Id. In this case, Frederick was initially incarcerated in 1997 and was transferred to TDC-Dalhart in 1999. CPS filed the petition to include subsection Q as a ground for termination on May 10, 2001. Frederick will not be eligible for parole until 2004. Thus, because Frederick’s incarceration will extend for not less than two years from the date of filing the petition, CPS could properly seek termination of Frederick’s parental rights under subsection 161.001(1)(Q). See In re A.V. and J.V., 113 S.W.3d at 360.

After considering the evidence in the light most favorable to CPS, we conclude that the evidence raised triable issues of fact for the jury’s determination concerning Frederick’s ability to care for T.F. Accordingly, to the extent that the trial court premised its ruling on section 161.001(1), the directed verdict was improper.

B. Best Interests ofT.F.

To avoid the directed verdict, CPS also had to present evidence that termination of Frederick’s parental rights was in the best interest of T.F. See Tex. Fam.Code Ann. § 161.001(2) (Vernon 2002). In B.M.R., we applied the following, well-settled Holley factors in determining best interest under section 161.001(2):

1. The child’s desires;
2. The child’s physical and emotional needs, now and in the future;
3. The emotional and physical danger to the child, now and in the future;
4. The parental ability of the individuals seeking custody;
5. The programs available to assist these individuals in promoting the child’s best interest;
6. The plans for the child by the individual or agency seeking custody;
7. The stability of the home or proposed placement;
8. The parent’s act or omissions that may indicate the existing parent-child relationship is not the proper one; and
9. Any excuse for the parent’s acts or omissions.

B.M.R., 84 S.W.3d at 819 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976)).

1. The desires of the child

Just as in B.M.R., in which the “child probably has little, if any, conscious knowledge of [his birth father],” there is no evidence that T.F. knows who his father is or asks about his father. T.F. seems happy with his foster parents. They go horseback riding, take trail rides, visit museums and the library, and read stories together.

2. The child’s physical and emotional needs, now and in the future

Frederick stated that he wants to play a part in T.F.’s life. He has taken some classes in prison to obtain his GED and intends to work as a bricklayer when he is released. He did not know, however, until trial, about T.F.’s many digestive problems. The record reflects that, in granting Frederick’s motion for directed verdict, the trial court stated, “I think this child is exactly in the same position as Ashley Caballero.” See In re Caballero, 53 S.W.3d 391 (Tex.App.-Amarillo 2001, pet. denied). In upholding termination of the parent’s rights, the Caballero court wrote, “Because incarceration is inherently inconsistent with providing personal care for a child, the legislature’s inclusion of the phrase ‘and inability to care for the child’ would be meaningless unless care encompassed arranging for care to be provided by another.” 53 S.W.3d at 396.

The record here shows that Roberta, T.F.’s maternal grandmother, is willing to care for T.F. until Frederick is out of prison, but the record also establishes that Roberta is in failing health and that T.F. was removed from her care for that reason. Similarly, although Frederick’s mother came forward at the time of trial to state her willingness to care for T.F., it is undisputed that she has not previously had any contact with T.F. There was also some evidence that one of Frederick’s daughters might assume care of T.F., but the daughter did not respond to CPS’s inquiries.

3.The emotional and physical danger to the child, now and in the future

In B.M.R., we expressed concerns about the father’s involvement with drug trafficking and concluded that this history raised legitimate fears for the future safety of the child. 84 S.W.3d at 820. This case presents the same concerns. In October 1997, Frederick was arrested for six different counts of delivery with intent to sell a controlled substance and possession of a controlled substance. He was convicted in 1999 and is currently serving his 11-year sentence.

J. The parental ability of the individuals seeking custody

In B.M.R., we also took into account the father’s history of parenting towards B.M.R. and his other children, which included long periods without visitation and without providing for his children financially. Id. As addressed above, Frederick has never paid child support for any of his eight other children.

5. The programs available to assist these individuals in promoting the child’s best interest

In considering this factor in B.M.R., we noted that the father had enrolled in college courses, but had not registered for classes to improve his parenting skills while in prison. Id. Although the record here does not indicate whether Frederick has registered for parenting classes, he has only signed up for training in landscaping and is on the waiting list.

After considering the evidence in the light most favorable to CPS and applying the Holley factors to that evidence, we conclude that the evidence raises triable issues for the jury’s determination concerning whether terminating Frederick’s parental rights is in the best interest of T.F. Accordingly, the trial court erred by directing a verdict in favor of Frederick based on section 161.001(2).

We sustain CPS’s first issue.

Conclusion

We reverse the judgment of the trial court and remand for a new trial.

      . See Tex. Fam.Code Ann. § 101.032(a) (Vernon 2002) (defining SAPCR to include a suit in which termination of the parent-child relationship is requested).

      . Tex. Fam.Code Ann. § 161.001(1)-(2) (Vernon 2002).

      . In its second issue, CPS contends the trial court abused its discretion by not permitting testimony regarding Frederick’s complete criminal history, and by improperly instructing the jury that evidence concerning admitted felony convictions within the previous 10 years could only be considered for the limited purpose of impeachment. CPS contends on appeal that Frederick’s complete criminal history is relevant to establishing involuntary termination under section 161.001 of the Family Code. CPS further emphasizes that, because a parent’s voluntary, deliberate, and conscious course of conduct qualifies as conduct that endangers the emotional well-being of a child, a person’s extensive criminal history is especially relevant when his crimes increase in severity, as alleged here. See Texas, Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex.1987). We decline to address the merits concerning whether the trial court erred by excluding portions of Frederick's criminal history because the issue is not necessary to final disposition of the appeal based upon our ruling in issue one. See Tex. R.App. P. 47.1.


author: TERRY JENNINGS, Justice.

text:
    Douglas CAESAR, Appellant, v. Thomas BOHACEK, Appellee.
    No. 01-03-00643-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2004.

      Harold L. Sosebee Jr., Kandi A. Mc-Adams, David Black & Associates, Houston, TX, for Appellant.
    Christopher C. Miller, Ronald Martin Weber, Davis and Davis, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION

TERRY JENNINGS, Justice.

Appellant, Douglas Caesar (Caesar), challenges the trial court’s judgment entered after a jury verdict awarding $4,000 in damages to appellee, Thomas Bohacek (Bohacek), on his claim for negligence. In two issues, Caesar contends that the trial court erred in (1) awarding attorney’s fees and expenses to Bohacek pursuant to section 417.003 of the Texas Labor Code, and (2) signing a judgment in favor of Bohacek. We affirm in part and reverse and render in part.

Facts

On June 11, 1999, Bohacek, who was acting within the course and scope of his employment, was driving a car eastbound on the access road of Highway 290 in Houston. When Bohacek stopped at a traffic light, Caesar drove his car into the back of Bohacek’s car. As a result, Boha-cek’s car was damaged and he sustained personal injuries. Bohacek subsequently filed a workers’ compensation claim with Reliance National Indemnity Company (Reliance). Reliance accepted Bohacek’s claim and paid him a total of $14,747 in worker’s compensation benefits.

On June 7, 2001, Bohacek filed this lawsuit against Caesar. In August 2001, Reb-anee intervened in the suit and asserted its statutory subrogation right to be reimbursed for the benefits it had paid to Bo-hacek from any recovery obtained from Caesar.

On August 27, 2001, Reliance settled with Caesar and his insurer, State Farm Mutual Automobile Insurance Company (State Farm). Under the terms of the settlement, State Farm paid Reliance $5,500 on Caesar’s behalf, and, in consideration thereof, Reliance partially assigned its statutory subrogation lien to Caesar and to State Farm. Reliance subsequently non-suited its claims against Caesar, and the case proceeded to trial.

The jury found Caesar negligent, and it awarded Bohacek $4,000 in damages. In its final judgment, the trial court awarded Bohacek the amount of damages found by the jury, plus pre- and post-judgment interest, “subject to” the lien assigned to Caesar and State Farm. Thus, Bohacek’s net recovery of damages was zero. Nevertheless, the trial court also awarded Boha-cek his reasonable attorney’s fees of $1,333.33 and expenses of $3,211.21 “out of the subrogation recovery, if any, of [Caesar] and [State Farm] as holders of [Reliance’s] subrogation interest pursuant to Tex. Lab.Code § 417.003.”

Attorney’s Fees and Litigation Expenses

In his first issue, Caesar argues that the trial court erred in awarding Bo-hacek his attorney’s fees and expenses because “[t]here is no provision in [s]ection 417.003 or any other statute that allows a trial court to award attorney’s fees or litigation expenses against a third-party tort-feasor in a negligence case.”

We review a trial court’s award of attorney’s fees for an abuse of discretion. Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 116 (Tex.App.-Houston [1st Dist.] 1992, writ denied). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner or when it acts without reference to any guiding rules or principles. Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 626 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

In Texas, attorney’s fees may not be recovered from an opposing party unless such recovery is provided for by statute or by contract between the parties. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992). The authorization of attorney’s fees in civil cases may not be inferred; rather, it must be provided for by the express terms of the statute in question. First City Bank-Farmers Branch, Tex. v. Guex, 677 S.W.2d 25, 30 (Tex.1984).

Here, the trial court awarded Bohacek his attorney’s fees and expenses “pursuant” to section 417.003 of the Labor Code. Although the trial court did not cite to a specific subsection of 417.003, subsection (a) is the only subsection that allows a claimant to recover both attorney’s fees and expenses. See Tex. Lab.Code Ann. § 417.003(a) (Vernon 1996). Section 417.003(a) provides as follows:

(a) An insurance carrier whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant in the amount agreed on between the attorney and the insurance carrier. In the absence of an agreement, the court shall award to the attorney payable out of the insurance carrier’s recovery:
(1) a reasonable fee for recovery of the insurance carrier’s interest that may not exceed one-third of the insurance earner’s recovery; and
(2) a proportionate share of expenses.

Id. By enacting section 417.003, the legislature intended to compensate claimants who perform work for the benefit of a subrogated insurance carrier and to prohibit the worker’s compensation carrier from obtaining a “free ride” from the efforts of the claimant’s attorney. See Prewitt and Sampson v. City of Dallas, 713 S.W.2d 720, 723 (Tex.App.-Dallas 1986, writ ref’d n.r.e.).

Caesar asserts that, because he was a third-party tortfeasor and not an insurance carrier, the trial court could not order him to pay Bohacek’s attorney’s fees or litigation expenses under section 417.003(a).

An “insurance carrier” is defined as: (a) an insurance company, (b) a certified self-insurer for workers’ compensation insurance, or (c) a governmental entity that self-insures, either individually or collectively. Tex. Lab.Code Ann. § 401.011(27) (Vernon Supp.2004). An “insurance company” is defined as “a person authorized and admitted by the Texas Department of Insurance to do insurance business in this state under a certificate of authority that includes authorization to write workers’ compensation insurance.” Id. § 401.011(28) (Vernon Supp.2004). Caesar was neither an insurance company, nor a certified self-insurer, nor a governmental entity; he was a third-party tortfeasor. Accordingly, because section 417.003(a) only provides for a claimant to recover attorney’s fees and expenses from an insurance carrier, Caesar was not statutorily obligated to pay Bohacek’s attorney’s fees and expenses.

Moreover, Reliance, the only party to the litigation that met the Labor Code’s definition of insurance carrier, was “actively represented” by its own attorney, C. Marcy Unkauf (Unkauf), in this case. Unkauf filed Reliance’s petition in intervention, its designation of expert witnesses, and its affidavit and accompanying business records establishing the amount of workers’ compensation benefits that it had paid to Bohacek. Additionally, Unkauf negotiated the settlement with Caesar and State Farm and filed a copy of the settlement agreement with the trial court. Reb-anee did not obtain a “free ride” from Bohacek and his attorneys, and Bohacek would not have been entitled to recover his attorney’s fees and expenses from Reliance under section 417.003(a).

Accordingly, we hold that the trial court erred in ordering Caesar to pay Bohacek his attorney’s fees and expenses.

We sustain Caesar’s first issue.

Final Judgment

In his second issue, Caesar argues that the trial court erred in signing a final judgment in favor of Bohacek because, “when the subrogation lien [was] properly applied to the damages awarded [by the jury], Bohacek recovered] nothing from Caesar” and “Caesar was the prevailing party.” Moreover, Caesar asserts that, because he was the prevailing party, he was entitled to recover his court costs from Bohacek.

Texas Rule of Civil Procedure 131 provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except when otherwise provided.” Tex.R. Civ. P. 131. A determination of whether a party is the prevailing or successful party must be based upon success on the merits, and not on whether damages were awarded. Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 638 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

Here, Bohacek was the successful party because the jury found Caesar negligent and awarded Bohacek $4,000 in damages. It is immaterial that the trial court, in its final judgment, found that the jury’s damage award was completely offset by the subrogation hen held by Caesar and State Farm. Accordingly, we hold that the trial court did not err in signing a judgment in favor of Bohacek and that Caesar was therefore not entitled to recover his court costs.

We overrule Caesar’s second issue.

Conclusion

We reverse that portion of the trial court’s judgment awarding Bohacek his reasonable attorney’s fees and expenses in the amounts of $1,333.33 and $3,211.21, respectively, as well as pre- and post-judgment interest on those amounts, and we render judgment that Bohacek, as the successful party, recover only his taxable court costs from Caesar.

      . Tex. Lab.Code Ann. § 417.003 (Vernon 1996).

      . See id. § 417.002(a) (Vernon 1996) ("the net amount recovered by a claimant in a third-party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the com-pensable injury.”).

      . Both parties argued that, alternatively, the trial court might have awarded Bohacek his attorney’s fees and expenses pursuant to section 417.003(c). However, subsection (c) does not provide for a claimant to recover litigation expenses from an insurance carrier. See Tex. Lab.Code Ann. § 417.003(c).


author: JANE BLAND, Justice.

text:
    Michael Joseph CADDIE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00570-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2004.
    Discretionary Review Refused Dec. 1, 2004.

      Peter Adams, Houston, TX, for Appellant.

      Peyton Z. Peebles, III, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for ap-pellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and CHRISTOPHER.

      . The Honorable Tracy Christopher, Judge of the 295th State District Court of Harris County, Texas, participating by assignment. See Tex. Gov’t Code Ann. § 74.003(h) (Vernon Supp.2004).

   OPINION

JANE BLAND, Justice.

A jury convicted appellant Michael Joseph Caddie of aggravated sexual assault in 1985, and assessed punishment at 70 years confinement. Our court affirmed Caddie’s conviction. Caddie v. State, No. 01-86-00010-CR, 1986 WL 10215 (Tex.App.-Houston [1st Dist.] Aug 14, 1986, no pet.) (not designated for publication). In November 2002, Caddie moved in the trial court for post-conviction DNA testing, pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp.2004). The trial court denied Caddie’s motion. Caddie appeals the order denying his motion for forensic DNA testing, contending that the denial violates his constitutional right to confront witnesses and to due process of law. He further contends that the trial court erred in considering affidavits offered in support of the State’s response to his motion. We conclude that the trial court properly denied Caddie’s motion, and therefore affirm the order.

Background Facts

The State offered affidavits from the records custodians of the Hams County District Clerk, the Houston Police Department (HPD) Crime Lab, and the HPD Property Room. Each custodian swore that his or her department possessed no evidence relating to Caddie’s conviction. The trial court, in its findings of fact and conclusion of law, found that Caddie failed to show, pursuant to article 64.03(a)(i), that DNA evidence “still exists and is in a condition making DNA testing possible.” Tex.Code CRiM. PROC. Ann. art. 64.03(a)(i).

The Constitutional Claims

Caddie contends that the denial of testing violates his federal and state constitutional rights to confront witnesses and to due process because (1) he was not present when the trial court considered his motion for DNA testing and (2) he could not cross-examine the State’s witnesses, as they testified in affidavit form. In connection with this latter complaint, Caddie contends that the trial court erred in considering, over his hearsay objection, the State’s affidavits.

Caddie fails to identify the distinction, if any, between the Confrontation Clause rights afforded in the Sixth Amendment to the United States Constitution and those afforded in Article I, Section 10 of the Texas Constitution. We therefore review Caddie’s state and federal constitutional claims together. See Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.1997) (declining to address alleged violations of Texas Constitution when no distinction made between rights afforded under Texas Constitution and United States Constitution); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992); Griggs v. State, 99 S.W.3d 718, 720 n. 4 (Tex.App.-Houston [1st Dist] 2003, pet. filed).

We conclude that Caddie’s absence from the hearing does not violate his Confrontation Clause rights. Cravin v. State, 95 S.W.3d 506, 509-10 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d) (“[A]ppellant’s exclusion from the post-conviction DNA hearing did not implicate his rights under the Confrontation Clause.”). We further conclude that the Due Process Clause of the United States Constitution does not require that an applicant be present at a proceeding on a motion for forensic DNA testing. Id. at 510-11 (“[T]here is nothing fundamentally unfair about the procedures set out in chapter 64 and followed by the convicting court ... the procedures do not violate appellant’s due process rights.”). Like habeas corpus proceedings, the Confrontation Clause does not require a defendant’s presence at the post-conviction DNA proceeding, and a defendant has no separate constitutional right to cross-examine witnesses who offer affidavits about whether testable evidence exists. Cravin, 95 S.W.3d at 509-10.

Caddie’s complaint as to the use of affidavits is similarly without merit. In Cravin v. State, we rejected the contention that the Confrontation Clause prohibits a trial court from considering affidavits in connection with a motion for forensic DNA testing. 95 S.W.3d at 510-11. We also rejected the defendant’s contention that affidavits constitute inadmissible hearsay. See id. at 511. We held that Chapter 64 allows the State to either submit DNA evidence for testing or to explain in writing why it could not provide the evidence, and thus “the convicting court ... may reach [its] decision based on the sufficiency of the State’s written explanation. No evidentiary hearing is required, and the [S]tate is not required to accompany its response with affidavits.” Id. at 509; see also Tex.Code Crim. Proc. Ann. art. 64.03.

The Denial of the Motion

Chapter 64 of the Code of Criminal Procedure requires the State to submit DNA evidence for testing or explain in writing why it cannot provide the evidence. Tex.Code Crim. Proc. Ann. art. 64.02. The convicting court may determine whether DNA evidence exists and is in a condition to be tested, based on the sufficiency of the State’s written explanation. Id. at art. 64.03; Cravin, 95 S.W.3d at 509.

We review the trial court’s decision with regard to DNA testing using a bifurcated standard of review, articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We defer to the trial court’s determination of historical facts, and its application of law to the facts if it turns on credibility and demeanor, and review de novo applications of law to the undisputed facts. Id.; see also Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). Employing this standard, we defer to a trial court’s finding as to whether the claimed DNA evidence exists and is in a condition to be tested. Rivera, 89 S.W.3d at 59.

Caddie contends that the State failed to satisfy its burden of showing that no evidence exists to test, because “Harris County has within its territorial boundaries a plethora of police and other law enforcement agencies.” Caddie urges that samples of his DNA “could have been sent to any number of additional outside laboratories or agencies,” and thus the State faded to carry its burden.

We disagree. Chapter 64 does not require the State to obtain an affidavit of no testable evidence from every laboratory and police agency in the region. Rather, the State must “deliver the evidence to the court, along with a description of the condition of the evidence” or “explain in writing to the court why the state cannot deliver the evidence to the court.” Tex.Code Crim. Proc. Ann. art. 64.02(2). Here, the State averred that no testable DNA evidence existed from cause number 419171, based upon HPD incident number 4431185. The State submitted the affidavits of the records custodians of the Harris County District Clerk, the HPD Crime Lab, and the HPD Property Room. The record indicates that the offense occurred in Harris County and was investigated by HPD. Caddie did not complain in the trial court that the State’s affidavits left open the possibility that evidence existed elsewhere, and he pointed to no evidence to support his contention. Without a showing of any basis for such a possibility in the trial court, we conclude that the evidence before the trial court was sufficient to support its finding.

Moreover, the State’s response to Caddie’s motion explained that no evidence existed to test because Caddy’s underlying conviction in cause number 419171, is based upon offense report number 4431185, and “according to the Houston Police Department Property Room records, the HPD Property Room is not in possession of any property and/or evidence related to HPD offense report number 4431185.” Furthermore, “the records of the HPD Crime Laboratory reflect that the Crime Laboratory is not in possession of any evidence related to HPD offense report number 4431185.” Finally, the State explained, “[a]ccording to the Harris County District Clerk’s Office’s records, the Harris County District Clerk’s Office destroyed the evidence in cause number 419171 on or about April 4, 1995.” We conclude that the State’s explanation in its response to Caddie’s motion is sufficient to support the trial court’s finding that DNA evidence to test does not exist.

Conclusion

Neither the Due Process Clause nor the Confrontation Clause of the United States Constitution requires that an applicant be present at a hearing on a motion for forensic DNA testing. Nor do they prohibit a trial court from considering affidavits in connection with such an application. Here, sufficient evidence supports the State’s explanation that no DNA evidence exists to test. We therefore affirm the trial court’s order.


text:
    Lisa Lee FULENWIDER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-00784-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 15, 2004.
    Discretionary Review Refused May 4, 2005.

      Ross Palmie, Winston E. Cochran, Jr., Houston, TX, for appellant.
    Alan Curry, Assistant District Attorney, William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosenthal, Jr., District Attorney-Harris County, Keisha L. Smith, Assistant District Attorney, Houston, TX, for appellee.
    Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

A jury convicted appellant, Lisa Lee Fulenwider, of driving while intoxicated (DWI) and assessed punishment at 180 days’ confinement in jail and a $2,000 fine. On the jury’s recommendation, the trial court suspended appellant’s sentence and placed her on 18 months’ community supervision. In three points of error, appellant contends that the trial court erred by (1) admitting retrograde-extrapolation evidence of appellant’s alcohol concentration at the time of the offense, (2) refusing to give a jury-charge instruction requiring a unanimous verdict as to which intoxicant, or combination of intoxicants, caused appellant to be intoxicated, and (3) denying challenges for cause on three potential jurors. We affirm.

Background

On February 12, 2002, appellant and Cecilia Anderson, a co-worker, met at appellant’s Galleria-area apartment around 8:00 p.m., with plans to attend a party in downtown Houston. Appellant was drinking a beer when Anderson arrived. The two spent approximately 15 to 20 minutes at the apartment before leaving. Each left in her own car, with Anderson following appellant towards downtown.

Around 8:50 p.m., appellant was involved in an automobile accident at the intersection of Main and Commerce in downtown Houston. Appellant ran a red light and made a left turn in front of an oncoming car driven by Leroy Hayes Jr., who was driving through a green light. Hayes’s vehicle collided into the side of appellant’s vehicle. Anderson followed though the intersection and pulled over. According to Anderson, Hayes had the right-of-way. Hayes went to appellant’s vehicle immediately following the collision and asked to exchange insurance information. Hayes noticed that appellant was slow in responding, fumbled through her glove compartment, and slurred her speech. Hayes also noticed a strong odor of alcohol on appellant’s breath. When appellant got out of her car, Hayes claimed that she was tripping over herself.

Within 10 minutes of the accident, both Metropolitan Transit Authority (Metro) and Houston Police Department (HPD) officers arrived on the scene. According to one of the Metro officers, appellant admitted that she had been drinking. A Metro police officer inventoried appellant’s car and did not find any alcoholic beverages in the vehicle. An HPD officer noticed that appellant had a strong odor of an alcoholic beverage, slurred speech, and poor balance. The HPD officer asked appellant if she had been drinking, and appellant told him that she had consumed one beer, but admitted that she did not know the time of either her first or last drink. The HPD officer administered the horizontal gaze nystagmus (HGN) test, in which appellant exhibited all six clues indicating intoxication. The HPD officer also testified that appellant performed “very badly” on the one-leg stand test, using her arm once, hopping on her foot twice, and dropping her foot once. Based on appellant’s performance on the two field-sobriety tests, the HPD officer formed the opinion that appellant had lost the normal use of her mental and physical faculties by reason of the introduction of alcohol into her body.

Appellant was arrested for DWI and taken to the police station, where she took an Intoxylizer test. The Intoxylizer operator noticed that appellant had a strong odor of alcohol on her breath, glassy and bloodshot eyes, and “thick-tonged” speech. The alcohol concentration results from appellant’s two breath samples were a .163 at 10:39 p.m. and a .159 at 10:42 p.m. Appellant told the HPD officer that she was taking the prescription anti-depressant Zoloft. Appellant was found in possession of two Zoloft tablets, two Lorazep-am tablets, six lithium carbonate tablets, and a capsule identified as Diovan.

Appellant also performed field-sobriety tests on videotape. She swayed during the one-leg stand test. During the walk- and-turn test, appellant exhibited two clues — an improper turn and a missed heel-to-toe maneuver. Appellant performed normally for a sober person on the Rhomberg test and “did all right” on the finger-to-nose test.

Retrograde Extrapolation Evidence

In her first point of error, appellant contends that the trial court committed harmful, reversible error by admitting retrograde-extrapolation evidence of her alcohol concentration at the time of the offense. Specifically, appellant claims that the State’s expert lacked sufficient facts upon which to base her retrograde extrapolation.

We review a trial court’s decision to admit or to exclude evidence under an abuse-of-discretion standard and will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002).

Retrograde extrapolation is the technique by which alcohol concentration at some earlier time is estimated based on the results of testing at a later time. Mata v. State, 46 S.W.3d 902, 908-09 (Tex.Crim.App.2001). In Mata, the Court of Criminal Appeals concluded that the science of retrograde extrapolation may be reliable under the facts of a given case. Id. at 916. The retrograde-extrapolation expert’s ability to apply the science and explain it with clarity to the court is a paramount consideration. Id. The expert must show some understanding of the difficulties associated with retrograde extrapolation, as well as an awareness of the subtleties of the science and the risks inherent in any extrapolation. Id. Finally, the expert must be able to apply the science clearly and consistently. Id.

In evaluating the reliability of retrograde-extrapolation evidence, a reviewing court considers (1) the length of time between the offense and the administration of the test(s), (2) the number of tests given and the interval between each, and (3) to what extent, if any, the individual characteristics of the defendant were known to the expert in providing his extrapolation. Id. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much alcohol the person consumed on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last alcoholic drink, and how much and what the person had to eat, either before, during, or after the consumption of alcohol. Id.

The expert need not know every personal fact about the defendant to produce an extrapolation with the appropriate level of reliability. Id. If this were the case, no valid extrapolation could ever occur without the defendant’s cooperation, given that a number of facts known only to the defendant are essential to the process. Id. The Court of Criminal Appeals has stated that if more than one test is administered at reasonable intervals, and the first test is conducted within a reasonable time of the offense, then an expert could potentially create a reliable estimate of the defendant’s alcohol concentration with limited knowledge of personal characteristics and behaviors. Id. In contrast, a single test conducted some time after the offense could result in a rehable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Id. A case would “fall in the middle” if the expert is made aware of two or three of the defendant’s personal characteristics and a single test was administered to the defendant within a reasonable length of time from the offense. Id. at 916-17. The Court of Criminal Appeals has suggested that a reasonable interval between the offense and the test is less than one hour. Id. at 912 (explaining that scientific study indicates that potential rate of error increases as time passes and “was particularly large when extrapolating back one hour or more was attempted”).

The Intoxilyzer test was administered to appellant approximately one hour and fifty minutes after the offense. Thus, there was not a reasonable interval between the offense and the test. See id. Additionally, although appellant blew into the Intoxylizer twice, appellant’s two breath samples constituted a single test for Mata purposes because of the short time interval of only a few minutes between the two breath samples. See Douthitt v. State, 127 S.W.3d 327, 334 n. 1 (Tex.App.-Austin 2004, no pet.). Therefore, in order for the State’s expert’s extrapolation to have been reliable, the expert would have needed to know many of appellant’s personal characteristics and behaviors. See Mata, 46 S.W.3d at 916.

Deborah Stephens testified as an expert on behalf of the State. Stephens, an employee of the Austin Police Department Crime Laboratory, had been employed by HPD at the time of appellant’s arrest. Stephens worked for HPD as a forensic chemist assigned to the toxicology section of the laboratory and was also certified as a technical supervisor in charge of the breath-testing program for the City of Houston. Stephens stated that, twice weekly, she would verify that the city’s Intoxylizer equipment was both calibrated and functioning properly. She testified that, on February 12, 2002, the Intoxilyzer 5000 that was used to test appellant’s breath was, in her opinion, calibrated and functioning properly.

Stephens knew the following personal characteristics and behaviors regarding appellant: (1) appellant was female; (2) appellant weighed 135 pounds and was 5'4" tall; (3) appellant’s last meal had been a sandwich, eaten around noon, (4) the time of appellant’s offense was 8:50 p.m., and (5) the time of appellant’s breath tests were 10:39 p.m., with a result of .163, and 10:42 p.m., with a result of .159. During the suppression hearing, Stephens testified that she did not know appellant’s normal drinking patterns or when appellant had her last drink. She further stated that the most important information needed to extrapolate properly is the amount of time transpired between the offense and the breath test and, after that, the time of the last drink.

Appellant contends that the facts that Stevens had were insufficient to render a reliable retrograde extrapolation. In Bhakta v. State, 124 S.W.3d 738 (Tex.App.-Houston [1st Dist.] 2003, pet. struck), we considered whether a testifying expert had sufficient factual basis upon which to form a reliable retrograde extrapolation. In Bhakta, the breath test was performed on the defendant over an hour and a half after the offense, beyond the reasonable time-frame established in Mata. Bhakta, 124 S.W.3d at 742 (citing Mata, 46 S.W.3d at 916). As in this case, the expert in Bhakta knew the defendant’s gender, height, weight, the last meal that the defendant had eaten prior to the offense and the time that he ate it, the time of the offense, the time of the breath test, and the breath test results. Bhakta, 124 S.W.3d at 742. The defendant in Bhakta, however, stipulated as to the time of his last drink prior to the offense. Id. We held that the testifying expert in Bhakta knew a sufficient number of the defendant’s personal characteristics for the expert’s extrapolation to be reliable Id. Thus, the difference between this case and Bhakta is Stephens’s lack of knowledge of the time of appellant’s last drink.

During its case-in-chief, the State asked Stephens to extrapolate hypothetically an alcohol concentration for a female weighing 135 pounds and 5'4" tall, who last ate a sandwich at noon, who was last seen driving at 8:50 p.m., who blew a .163 at 10:39 p.m. and a .159 at 10:42 p.m., and who did not drink alcohol between 8:50 p.m. and 10:42 p.m. The State further asked Stephens to assume that this hypothetical female was eliminating, rather than absorbing, alcohol. On appellant’s voir dire examination, Stephens explained that, in order for this hypothetical female to blow a .163 at 10:39 p.m. and a .159 at 10:42 p.m. and to be eliminating, rather than absorbing, alcohol at 8:50 p.m., that person would have had to have stopped drinking 30 minutes prior to the offense, at 8:50 p.m. Stephens then testified that, based on this hypothetical, and assuming the had person stopped drinking 30 minutes prior to the offense, the person would have had an alcohol concentration raging from .18 to .19 at the time of the offense. In order to achieve such a concentration, Stephens explained, the person would have had to have had 10 to 12 drinks.

Although Stephens did not directly know when appellant had consumed her last drink, we conclude that she did have sufficient basis upon which to determine that appellant had imbibed her last drink at least 30 minutes prior to the offense, at 8:50 p.m. Cecilia Anderson testified that she met appellant at appellant’s apartment prior to their going downtown to attend a party. Anderson stated that she arrived at appellant’s apartment around 8:00 p.m. that evening and that, when she arrived, appellant was still preparing to leave and that appellant was drinking a beer. Anderson stated that she and appellant were at the apartment for about 15 to 20 minutes prior to leaving for the party. Anderson did not see appellant take any alcoholic beverages with her when the two left the apartment. However, on cross-examination, Anderson testified that she recalled only a comment from appellant, stating that appellant would like to have a beer, and that she did not specifically recall seeing appellant opening or holding a beer. Anderson also testified on cross-examination that she did not specifically recall whether she saw appellant take a beer with her when they left the apartment to travel downtown in their separate cars. From Anderson’s testimony, even if appellant drank a beer at her apartment before leaving her apartment at 8:20 p.m., appellant would not have consumed any alcohol for the 30-minute interval before her accident at 8:50 p.m., unless she had been drinking in her car. The HPD officer’s testimony established that no alcohol or alcohol containers were found in appellant’s car after her arrest.

Appellant claimed that Anderson’s testimony did not establish the time of appellant’s last drink, but the trial court found otherwise. In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to give their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Whisenhunt v. State, 122 S.W.3d 295, 298 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d). The trial court may accept or reject all or any part of a witness’s testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980); Whisenhunt, 122 S.W.3d at 298. Prior to ruling, the trial court stated on the record that it found credible Anderson’s testimony that she saw appellant with a beer when she arrived and did not see appellant take any alcoholic beverages with her when they left and that it rejected Anderson’s testimony that she was not certain whether she saw appellant with a beer at the apartment or taking an alcoholic beverage with her in the automobile.

Because there was evidence supporting the trial court’s finding that Anderson’s testimony established the time of appellant’s last drink, we conclude that Stephens had sufficient information available upon which to extrapolate appellant’s alcohol concentration at the time of the offense reliably. See Mata, 46 S.W.3d at 916; Bhakta, 124 S.W.3d at 742. We hold that Stephens’s extrapolation was sufficiently reliable to be useful to the jury and, therefore, that the trial court did not abuse its discretion in admitting the extrapolation evidence. See Mata, 46 S.W.3d at 916; see also Tex.R. Evid. 702.

We overrule appellant’s first point of error.

Disjunctive Jury Charge

In her second point of error, appellant contends that the trial court erred by permitting the jury to return a non-unanimous verdict as to which intoxicant, or combination of intoxicants, caused appellant to be intoxicated.

As a threshold matter, the State responds that appellant has waived review because her objection at trial does not comport with her point of error on appeal. See Tex.R.App. P. 33.1. We address the State’s contention within the context of the standard of review that controls claims of jury-charge errors.

When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; second, if the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected at trial. Abdnor, 871 S.W.2d at 732. When there has been a timely objection made at trial, an appellate court will search only for “some harm.” Id. By contrast, when the error is urged for the first time on appeal, a reviewing court will search for egregious harm. Id. Thus, even if appellant’s complaint on appeal differs from her objection at trial, we will still review the charge for error, but will reverse only if appellant has demonstrated “egregious harm” from the error. See Abdnor, 871 S.W.2d at 731-32; Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171.

A person commits the offense of DWI if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen.Code Ann. § 49.04(a) (Vernon 2003). A person is intoxicated when he loses the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Tex. Pen.Code Ann. § 49.01(2)(A) (Vernon 2003). Alternatively, a person is intoxicated when he has an alcohol concentration of 0.08 or more. Tex. Pen.Code. Ann. § 49.01(2)(B) (Vernon 2003). These two definitions of intoxication set forth alternate means by which the State may prove intoxication, rather than alternate means of committing the offense. Bagheri v. State, 119 S.W.3d 755, 762 (Tex.Crim.App.2003); see also Ex parte Crenshaw, 25 S.W.3d 761, 766 (Tex.App-Houston [1st Dist.] 2000, pet. ref’d) (holding alternate definitions of intoxication do not set forth separate and distinct offenses). The conduct proscribed by the Penal Code is the act of driving while in a state of intoxication. Bagheri, 119 S.W.3d at 766. Therefore, the State may use either the loss-of-nórmal-use definition or the per se definition to prove the offense. Id.

The charge to the jury instructed that appellant should be found guilty of DWI if the jury found beyond a reasonable doubt that appellant operated a motor vehicle in a public place while intoxicated in any of the following ways:

1. not having the normal use of his [sic] mental or physical faculties by the reason of the introduction of alcohol into his [sic] body;
2. OR ... having an alcohol concentration of at least 0.08 in his [sic] breath;
8. OR ... not having the normal use of her mental or physical faculties by the reason of the introduction of a drug, namely, Sertraline into her body;
4. OR ... not having the normal use of her mental or physical faculties by reason of the introduction of a combination of alcohol and a drug, namely Sertraline, into her body....

The verdict form provided the jury with two options: the jury could find appellant guilty of DWI or could find appellant not guilty. Appellant contends that the trial court’s instructions failed to require a unanimous verdict because some of the jurors may have believed that appellant was intoxicated by reason of the introduction of alcohol, others may have believed that appellant was intoxicated by reason of the introduction of Sertraline, and still others may have believed that appellant was intoxicated by reason of the introduction of a combination of alcohol and Sertraline.

A trial court errs when it charges the jury disjunctively on separate offenses and permits the jury to return a single, general verdict of guilty. Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000); Hisey v. State, 129 S.W.3d 649, 652 (Tex.App-Houston [1st Dist.] 2004, pet. filed). In Hisey, the trial court’s charge allowed the jury to convict Hisey of a single murder, regardless of whether the jury believed that he killed his mother, his father, or both parents. Id. at 651-52. We concluded that because the murder of the defendant’s mother was one offense, and the murder of the defendant’s father was a separate offense, the jury charge permitting conviction for murder if the defendant committed either offense allowed for the possibility of a non-unanimous jury verdict of murder. Id. We concluded that the defendant had suffered egregious harm as a result of the erroneous, disjunctive jury charge because the lack of a clear, unanimous verdict deprived the defendant of his rights to trial by jury and of a fair and impartial trial. Id. at 659.

Appellant asserts that the disjunctive jury charge in her case is similar to the charge that we concluded was erroneous in Hisey and that, as a result, she was deprived of a unanimous jury verdict. We disagree. The charge in Hisey instructed the jury to return a general, single verdict of guilty if the jury found beyond a reasonable doubt the defendant had committed any of three separate offenses, whereas the charge in appellant’s case instructed the jury to return a general, single verdict of guilty if the jury found beyond a reasonable doubt that appellant had committed a single offense of DWI and was intoxicated by any of four separate means.

It is appropriate, when alternate theories of committing the same offense are submitted to the jury in the disjunctive, for the jury to return a general verdict of guilty if the evidence is sufficient to support a finding under any of the theories submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). A jury need not agree on the preliminary issues that underlie the verdict. Id.

We conclude that because appellant was charged with a single offense of DWI, the trial court did not err by charging the jury disjunctively on the means of intoxication. See id. Consequently, there was no requirement that the jury return a verdict indicating which intoxicant, or combination of intoxicants, caused appellant to be intoxicated.

We overrule appellant’s second point of error.

Challenges for Cause

In her third point of error, appellant contends that the trial court erred by denying her challenges for cause to jurors Wilson, Rowan, and Godinez. The State responds that appellant has not preserved error for review.

To preserve error with respect to a trial court’s denial of a challenge for cause, an appellant must (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust his peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had had a strike to use. Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App.2003).

The record in this case does not reveal that appellant challenged for cause juror Rowan. Therefore, appellant preserved no error with regard to juror Rowan. See id. Appellant did challenge for cause jurors Wilson and Godinez. However, appellant did not exercise peremptory strikes against either juror Wilson or Go-dinez. Because appellant did not exercise peremptory strikes against jurors Wilson or Godinez, she did not preserve error for review. See id.

We overrule appellant’s third point of error.

Conclusion

We affirm the judgment of the trial court.

      . "Alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine. Tex. Pen.Code Ann. § 49.01(1) (Vernon 2003).

      . Zoloft is the trade name of the drug Sertra-line. It is an anti-depressant prescribed as a mood elevator.

      . The trial court took judicial notice of Stephens's qualifications as an expert in rendering retrograde-extrapolation opinions during the motion-to-suppress hearing outside the presence of the jury.

      . Stephens testified that if two hours had transpired between appellant's last drink and the breath test, "[appellant] was certainly in elimination. She would no longer be absorbing alcohol."

      . The State posed a similar hypothetical during the pre-trial suppressing hearing, at which Stephens testified that the alcohol Concentration at the time of driving would have been between .17 and .18.

      . This definition of intoxication is commonly referred to as the “per se” definition.