source: Caselaw Access Project

author: DAVID R. FARMER, J.,

license: Public Domain

text:
    YOUTH PROGRAMS, INC. v. TENNESSEE STATE BOARD OF EQUALIZATION, et al.
    Court of Appeals of Tennessee, at Jackson.
    Sept. 22, 2004 Session.
    Dec. 14, 2004.
    Application for Permission to Appeal Denied by Supreme Court May 23, 2005.

      Paul G. Summers, Attorney General and Reporter, Mary Ellen Knack, Assistant Attorney General, for the appellant, Tennessee State Board of Equalization.
    Brian L. Kuhn, Shelby County Attorney and Thomas E. Williams, Assistant County Attorney, for the appellant, Shelby County Assessor of Property.
    R. Grattan Brown, Jr. and Katherine P. Griffin, Memphis, Tennessee, for the ap-pellee, Youth Programs, Inc.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

The chancery court reversed the Assessment Appeals Commission and held that Youth Programs, a charitable organization, is entitled to a property tax exemption on real property in Shelby County used in conjunction with the FedEx/St. Jude Classic golf tournament. The trial court determined the disputed property is used exclusively for a charitable purpose and that an unusable area is used constructively and is likewise exempt. The Shelby County Assessor of Property and the State appeal. We affirm.

This dispute requires us to determine whether real property located in the Southwind Planned Development (“South-wind”) in Shelby County (“the property”) and owned by Youth Programs, Inc. (“Youth Programs”) is exempt from property taxation under Tennessee Code Annotated § 67-5-212(a)(l)(A). The parties do not dispute the facts underlying this lawsuit, and stipulated to them at trial.

Youth Programs was organized in 1960 and is a non-profit, 501(c)(3) organization. Its purpose is to raise funds for other 501(c)(3) charitable organizations, and St. Jude Children’s Research Hospital, located in Memphis, (“St. Jude”) has been its sole beneficiary since 1970. Youth Programs conducts one event a year: the FedEx/St. Jude Classic golf tournament (“the tournament”). The tournament is a PGA professional tournament and is conducted pursuant to the terms of a PGA Tour Sponsor Agreement executed in 1999. The PGA Tour receives entry fees for players who participate in the tournament. Additionally, Youth Programs and Federal Express Corporation (“FedEx”) entered into a Sponsorship Agreement in 1998, pursuant to which FedEx is the title sponsor of the tournament. Under the Sponsorship Agreement, FedEx provides security services, express shipping services, and communication at no charge. FedEx also makes monetary contributions to Youth Programs to partially fund the tournament’s three-million dollar prize purse. Youth Programs generates the sums necessary to fund the remainder of the purse and to pay other costs. As of December 2001, when this matter was heard before the Assessment Appeals Commission, Youth Programs was conducting the tournament with five full-time and six part-time staff members and approximately 1,400 community volunteers. Youth Programs donates the proceeds from the tournament to St. Jude. The tournament had generated over $12,500,000 for St. Jude through the date of the 2001 hearing.

Youth Programs uses the property which is the subject of this action for one month a year, exclusively for the tournament. For the remainder of the year, the property is closed to the public and unused. This property includes two parcels of land: Parcel 9/Lot C and Lot 25. Parcel 9/Lot C is a 24 acre lot. Youth Programs uses 17 acres of this parcel as a staging area for three weeks prior to the tournament and as a parking area for approximately 1,700 vehicles for one week during the tournament. The remainder of Parcel 9/Lot C is wooded and unusable. Youth Programs uses Lot 25 as a walkway from Parcel 9/Lot C to the tournament grounds. For the tournament itself, Youth Programs uses the golf facility at Southwind free of charge under an agreement entered into between Youth Programs and the Tournament Players Club at Southwind. Much of the revenue raised from the tournament is generated by the sale of corporate ticket packages, which include passes for parking on the property. Phil Cannon, the Director of the tournament, characterized the parking passes as an “integral part of every sale we (Youth Programs) make(s).”

In September 1999, Youth Programs applied to the State Board of Equalization for a charitable exemption from ad valo-rem property taxation on the property. The Shelby County Assessor of Property (“the County”) and the Tennessee Board of Equalization (“the Board”) denied Youth Programs’ applications for property tax exemptions relative to the property. The Board reasoned that, despite its not-for-profit status, Youth Programs fundamentally is engaged in the business of producing a sporting event. The Board determined, therefore, that Youth Programs was not entitled to property tax exemption under Tennessee Code Annotated § 67-5-212(a)(3) because it uses the property for commercial rather than charitable purposes. The Assessment Appeals Commission affirmed the Board’s determination.

Youth Programs appealed the determination of the Assessment Appeals Commission to the Shelby County Chancery Court, which reversed. The chancellor determined that, as a charitable organization whose sole purpose is to raise funds for other charitable organizations, Youth Programs uses its property exclusively in accordance with its charitable purpose as required by Tennessee Code Annotated § 67 — 5—212(a) (1) (A). The chancellor further held Youth Programs is not fundamentally engaged in a business enterprise, and that the use of its property was a reasonable use. Accordingly, the chancellor held Youth Programs is exempt from ad valorem property taxation. The State and the County (collectively, “the State”) filed timely appeals to this Court. We affirm.

Issues Presented

Appellants present the following issues for our review:

1. Whether the chancery court erred in holding that Youth Programs was entitled to an exemption from ad valorem property taxation for property used as a parking and staging area for the FedEx/St. Jude Classic.
2. Whether the chancery court erred in holding that Youth Programs was entitled to a property tax exemption for the entire 24-acre tract of land known as Parcel 9/Lot C when it was undisputed that only 17 acres of the property were actually used by Youth Programs.

The County presents the additional issue of whether the trial court applied the incorrect standard of review or incorrectly substituted its judgment for that of the State Board of Equalization.

Standard of Review

This appeal involves determinations of matters of law. We review the trial court’s conclusions on matters of law de novo, with no presumption of correctness. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

We first address the issue raised by the County regarding the trial court’s standard of review. The County asserts the trial court incorrectly applied a de novo standard of review. The Administrative Procedures Act governs appellate review of an administrative law judge’s decision. Freedom Broad. of TN, Inc. v. Tennessee Dep’t of Revenue, 83 S.W.3d 776, 780 (Tenn.Ct.App.2002)(citing Sanifill of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd., 907 S.W.2d 807, 809 (Tenn.1995)). The Act provides, in pertinent part:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(5) Unsupported by evidence which is both substantial and material in the light of the entire record.

Tenn.Code Ann. § 4-5-322(h)(1998). Review of an agency’s findings of fact is limited to the record of the case. Tenn. Code Ann. § 4-5-322(g)(l998); Freedom Broad., 83 S.W.3d at 781 (citing Sanifill, 907 S.W.2d at 810). The application of the law to the facts, however, is a question of law that may be addressed by the courts. Id. The question of whether the purpose for which property is used qualifies the property as exempt from taxation under the statutes is a question of law for the courts. Book Agents of the Methodist Episcopal Church, S. v. State Bd. of Equalization, 513 S.W.2d 514, 521 (Tenn.1974)(citing Oak Ridge Hosp. v. City of Oak Ridge, 57 Tenn.App. 487, 420 S.W.2d 583 (1967)).

In the present case, the parties have stipulated to the facts. The manner in which Youth Programs uses its property is not disputed. The only question before the trial court was whether this purpose qualifies the property for tax exempt status under section 67-5-212. Therefore, the trial court applied the correct standard of review.

We turn next to whether the chancery court erred in determining Youth Programs is entitled to an ad valorem property tax exemption on property used exclusively for the tournament to raise funds for St. Jude. Article 2, Section 28 of the Constitution of Tennessee subjects all property to taxation but grants authority to the legislature to exempt certain properties, including properties “held and used for purposes purely religious, charitable, scientific, literary, or educational.” The legislature has exercised this authority through the Tennessee Code, which, as currently codified at 67-5-212, provides:

(a)(1)(A) There shall be exempt from property taxation the real and personal property, or any part thereof, owned by any religious, charitable, scientific or nonprofit educational institution which is occupied and used by such institution or its officers purely and exclusively for carrying out thereupon one (1) or more of the purposes for which the institution was created or exists, or which is occupied and used by another exempt institution purely and exclusively for one (1) or more of the purposes for which it was created or exists under an arrangement whereunder the owning institution receives no more rent than one dollar ($1.00) per year; provided, that the owning institution may receive a reasonable service and maintenance fee for such use of the property; and provided further, that if the owning institution owns and operates real and personal property consisting of a parking garage and leases parking spaces in such parking garage to a metropolitan hospital authority for a metropolitan government hospital and the staffing for such hospital by a medical and dental school, such parking garage shall be exempt from property taxation, provided that from and after July 1, 2004, such parking garage shall be exempt from property taxation only to the extent parking spaces in such parking garage are actually leased by the metropolitan government hospital authority; and provided further, that no church shall be granted an exemption on more than one (1) parsonage, which shall include not more than three (3) acres of land except as hereinafter provided in this subdivision (a)(1); and provided further, that no property shall be totally exempted, nor shall any portion thereof be pro rata exempted, unless such property or portion thereof is actually used purely and exclusively for religious, charitable, scientific or educational purposes.
(B) Notwithstanding the limitations contained in this subdivision (a)(1), that portion of the real property owned by the headquarters of a religious institution, which was previously used as the campus of a college owned and operated by such institution is exempt from taxation, if such real property is leased to a non-profit organization exempted from the payment of federal income taxes by Internal Revenue Code (26 U.S.C. § 501(c)(3)) which is leasing the property from such religious institution to operate a kindergarten through grade twelve (K-12) school and which organization has been accredited by the Tennessee association of non-public academic schools. This exemption shall be granted even though the religious institution is receiving more than a reasonable service and maintenance fee for such use of the property but less than fair market value through a lease agreement with such non-profit organization. Such tax exemption shall be retroactive to the first use and reclassification of property to which it applies.
(2) In determining the exemption applicable to a post-secondary educational institution, there shall be a presumption that the entire original campus of an institution chartered before 1930 is an historical and integral entity, and is exempt so long as no particular portion of such campus is used for nonexempt purposes.
(3) The property of such institution shall not be exempt if:
(A) The owner, or any stockholder, officer, member or employee of such institution shall receive or may be lawfully entitled to receive any pecuniary profit from the operations of that property in competition with like property owned by others which is not exempt, except reasonable compensation for services in effecting one (1) or more of such purposes, or as proper beneficiaries of its strictly religious, charitable, scientific or educational purposes; or
(B) The organization thereof for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such institution, or for any of its members or employees, or if it be not in good faith organized or conducted exclusively for one (1) or more of these purposes.
The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt; but if a portion only of any lot or building of any such institution is used purely and exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion shall be subject to taxation.

Tenn.Code Ann. § 67-5-212(a)(Supp.2004). In Tennessee, unlike many other states, tax exemption statutes are construed liberally in favor of religious, charitable, scientific, and educational institutions. Book Agents, 513 S.W.2d at 521(citing George Peabody College for Teachers v. State Bd. of Equalization, 219 Tenn. 123, 407 S.W.2d 443 (1966)).

The parties do not dispute that, under section 67-5-212, the property must be used exclusively for a charitable purpose in order to be exempt from property taxation. Rather, the parties raise the issue of what constitutes a charitable use under the Code. Youth Programs asserts that it is exempt from taxation under section 67-5-212 because it is a non-profit, charitable organization which uses the property exclusively for its stated charitable purpose of raising funds for St. Jude through the tournament. The State does not argue that proceeds from the tournament do not inure to the benefit of St. Jude. Rather, the State asserts that Youth Programs confuses its charitable purpose (raising funds for St. Jude) with a commercial activity it undertakes in order to raise these funds (the tournament). The State contends that when Youth Programs conducts the tournament, it is embarking in a business for profit. It argues that the fact that Youth Programs donates the profits to St. Jude does not change the nature of the tournament, which is a commercial enterprise. In support of its argument, the State cites Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769, 772 (1963), wherein the Tennessee Supreme Court held: “when a charity embarks in business for profit it becomes liable for taxation as any other business establishment.”

Thus, the question before this Court is whether the exclusive use of the property as a staging/parking area for the tournament, where the property is owned by a charitable organization and where the proceeds generated by the property benefit another charitable organization, constitutes a charitable use under the statute. As the parties agree, there is no previously reported Tennessee case involving the same factual circumstances. After reviewing the reasoning contained in the body of Tennessee case law, however, and in light of the purposes of the statute and the liberal construction afforded to it, we hold that the property which is the subject of this lawsuit is exempt from property taxation under section 67-5-212.

Tennessee courts have held that, in order to be exempt from taxation, property owned, occupied, and used by a charitable institution must be used exclusively for carrying out one or more of the purposes for which the institution exists or for a purpose which is directly incidental to the institution’s purpose. City of Nashville v. State Bd. of Equalization, 210 Tenn. 587, 360 S.W.2d 458, 466 (1962); George Peabody College for Teachers v. State Bd. of Equalization, 219 Tenn. 123, 407 S.W.2d 443, 446 (1966). It is use of the property, and not the charitable nature of its owner, which determines its exempt status. Mid-State Baptist Hosp., Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769, 772 (1963). Property that is used by a charity embarking on a business for profit on that property becomes liable for taxation. Id.

The State relies heavily on City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458 (1962), Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769 (1963), and Book Agents of the Methodist Episcopal Church v. State Board of Equalization, 513 S.W.2d 514 (Tenn.1974), cases in which the supreme court considered the status of property used by nonprofit institutions. In City of Nashville, the property in dispute was owned by the Sunday School Board of the Southern Baptist Convention (“the Sunday School Board”), whose principal activity was the publication and sale of religious materials and publications to churches in the Southern Baptist Convention and their members. City of Nashville, 360 S.W.2d at 460. The City of Nashville argued that the portion of the Sunday School Board’s property used for the parking lots, cafeteria, and snack bar were not used for the purposes stated in the Sunday School Board’s charter and that they were not, therefore, exempt from taxation. Id. at 461. The Sunday School Board, on the other hand, argued that these portions of its property were being used “either purely and exclusively for religious purposes or for purposes so close thereto as to come within the exemption provided by the statute.” Id.

The court in City of Nashville analyzed the evolution of the exemption statutes and case law and stated, “it is seen that the scope of tax exemption of property of such institutions has been steadily narrowed by decisions of this Court under our successive revenue acts[J” City of Nashville v. State Bd. of Equalization, 360 S.W.2d 458, 464 (Tenn.1962). The court noted that the statute limited the exemption to property “occupied” by an exempt institution “exclusively” for carrying out the “purposes for which the institution was created or exists.” Id. at 465. It further noted that property is not exempt where it is not used “exclusively” for carrying out the purposes of the institution or where anyone receives or is entitled to receive “any pecuniary profit from the operations of that property in competition with like property owned by others which is not exempt.” Id. at 465-66.

The City of Nashville court opined,
[w]e think, however, it can hardly be said that the [Sunday School] Board’s use of these parts of its real estate, as above described, for the operation of its parking lots, cafeteria, and snack bar, is a use ‘for purposes purely religious,’ as contemplated in our Constitution (Art. 2, sec.28), or a use ‘exclusively’ for a religious purpose of its charter, as contemplated by the Act of 1935.

Id. at 467. Despite the fact that the portions of the property in question were used only by the Sunday School Board’s employees and were not operated for profit, the court found, “such operations are not religious activities, but are secular business enterprises, carried on in competition with other like businesses that pay taxes to the state, the county, and the city; and such businesses are taxed as a privilege.” Id. It held that since the Sunday School Board did not use these portions of their property “exclusively” for religious purposes, the property used for parking lots, a cafeteria, and a snack bar were not exempt from taxation. Id.

In Mid-State Baptist Hospital, the supreme court addressed the question of when property that had been exempt from taxation would become taxable where a portion of the property was under construction and that portion was to be used commercially. Mid-State Baptist Hosp., Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769 (1963). The City of Nashville argued that, because the property was under construction, it was not being used exclusively for the charitable purposes for which the Hospital was built and that it was, therefore, subject to taxation. Id. at 772. Noting Tennessee’s liberal construction of a tax exemption in favor of charitable institutions, the court held, “[w]hen real property is not on the tax rolls by reason of being exempt it should take use to put it back on, not intention.” Id. at 773. The supreme court affirmed the chancellor’s determination that the Hospital would not be liable for the tax on the property under construction until the year in which it was put to commercial use. Id.

The supreme court re-visited the issue of what constitutes use for the purposes of exemption from taxation in George Peabody College for Teachers v. State Board of Equalization, 219 Tenn. 123, 407 S.W.2d 443 (1966). In George Peabody College, the court considered whether facilities owned by an educational institution and used as student housing were subject to property taxation to the extent they were occupied by family members of the students. Id. The George Peabody College court noted that the courts below had “obviously relied upon the prior interpretation and application by this Court of T.C.A. s67-502(2) in City of Nashville v. State Board of Equalization ” when determining the property was not exempt from taxation. Id. It further noted and emphasized, however, that,

[s]ince the decision in that case, this Court in Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769 (1963), has emphatically restated the proposition that in this State, contrary to most other states, tax exemption in favor of religious, scientific, literary and educational institutions are liberally construed rather than strictly. It is further pointed out that the opinion in City of Nashville v. State Board of Equalization ... in nowise dilutes the rule of liberal interpretation.

Id. at 445.

After reviewing the history of Tennessee statutes granting tax exempt status to religious, charitable, scientific, and educational institutions, the George Peabody College court noted that the principal underlying the several versions of the statutory exemption with regard to the exclusive use requirement has remained the same. “[T]hat is, that when property is used for a purpose directly incidental to the primary purpose, [in this case] education, it is to be regarded as exempt from taxation. The wisdom imparted in ... [State v. Fisk University, 87 Tenn. 233, 10 S.W. 284 (1889)] is as valid now as it was at the time of delivery in 1888.” Id. The George Peabody College court held that the housing facilities provided by the college to students and their spouses and children were directly incidental to, and an integral part of, the educational purposes of the college and were, therefore, exempt from property taxation. Id. at 446.

In Book Agents, the supreme court again considered the status of property belonging to a religious institution engaged in publishing and printing. Book Agents of the Methodist Episcopal Church v. State Bd. of Equalization, 513 S.W.2d 514 (Tenn.1974). The court held that the portion of property used for the printing and publication of materials related to the religious purpose of the institution (Sunday school curriculum materials, officer training manuals, commentaries on denominational government and similar literature) were exempt from taxation. Id. at 524. It further held that the publishing and printing of secular materials and commercial printing were not exempt uses of the property. Id. at 524-25. The Book Agents court affirmed the chancellor’s order that a “tax be levied to the extent of the dollar volume of exempt activity as compared with the entire dollar volume of business done by the property owners.” Id. at 525.

In reaching its holding, the Book Agents court recognized that “[t]he exclusive use requirement has been interpreted to refer to the direct, physical use of property rather than the ultimate use of proceeds from the activity.” Id. at 528. The court further noted that the fact that the institution uses its property in competition with taxpaying businesses is relevant but not determinative to tax exempt status. Id. The court stated, “[o]ther companies could compete with an institution’s efforts to accomplish an exempt institutional purpose, but circumstances may indicate that the purpose is not exempt.” Id. In sum, the determinative question was not solely whether the use of the property could be considered fundamentally commercial in nature, but whether the property was used for the stated purposes for which the exempt institution was created or exists.

In 1984, the supreme court again considered the tax status of property incidental to the stated purposes of an exempt institution. In Methodist Hospitals of Memphis, the State sought to levy an ad valo-rem property tax on a parking lot owned by the Hospital and used to provide free parking to Hospital employees. Methodist Hosps. of Memphis v. Assessment Appeals Comm’n, 669 S.W.2d 305, 306 (Tenn.1984). The Methodist Hospitals court noted an apparent conflict in the law due to the court’s interpretation of the requirement that exempt property must be used “purely and exclusively” for the institution’s purpose. Id. The court stated, however, “[i]n a series of cases decided since City of Nashville v. State Board of Equalization ... this court has held that the use requirement for property to be exempt is met where the use is ‘directly incidental to or an integral part of one of the recognized purposes of an exempt institution.” Id. at 307. Noting the mobility of contemporary society and the need to provide safe, convenient parking around-the-clock to employees, the court held the Hospital employee parking lot was exempt from taxation as an “essential and integral part” of the Hospital. Id. Similarly, in Shared Hospital Services Corporation v. Ferguson, the supreme court held that the laundry facilities of a non-profit cooperative whose members were hospitals and which supplied laundry services to those members was exempt from taxation. Shared Hosp. Servs. Corp. v. Ferguson, 673 S.W.2d 135 (Tenn.1984). In that case, the State argued that Shared Hospital Services was a large commercial laundry which operated in direct competition with similar tax-paying enterprises. Id. at 137. The State further contended the facility’s lunchroom and parking lot were subject to taxation under City of Nashville. Id. The supreme court held the parking lot was exempt under Methodist Hospitals, and that the lunchroom also was exempt. The court further held that laundry services were part of hospital operations, and that the property of the non-profit corporation formed solely to provide those services was exempt from taxation. Id. at 139.

Subsequent to the supreme court’s holding in Shared Hospital Services, this Court considered whether a gift shop located within a hospital, operated by the hospital, and staffed by volunteers was exempt from taxation under section 67-5-212. Middle Tenn. Med. Ctr. v. Assessment Appeals Comm’n, No. 01A01-9307-CH-00324, 1994 WL 32584 (Tenn.Ct.App. Feb.4, 1994)(perm. app. denied May 9, 1994). In Middle Tennessee Medical Center, we held that the gift shop was “a traditional hospital function” and was “ ‘directly incidental to or an integral part of the charitable function of the medical center.” Id. at *4. Accordingly, we held the gift shop was exempt from taxation under the section. Id. We further determined that an exercise or wellness center located in the hospital but advertised to the general public was exempt only to the extent that it was utilized by patients under a doctor’s care. Id. at *5.

This Court recently determined that certain real properties owned by religious institutions were not exempt from taxation in First Presbyterian Church of Chattanooga and Christian Home for the Aged. In First Presbyterian, we considered the tax status of a house owned by a church and used for the convenience of missionaries on home assignment. First Presbyterian Church of Chattanooga v. Tennessee Bd. of Equalization, 127 S.W.3d 742 (Tenn.Ct.App.2003)(perm. app. denied Feb. 2, 2004). The property in dispute in First Presbyterian was church property used to provide housing to overseas missionaries temporarily returning to the United States. Id. It also was occupied temporarily by a church minister who was relocating to Chattanooga while he was searching for permanent housing. Id. We held that although the church’s mission projects were commendable, the use of property as temporary housing for the convenience of oversees missionaries was not “reasonably necessary to a missionary being able to accomplish the Church’s religious purpose” and, therefore, was not within the statutory exemption. Id. at 748-49. Similarly, in Christian Home for the Aged, we determined that retirement community property owned by a religious institution was not exempt from taxation under section 67-5-212(a). Christian Home for the Aged, Inc. v. Tennessee Assessment Appeals Comm’n., 790 S.W.2d 288, 291 (Tenn.Ct.App.1990)(perm. app. denied May 7,1990). In Christian Home for the Aged, we noted that the property primarily was occupied for residential purposes and not to further any religious purpose. Id. Further, the residential facilities were not offered without rent or donations but were available only to those who were financially able to afford them and who had been “scrutinized for financial ability as well as moral character and physical condition.” Id. at 292. We accordingly held that the chapel located within the retirement community qualified for exemption from taxation, but that the residential facilities did not. Id.

In the case now before this Court, the State does not dispute that Youth Programs is a non-profit organization, nor does it assert that Youth Programs does not, in fact, donate the proceeds of the tournament to another charitable institution. The State also does not dispute that Youth Programs was created for the purpose of raising funds for other charities or that, since 1970, Youth Programs has existed to raise funds for St. Jude through the tournament. Rather, in its argument, the State asserts that “the fact that Youth Programs donates large sums of money to a charitable institution does not make Youth Programs a charitable institution within the meaning of this state’s property tax exemption statutes.” The State further contends that the property is not exempt because the use of the property as a parking lot/staging area for the tournament is a revenue-generating enterprise and not a charitable endeavor. The State’s argument is that, although Youth Programs uses the property exclusively for its stated purpose of raising funds for charities (in this situation, St. Jude), the fund-raising event itself is fundamentally commercial in nature. Additionally, the State asserts that, because Youth Programs uses the property for only one month a year, its use is “de minimus ” and does not justify removal of the property from the tax rolls.

We first turn to the State’s assertion that Youth Programs is not a charitable institution for purposes of the tax exemption statutes and, therefore, is not exempt from ad valorem property taxation under section 67-5-212(a). In order to be exempt from taxation under section 67-5-212(a), the institution must qualify as charitable. Shared Hosp. Servs. Corp. v. Ferguson, 673 S.W.2d 135, 137 (Tenn.1984). This poses the question of whether institutions which exist solely to raise funds for other charities and which, therefore, do not themselves engage in religious, scientific, educational, or medical activities, or in the traditionally recognized “good works” activities of feeding the poor or housing the homeless, should be considered charitable as contemplated by the statutes.

In considering this question, we again note that Tennessee historically has construed its exemption statutes liberally in favor of charitable institutions in recognition that such institutions confer a benefit on the public and consequently relieve, to some extent, the state’s burden to care for and advance the interests of its citizens. Book Agents of the Methodist Episcopal Church v. State Bd. of Equalization, 513 S.W.2d 514, 521 (Tenn.1974)(quoting M.E. Church, S. v. Hinton, 92 Tenn. 188, 21 S.W. 321, 322 (Tenn.1893)). At the same time, however, we must balance this construction against the “fundamental rule that all property shall be taxed and bear its just share of the cost of government, and no property shall escape this common burden, unless it has been duly exempted by organic or statute law[J” City of Nashville v. State Bd. of Equalization, 210 Tenn. 587, 360 S.W.2d 458, 461 (1962) (citations omitted). Further, not every use of property by a charitable institution is automatically entitled to an exemption merely because it can be characterized as generally promoting the institution’s purpose in some way, particularly where the use is a revenue-generating one. See Middle Tennessee Med. Ctr. v. Assessment Appeals Comm’n, No. 01A01-9307-CH-00324, 1994 WL 32584, at * 5 (Tenn.Ct.App. Feb.4, 1994)(perm. app. denied May 9, 1994).

The Code defines a charitable institution as “any nonprofit organization or association devoting its efforts and property, or any portion thereof, exclusively to the improvement of human rights and/or conditions in the community.” Tenn.Code Ann. § 67-5-212(c)(Supp.2004). In light of the supreme court’s holding in Shared, Hospital Services, discussed above, we believe Youth Programs qualifies as a charitable institution for purposes of Tennessee’s tax exemption statutes. Youth Programs is not, contrary to the State’s assertion, a revenue-generating organization in a commercial sense. Rather, it exists to raise funds for recognized charities and, since 1970, has raised funds exclusively for St. Jude. This unquestionably confers a benefit on the public and improves conditions in the community.

We next consider the State’s argument that Youth Programs was not created to provide staging or parking areas for golf tournaments, and that, assuming Youth Programs qualifies as a charitable institution, the golf tournament is fundamentally commercial in nature. Although we agree that Youth Programs’ stated purpose is not to provide staging areas or parking lots, neither is its purpose to provide health care, conduct scientific inquiry, educate the public, or to engage in religious activity. Rather, it is a charitable institution organized to raise funds for other charities, and it has been granted federal tax-exempt status as a charitable institution to engage in this purpose. In light of this purpose, we cannot imagine an activity in which Youth Programs might engage that would not be a considered a commercial endeavor were it not conducted by a charitable institution and the proceeds not given to a charity. The simplest bake sale involves the commercial activity of selling baked goods and, albeit to a negligible extent, competes with commercial, tax-paying entities conducting the same enterprise. The fact that a charitable institution’s activities may be similar to or in competition with tax-paying businesses does not by itself render the property on which it conducts those activities taxable. Book Agents, of the Methodist Episcopal Church v. State Bd. of Equalization, 513 S.W.2d 514, 523 (Tenn.1974). For-profit entities may exist to provide the same services as non-profit, charitable entities. Id. We recognize, moreover, that the tournament in this case includes a substantial purse or profit to the tournament winner. However, the fact that a profit is generated by an organization’s activities is not determinative. Section 67-5-212 disallows the exemption only where stockholders, officers, members, or other employees receive or are entitled to receive profits other than reasonable compensation for services. Tenn.Code. Ann. § 67-2-212(a)(3)(A); Book Agents, 513 S.W.2d at 523.

The primary inquiry in the cases discussed above was whether the non-profit, educational, charitable, or religious institution or hospital used the property exclusively and purely for the purpose(s) for which the institution was created or exists, or for a purpose directly incidental to the institutional purpose(s). The same inquiry is determinative here. If the organization is charitable for the purposes of section 67-5-212, and if it uses its property specifically and exclusively for the purposes for which is was created or exists, or for a purpose directly incidental to that purpose, then, assuming compliance with the remainder of the section, that property is tax-exempt. Youth Programs undisputedly uses its property to raise funds for St. Jude and, therefore, uses it for its institutional purpose.

We next consider the State’s contention that Youth Programs’ use of the property is a de minimus use which cannot justify taking this real property off the tax rolls. Although Youth Programs uses the property for only one month a year, there is nothing in the statutes or case law which would mandate continuous use. On the contrary, under Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769 (1963), where the supreme court held that exempt property under construction and therefore unused would not be subject to taxation until converted by the exempt hospital to a commercial use, continuous use is not required for purposes of the exemption. Applying the reasoning of the Tennessee Supreme Court cases discussed above, we hold the property owned and used by Youth Programs in this case is exempt from taxation under section 67-5-212(a).

We finally turn to the status of the portion of Youth Programs’ property that is unused and unusable. Parcel 9/Lot C consists of 24.17 acres property. Seventeen acres actually are used for parking; the remainder is wooded, includes a drainage ditch, and cannot be used for parking or staging purposes in its present condition. The State asserts that, if the property actively used by Youth Programs is exempt from taxation, the wooded portion of the property which is not used is subject to taxation. The State’s argument, as we understand it, is that the exemption requires actual active use, and the seven wooded acres are simply not used and therefore not exempt.

Youth Programs, on the other hand, asserts that, although the wooded area is not used for parking, it is necessary because it includes the access road from the public road to the parking area. Youth Programs further asserts the drainage ditch is necessary to allow water to flow through the property. The trial court held this portion was “constructively used” and exempt from taxation.

Clearly, if this portion of Youth Programs’ property were leased to a commercial enterprise or used for a purpose not related to the charitable purposes of Youth Programs, it would be subject to taxation. In this case, however, the wooded area is substantially unusable in its present condition, and the drainage ditch allows water to flow through the property. We agree with the trial court that it is exempt from taxation under section 67-5-212(a).

Conclusion

We are not insensitive to the State’s position in this case. The State’s argument, in essence, is predicated on the larger questions of limitations and potential abuse of the exemption statutes. While we do not believe such abuse exists in this case, we observe that the statute is, as previously noted by the courts, somewhat ambiguous. See Book Agents of the Methodist Episcopal Church v. State Bd. of Equalization, 513 S.W.2d 514, 527(Tenn.1974)(Leech, S.J., concurring). Thus, as. we have previously emphasized, each case must be decided on its facts and upon the application of the law to those specific facts. See, e.g., Middle Tennessee Med. Ctr. v. Assessment Appeals Comm’n, No. 01A01-9307-CH-00324, 1994 WL 32584, at * 5 (Tenn.Ct.App.- Feb. 4, 1994)(perm. app. denied May 9, 1994). The State vehemently asserts that the statutes were not intended to encompass charities which exist to raise funds for other charities. We note, as Youth Programs submits, that this argument has broad implications for a number of charitable institutions such as, for example, the United Way. In light of the ambiguity of the statutes and the historically liberal construction in favor of charitable institutions, we are loathe to disturb that construction here. See id. (quoting Gallagher v. Butler, 214 Tenn. 129, 378 S.W.2d 161 (1964)(quoting New England Mutual Life Ins. Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238 (1935))). Without so suggesting, if such institutions should not be recognized as charitable, it is within the province of the legislature to disturb the construction of the statutes historically afforded in Tennessee.

In light of the foregoing, Youth Programs is exempt from taxation under Tennessee Code Annotated 67-5-212(a) where Youth Programs uses the property exclusively for the charitable purposes for which Youth Programs was created. We accordingly affirm the trial court on this issue. We likewise affirm the trial court’s determination that the wooded portion of the property is exempt from taxation. Costs of this appeal are taxed to the Appellants, the Tennessee State Board of Equalization and Shelby County Assessor of Property.

      . Youth Programs is exempt from the payment of federal income taxes as a charitable entity under 26 U.S.C. § 501(c)(3).

      . Section 67-5-212(a)(3) provides:
      (3) The property of such institution shall not be exempt if:
      (A) The owner, or any stockholder, officer, member or employee of such institution shall receive or may be lawfully entitled to receive any pecuniary profit from the operations of that property in competition with like property owned by others which is not exempt, except reasonable compensation for services in effecting one (1) or more of such purposes, or as proper beneficiaries of its strictly religious, charitable, scientific or educational purposes; or
      (B) The organization thereof for any such avowed purpose be a guise or pretense for directly or indirectly making any other pecuniary profit for such institution, or for any of its members or employees, or if it be not in good faith organized or conducted exclusively for one (1) or more of these purposes.
      The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt; but if a portion only of any lot or building of any such institution is used purely and exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion shall be subject to taxation.
      Tenn.Code Ann. § 67-5-212(a)(3)(Supp.2004).

      . The State does not contend that St. Jude is not a charitable institution.

      . As noted by the supreme court, following the decision of the Board of Equalization in George Peabody College, the legislature enacted section 67 — 502, currently section 67-5-213, which provides:
      (a) Real estate owned by an educational institution and used primarily for dormitory purposes for its students, even though other student activities are incidentally conducted therein, and even though the student’s spouse or children may reside therein, is exempt from taxation.
      Tenn.Code Ann. § 67-5-213(2003).

      . The Book Agents court addressed the taxing authorities' contention that if the property was not entirely used for exempt purposes, then all the property was taxable by noting that then section 67 — 502(2) provided, in pertinent part:
      if a portion only of any lot or building of any such institution is used exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation.

        Book Agents, 513 S.W.2d 514, 525 (Tenn.1974) (quoting Tenn.Code Ann. § 67— 502(2)).
      The provision as currently codified states:
      The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt; but if a portion only of any lot or building of any such institution is used purely and exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion shall be subject to taxation.
      Tenn.Code Ann. § 67-5-212(a)(3)(Supp.2004).

      . We note Justice Fones dissent in Shared Hospital Services Corporation. In his dissent, Justice Fones stated:
      The Tennessee definition of a charitable institution requires, in essence, that its efforts and property be devoted "exclusively to the improvement of human rights and/or conditions in the community." I cannot agree that a legal entity carrying out its chartered purpose of furnishing reusable or disposable laundry supplies to non-profit charitable or other exempt institutions is thus devoting its efforts and property exclusively to the improvement of human rights and/or conditions in the community. The furnishing of laundry supplies is simply not ministering to the needs of the community.
      In Tennessee we have a three-pronged test that must be met in order to qualify for the exemption at issue in this case. First, the institution must be qualified as a religious, charitable, scientific or educational institution. Second, it must own the property that it claims to be exempt. Third, the properly must be occupied and used exclusively for one or more of the exempt purposes of its charter by the exempt institution. Book Agents of Methodist Episcopal Church v. State Board of Equalization, 513 S.W.2d 514 at 522 (Tenn.1974). Plaintiff's property is used exclusively as a laundry which is not an exempt purpose and it seems to me that even if it could qualify as a charitable institution it would still fail to meet the third necessary prerequisite.

        Shared Hospital Servs. Corp. v. Ferguson, 673 S.W.2d 135, 140 (Tenn.1984)(Fones, J„ dissenting).


author: HOLCOMB, J.,

text:
    Henry Tom GARLAND, Appellant, v. The STATE of Texas.
    No. PD-1231-04.
    Court of Criminal Appeals of Texas.
    June 29, 2005.
    Rehearing Denied Sept. 14, 2005.
    Suzanne Kramer, San Antonio, for appellant.
    Aan E. Battaglia, Assist. DA, San Antonio, Matthew Paul, State’s Attorney, Austin, for state.
   HOLCOMB, J.,

delivered the opinion of the unanimous Court.

The court of appeals held that appellant’s negotiated plea of nolo contendere was involuntary and that his sentence was illegal. We reverse.

Our discussion begins with a review of the relevant facts. On December 19, 2001, a Bexar County grand jury presented an indictment that charged appellant with two second-degree felonies, to wit: sexual assault (Count I) and indecency with a child (Count II). See Tex. Pen.Code §§ 21.11(a)(1) & 22.011(a)(2)(A). For purposes of punishment enhancement, the indictment also alleged, in three separate paragraphs, that appellant had three prior felony convictions. See generally Tex. PemCode § 12.42. Of particular importance, it later turned out, was the second enhancement paragraph, which read:

Before the commission of the offense[s] alleged above, on the 12TH day of AUGUST, A.D.1992, in GENERAL COURT-MARTIAL ORDER NUMBER 55, in FORT POLK, LOUISIANA, the Defendant was convicted of the offense of RAPE AN OFFENSE WHOSE ELEMENTS ARE SUBSTANTIALLY SIMILAR TO THE ELEMENTS OF THE OFFENSE OF SEXUAL ASSAULT UNDER SECTION 22.011 OF THE TEXAS PENAL CODE.[]

(All capitalization in original.)

On August 21, 2002, at a pretrial hearing, appellant pled, pursuant to a plea bargain, nolo contendere to Count I of the indictment. In accordance with the terms of the plea bargain, appellant also pled “true” to the second enhancement paragraph, and agreed to register as a sex offender and to have no further contact with the complainant. As its part of the plea bargain, the State agreed to abandon Count II of the indictment and to recommend a fíne of $1,000 and “a cap of 45 years” on appellant’s prison sentence. The State also agreed to abandon four misdemeanor prosecutions then pending against appellant.

The August 21, 2002, pretrial hearing proceeded, in relevant part, as follows:

The Court: Now, I understand that what he wants to do is, he wants to change his plea [of not guilty] to nolo contendere. Is that correct?
Defense Counsel: Yes, Your Honor.
The Court: No contest. Is that what you want to do, Mr. Garland?
Appellant: Yes, Your Honor, it is.
The Court: All right. Now, he is pleading to an enhanced count. That is the third — the third enhanced count on there?
Prosecutor # 1: No. Actually, Your Honor, we are proceeding on the — the rape, the second one.
The Court: The second?
Prosecutor # 1: Uh-huh.
The Court: He is pleading to Count Number II, right?
Prosecutor #1: He is pleading to Count I, but with the second enhancement.
Defense Counsel: Let me just make sure I understand. The way you are— you are presenting that is that the judge is going to make a finding that — that the enhancement paragraph is not sufficient, because how are we going to get out of the automatic life [sentence]? []
Prosecutor # 1: No. Just — -rather than using it for purposes of automatic life, it is just being used as a regular repeater paragraph. That makes it a first-degree felony as opposed to a second-degree felony.
Prosecutor # 2: The judge would have to make an affirmative finding that it is the same or similar in elements to the— to the prior.
Prosecutor # 1: In order for it to qualify for automatic life.
Defense Counsel: I am just concerned, if he — -if he pleads — I understand your thought process on that, but I don’t know if it is legally — if we can legally do it that way.
Prosecutor # 1: Well, it is — it is my understanding that as long as we are— the State intends to use it as just a prior felony conviction rather than under the auspices of the automatic life provision, that it just enhances it to a first-degree felony.
The Court: All right. Are we all agreed on that?
Defense Counsel: As long as everybody understands that, if he pleads to it, then, there is not—
The Court: It is a first.
Defense Counsel: —it is not—
The Court: It is a first—
Defense counsel: —it is just a first—
The Court: —first-degree felony.
Defense Counsel: —but it is not an automatic life—
The Court: All right.
Defense Counsel: —then I don’t have a problem with that.
The Court: Now, they have alleged that he is pleading to the second count of the enhancement. What is your — do you understand what the second count of the enhancement alleges?
Appellant: Yes, Your Honor.
The Court: Okay. Is that allegation true or untrue?
Appellant: Yes, I was convicted, Your Honor.
The Court: Okay. What you are charged with is a second-degree felony, and enhanced it becomes a first-degree felony. The punishment is a minimum of five years, a maximum of 99 years or life imprisonment. In addition, you can be fined not to exceed $10,000.
There is a state law that says that, whenever I take any kind of plea, I have to tell the person that is pleading the whole punishment range that is affixed to whatever you are pleading to.
The Court: All right. I am going to show, based upon the [stipulated] evidence that has been offered against you, that the proof is sufficient to find that you are guilty of this offense.
I am going to find you guilty of the offense on your plea. I am going to refer your case to the probation division for a presentence report. When I get the presentence report, I will decide what to do with setting the punishment on his case.

On September 26, 2002, the trial court, acting within the terms of the plea bargain, assessed appellant’s punishment at imprisonment for 25 years and no fine. The trial court also granted appellant an unqualified right to appeal. See Tex. R.App. Proc. 25.2.

On direct appeal, appellant brought a single point of error, under which he made two arguments in support of his request for a new trial. Appellant argued first that his 25-year prison sentence was “void” because “he was sentenced outside the mandatory ... punishment.” More specifically, appellant argued that, given his plea of nolo contendere to Count I of the indictment, which alleged a sexual assault, and given his plea of “true” to the second enhancement paragraph, which alleged a prior conviction for an out-of-state offense whose elements were substantially similar to sexual assault, the trial court was required by Texas Penal Code § 12.42(c)(2) to sentence him to imprisonment for life. See footnote one, supra. Appellant also argued that his “plea of ‘no contest’ was involuntary [because] he was erroneously admonished [with respect to the mandatory] punishment.”

The State argued in response that appellant’s 25-year prison sentence was not void because it was a lawful sentence for the second-degree felony, enhanced to a first-degree felony, to which he pled nolo contendere and of which he was found guilty. According to the State, Texas Penal Code § 12.42(c)(2) was inapplicable to this case because, at the August 21, 2002, pretrial hearing, “the State waiv[ed] and abandoned] that portion of the second enhancement paragraph that would have required proof of, and a finding by the trial court that, the rape [in Louisiana] constituted ‘an offense whose elements are substantially similar to the elements of the offense of sexual assault under section 22.011 of the Texas Penal Code.’” The State further argued that appellant’s plea of nolo contendiere was not involuntary because “[t]he trial court properly admonished [him on] the range of punishment for a first-degree felony after [he] and the State, with the approval of the court, entered the agreement that the State would not seek a finding on the second [enhancement] paragraph that the offense charged therein contained elements substantially similar to the elements of the charged primary offense.”

On May 26, 2004, the Fourth Court of Appeals, in an unpublished opinion, accepted appellant’s arguments in toto, sustained his point of error, and remanded the case to the trial court for further proceedings. Garland v. State, No. 04-02-00812-CR, 2004 WL 1159126 (Tex.App.-San Antonio 2004). “Defendant’s sentence of twenty-five years’ confinement,” the court of appeals explained, “was less than [the life sentence] required by section 12.42(c)(2),” and, “therefore, his sentence is void.” Id., slip op. at 2. “Our review of .the record,” the court continued, “also leads us to conclude defendant would not have pled nolo contendere if a life sentence was to be imposed. Therefore, the appropriate remedy is to return the parties to the positions occupied prior to the plea bargain agreement.” Id., slip op. at 3. Significantly, the court of appeals rejected the State’s interpretation of the record. According to the court of appeals, “[t]he prosecutor [at the August 21, 2002, pretrial hearing] did not explicitly or implicitly waive any portion of the second enhancement paragraph.” Id., slip op. at 2.

On November 17, 2004, we granted the State’s petition for discretionary review to determine whether the court of appeals erred. See Tex.R.App. Proc. 66.3(c). The State, in its brief to this Court, continues to argue, as it did below, that, “[a]though the enhancement provision to which [appellant] pleaded contained the allegation that he had previously been convicted [in Louisiana] of rape, ‘an offense whose elements are substantially similar to the elements of sexual assault under section 22.011’ of the Texas Penal Code, which would require an automatic life sentence if found true under Texas Penal Code Ann. § 12.42(c)(2) ..., the record is perfectly clear that the State, [appellant], and the trial court all agreed that that particular provision would not apply. The result being that the enhancement would be treated as a prior felony that would raise the punishment level to a first-degree [felony] but not an automatic life.”

We have recognized before that the State may, with the permission of the trial court, “dismiss, waive or abandon a portion of the indictment.” Ex parte Preston, 833 S.W.2d 515, 517 (Tex.Crim.App.1992). See generally G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 30.41 (2d ed.2001). After reviewing the record, we conclude that that is exactly what happened in this case. That is, at the August 21, 2002, pretrial hearing, the State abandoned, with the trial court’s permission, that portion of the indictment’s second enhancement paragraph that exposed appellant to the possibility of an automatic life sentence. The court reporter’s record of the hearing, quoted previously, makes it abundantly clear that everyone in the courtroom understood what the State was doing. Indeed, the record makes it abundantly clear that appellant would not have pled “true” to the second enhancement paragraph if the State had not abandoned the portion of that paragraph that exposed him to the possibility of an automatic life sentence.

In light of the State’s abandonment, appellant’s 25-year prison sentence was not unlawful. Furthermore, in light of the State’s abandonment, the trial court’s admonishment concerning the range of punishment was not incorrect, and, therefore, appellant’s plea was not involuntary.

We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

      . Texas Penal Code § 12.42(b) provides that, "[i]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.” Texas Penal Code § 12.32 provides, in turn, that punishment for a first-degree felony is imprisonment “for life or for any term of not more than 99 or less than 5 years" and a fine "not to exceed $10,000.” Finally, Texas Penal Code § 12.42(c)(2) provides, in relevant part, that "[a] defendant shall be punished by imprisonment ... for life if the defendant is convicted of [sexual assault] and the defendant has been previously convicted of an offense under the laws of another state containing elements that are substantially similar to the elements of [sexual assault].”

      . See footnote one, supra.

      . The State also argues that appellant “should be estopped from complaining that his 25-year sentence was void because he plea bargained for that sentence.” See Ex parte Williams, 65 S.W.3d 656, 658-660 (Tex.Crim.App.2001) (Keller, P.J., concurring) (one who accepts the benefits of a plea bargain should be estopped from challenging its validity). The State made no such estoppel argument in the court of appeals, however, so we will not consider it. See Smith v. State, 70 S.W.3d 848, 850 (Tex.Crim.App.2002); Monreal v. State, 947 S.W.2d 559, 564 n. 7 (Tex.Crim.App.1997); Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App.1991); G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 44.24 (2d ed.2001).


author: HERVEY, J.,

text:
    Randy Ethan HALPRIN, Appellant, v. The STATE of Texas.
    No. AP-74721.
    Court of Criminal Appeals of Texas.
    June 29, 2005.
    Rehearing Denied Sept. 14, 2005.

      George E. Ashford III, Dallas, for Appellant.
    Tammy Ardolf, Asst. DA, Dallas, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

Appellant and six other prison inmates (the “Texas Seven”) escaped from prison in December 2000. These prison escapees murdered a police officer during a robbery at an Oshman’s sporting goods store on Christmas Eve 2000. As a result of this incident, appellant was charged with capital murder. A jury convicted appellant of this offense, and the trial court sentenced appellant to death pursuant to the jury’s answers to the special issues submitted at the punishment phase. Appellant raises nineteen points of error. We affirm.

In point of error one, appellant asserts that the trial court improperly excluded mitigating evidence in violation of Article 37.071(f)(4), Tex.Code Gkim. PRoa, which requires that the jury be instructed that it “shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” In point of error two, appellant also asserts that the trial court improperly excluded this mitigating evidence in violation of the Eighth Amendment to the United States Constitution.

In these points of error, appellant claims that the trial court erroneously excluded mitigating evidence in the form of a document offered as defense exhibit , 39. Appellant argues that this document “gave weight and credence to part of [his] mitigation argument: that is, he was not the leader of the Texas Seven; he was not a principal in the decision to break out of prison; and, he was not a principal in the decision to robb [sic] Oshmans.”

The top of this document states, “TDCJ Connally Unit.” It ranks appellant the lowest of the Texas Seven in leadership qualities. The identity of the person who prepared the document is unknown. In relevant part, the document declares:

Ranking of Offenders by Leadership/Personality Characteristics
After conducting interviews with civilian workers, correctional officers, and several inmates who worked closely with the escapees, a consensus was developed of - which offender was the leader and which one may be the weakest. It was unanimous decision that RIVAS[] was the leader and the weakest was determined to be [APPELLANT]. The following are ranked in order from highest (leadership) to the lowest (follower).
7. [APPELLANT]-was quiet and never exhibited leadership qualities. Was consistently worried about whether his work was acceptable to the civilian workers. Very submissive characteristic. This worrisome attitude was seen to escalate a month before the escape. One civilian worker speculated whether [APPELLANT] was undergoing some type of depression.

The trial court sustained the prosecution’s hearsay objection to the document each time appellant offered it into evidence. For example, during the punishment phase of the trial, the trial court sustained the prosecution’s hearsay objection to the document when appellant offered it under the business records exception to the hearsay rule.

[DEFENSE]: Judge, out of the presence of the jury, I’ll make a record as to Defense Exhibit No. 39 that’s been admitted for record purposes at this point. We’ve talked about that quite a bit during the course of the trial and I just want to state for the record that Defense Exhibit 39 at the top says, it’s ranking of offenders by leadership slash personality characteristics. It says that “After conducting interviews with civilian workers, correctional workers, and several inmates that work closely with the escapees, a consensus was developed of which offender was the leader and which one may be the weakest” and talks about what the decision was. It ranks the offenders from the highest to the lowest, starting with Rivas as the highest and [appellant] as the lowest.
First of all, Your Honor, this document is a part of the discovery that the State gave to us. It has a distinctive number of 1550 on the bottom, which indicates what number of document it is that the State gave to us. This is not a document that was subpoenaed by the defense. It was given to us by the State.
Because it says that it’s a summary that was compiled after talking to several different people, civilian workers, correctional officers, and inmates, it’s not going to be the document of any one particular person. It’s going to be a TDC document.
Now, witness Moezygemba, who was a TDC civilian worker who was taken down in the escape, testified that he remembered they were asked to do this type of ranking. Also another TDC worker who was taken down in the escape, and that would be — that would be Mr. Burgess, also seemed to remember being asked that sort of information. The document clearly says “TDCJ Con-nally Unit” on the top of it.
Now, yesterday [the defense] tried to offer that exhibit through the witness who came from the Inspector General’s Office, Elizabeth Mullen. Ms. Mullen also testified that that appeared to be a TDCJ document. It says TDCJ Connally Unit on the top. Ms. Mullen said what they do, their job at the Inspector General’s Office, is to investigate all of these types of matters and compile documents, reports, and such that are related to matters such as the escape.
And she says, I just don’t recognize this one. Now, she also testified that, you know, she’s told by her general counsel not to come here and, you know, give anything to the defense that the defense may have subpoenaed until she talks to the State first.
Judge, one thing I did omit, Mr. S.O. Woods, a former TDCJ employee, said he went to the Inspector General’s Office, he reviewed the several documents that they had, the boxes of documents that he had, and he recalled seeing this document amongst those papers.
[TRIAL COURT]: [Defense counsel], I don’t believe that’s an issue. It’s a TDCJ document. No question about its authenticity. That’s not the issue. The issue is that the conclusions on the entire document are all from hearsay from unnamed sources. That’s the problem with the document.
[PROSECUTION]: We didn’t know who made it, either.
[TRIAL COURT]: You don’t know who the author is, you don’t know where the conclusions came from, you can’t go back and find out any of the source information that that ultimate opinion comes from.
So I have reviewed 89, I understand your objections. No question about its authenticity. It’s simply not admissible because of hearsay.
[DEFENSE]: Well, Judge, our objection would be — I mean, our premise would be that you do have some evidence from Moezygemba and Bender where the data came from, that it’s a business record of TDCJ, and that the proper sponsoring witness for that would be Ms. Mullen, except that she says I just don’t recognize this particular one.
So that puts us in the position of having to rely on the State for our sponsoring witness for the document, but having that sponsoring witness say, well, I just don’t recognize this particular one, even though Mr. Woods says that he saw it amongst those papers in the Inspector General’s Office.
[TRIAL COURT]: The record is clear as to the Court’s ruling. Sheriff, find us a jury.
[DEFENSE]: Judge, just so I’m clear, is the Court saying that that document offered through Ms. Mullen is objected to by the State as hearsay and, therefore, the Court is not admitting it as a business document made during the course and scope of the record keeping duties of TDC?
[TRIAL COURT]: It may be a business record, but it’s all hearsay.

We find that the trial court did not abuse its discretion to decide that the document did not meet the business records exception to the hearsay rule. There is no evidence showing who prepared the document or whether it is a record of regularly conducted activity. In addition, the record also reflects that appellant presented from other sources a significant amount of mitigating evidence that was cumulative of the mitigating evidence contained in the document. A TDCJ civilian employee (Moczygemba) testified that he would rank appellant’s intelligence “at the very bottom” of the Texas Seven. Another TDCJ civilian employee (Burgess) testified that appellant was not “a leader type.” Appellant also testified at length that he was a follower and not a leader and that his participation in the victim’s murder was minimal. Appellant’s counsel also argued appellant’s lack of intelligence and leadership qualities to the jury during closing jury arguments at the punishment phase. Under these circumstances, any error in excluding the document was harmless (even beyond a reasonable doubt). Cf. Leday v. State, 983 S.W.2d 713, 718 (Tex.Cr.App.1998) (overruling objection to evidence is not reversible error when other such evidence is admitted). Points of error one and two are overruled.

In points of error three through ten, fourteen and seventeen, appellant claims that the trial court erroneously denied his challenges for cause to ten venire-members during the voir dire process to select the primary jury panel. The record, however, reflects that appellant had one peremptory challenge remaining when he accepted the twelfth juror (Dalton).

[TRIAL COURT]: Back in open court. In the presence of [appellant], what says [appellant]?
[DEFENSE]: Judge, I need to put something on the record, if I may.
[Appellant], Mr. Ashford and I have advised you that we have burned our 15 strikes and the Court has granted us one additional strike. And we discussed with you that we can bum a strike, if you wish, on Mr. Dalton, or, if we do burn a strike for some particular reason, you can always ask the Court for an additional strike somewhere down the line.
There’s no guarantee the Court would give us a strike and we’ve discussed those issues with you; is that correct?
[APPELLANT]: Yes.
[DEFENSE]: In understanding those issues and understanding that you have one strike left, you have advised Mr. Ashford and myself that Mr. Dalton is acceptable as a juror to you; is that correct?
[APPELLANT]: That’s correct.
[DEFENSE]: You understand that some people might argue that by giving up one of your strikes, even though it’s an additional strike the Court has given us, that somehow you are waiving some error. But I have explained to you, have I not, that what the Court will look at is the twelve jurors that you have in the box to determine whether or not you have been harmed somehow, even if the Court has previously made and denied an erroneous charge by the defense that would be error, the Court or the Court of Appeals, Supreme Court of the United States, would look to see whether you were harmed by that error and in ascertaining that, look and see which twelve individuals you have in the box. And I have explained that to you?
[APPELLANT]: Yes, sir.
[DEFENSE]: And you understand there’s some trial strategy involved here in accepting jurors as well and you are aware of the trial strategy of burning strikes and some of the other matters that we have been engaged in in the last six weeks; is that correct?
[APPELLANT]: That’s correct.
[DEFENSE]: And understanding all of that, it’s your desire to accept Mr. Dalton; is that right?
[APPELLANT]: That’s correct.
[DEFENSE]: We accept Mr. Dalton as juror No. 12.

Appellant, therefore, suffered no harm from any error in the trial court’s denial of these ten challenges for cause. See Johnson v. State, 43 S.W.3d 1, 7 (Tex.Cr.App.2001) (to show harm from erroneous denial of defense challenge for cause, defendant must show, among other things, that he exhausted all of his peremptory challenges). Points of error three through ten, fourteen and seventeen are overruled.

In points of error eleven through thirteen, appellant claims that the trial court erroneously denied his challenges for cause to three veniremembers during the alternate juror selection process which was separate and distinct from the process to select the primary panel. See Article 33.011(a), Tex.Code CRim. PROC.; Article 35.15(d), Tex.Code CRim. Proc. Appellant, however, has not shown that any of the two alternate jurors (Hoyer and Railsbaek) participated in any of the jury deliberations in his case. Appellant, therefore, suffered no harm from any error in the trial court’s denial of these three challenges for cause. See Cooks v. State, 844 S.W.2d 697, 721-22 (Tex.Cr.App.), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993). Points of error eleven through thirteen are overruled.

In points of error fifteen, sixteen, eighteen and nineteen, appellant claims that the trial court allowed the prosecution to ask four veniremembers improper commitment questions during the process to select the primary jury panel. In point of error fifteen, appellant claims that the following was an improper commitment question from the prosecution to veniremember Russell.

Q. [PROSECUTION]: Let me give you some other examples of some people say it could be or could not be. If a person knows right from wrong, so they’re not insane, but, let’s say, they may have a mental illness, a mental birth defect, maybe they’re mentally retarded. There’s been a lot in the media lately about the execution of someone who is mentally retarded. And you can see how Special Issue No. 3 [the mitigating evidence special issue] could take that into account, that yeah, they’re guilty, they killed the police officer. Yeah, they’re probably going to be dangerous. They intended for someone to die. But their makeup, they’ve been that way since birth through no fault of their own. You can see the documentation if someone is mentally retarded. People say irregardless of those other decisions, that’s why we get to No. 3, that could be, maybe to some people, mitigating.
[DEFENSE]: Excuse me, Mr.
D’Amore. Your Honor, because of the legal nature of the Supreme Court rulings involving that recently, we object to that as an improper commitment question under Standifer [sic],
[TRIAL COURT]: Overruled.[]

The prosecution’s question did not attempt to bind the veniremember to resolve or refrain from resolving an issue (i.e., the mitigating evidence special issue) on the basis of one or more facts contained in the question. See Standefer v. State, 59 S.W.3d 177, 180 (Tex.Cr.App.2001) (question is a commitment question “if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question”). The totality of the voir dire record reflects that the prosecution explained that the veniremember should have an open mind and consider all of the evidence in answering the mitigating evidence special issue. This was not an improper commitment question. See Standefer, 59 S.W.3d at 180-82.

In point of error sixteen, appellant claims that the following was an improper commitment question from the prosecution to veniremember O’Brien.

Q. [PROSECUTION]: That by itself right there, if we just stop for a minute, I can take a gun out and shoot my partner here ten times and laugh about it and that’s murder. It’s not capital murder, but it’s an intentional murder. I could get anywhere from five years in the penitentiary at the low end to 99 years or life at the high end or anywhere in between. Okay? That’s for intentional murder. []

Even if this is a question, appellant did not object to it. He, therefore, failed to preserve any appellate claim that it was an improper commitment question. See Tex. R.App. PROC. 33.1(a).

Appellant also claims in point of error sixteen that the following were improper commitment questions from the prosecution to veniremember O’Brien.

Q. [PROSECUTION]: You know, it’s asked sometimes that you are telling me, Ms. O’Brien, that you could give somebody as little as five years in the penitentiary for intentional murder. See? That’s how it’s phrased. Most people think of murder they think of the example I gave you, shooting somebody horribly, a very vicious crime. Of course, it could be.
[DEFENSE]: Excuse me, Your Honor, but we’re going to object as to any specific example not contained in the indictment, not reflected by allegations contained in the indictment so as to qualify a juror as to the range of punishment. We will object to it, violation of Standi-fer [sic].
[TRIAL COURT]: Overruled.
Q. [PROSECUTION]: Different type of intentional murder could be the unplugging of a life support machine in the hospital of a family member out of love instead. Intentional murder, did it on purpose, knew they were going to die, but you did it out of love so that person wouldn’t be in pain.
[DEFENSE]: Again, Judge, we renew our objection in that regard.
[TRIAL COURT]: Overruled.

Assuming that appellant’s objections were sufficient to alert the trial court to a claim that the prosecution’s questions were improper commitment questions, we decide that the prosecution’s questions were not improper commitment questions. They did not attempt to bind the venire-member to resolve or refrain from resolving an issue (i.e., the minimum punishment for an intentional murder) on the basis of one or more facts contained in the questions. See Standefer, 59 S.W.3d at 180.

Appellant also claims in point of error sixteen that the following was an improper commitment question from the prosecution to veniremember O’Brien.

Q. [PROSECUTION]: Go down the street, kill a neighbor out in the front yard. Intentional murder, not self-defense, not an accident. Then you find out that neighbor gave drugs to that person’s child and killed him, drug dealer, that type of a situation. You see, it could encompass a wide variety of the different situations what intentional murder is.
I use those as examples not to commit you in any way, but to kind of have you see intentional murder can encompass a lot of different situations. Does that make sense?
A. [O’BRIEN]: Yes.[]

Appellant did not object to this question. He, therefore, failed to preserve any appellate claim that it was an improper commitment question. See Rule 33.1(a).

In point of error eighteen, appellant claims that the following were improper commitment questions from the prosecution to veniremember Hamblin.

Q. [PROSECUTION]: Now, of course, that, I think that wide range of punishment recognizes the wide range of circumstances that murder can be committed under. Maybe a situation where I turn to Mr. D’Amore, I don’t like his tie today, and I shoot him ten times in the head, and, you know, he falls down and, you know, I dance around all happy about it. It’s a brutal, heinous, intentional murder. There’s nothing really plus, it’s not a capital murder. You know, it could be something like that, that’s an intentional murder. Or it could be an aged spouse, okay, who pulls the life support plug—
[DEFENSE]: Excuse me, Mr. Wirskye. We will object, Your Honor. That’s clearly not something encompassed ■within the allegations contained in the indictment. It’s an improper example to try to qualify the juror, potential juror, on the minimum range of punishment. We also think it’s a violation of Standifer [sic], it’s a commitment question, so we kindly object.
[TRIAL COURT]: Be denied.
Q. Obviously, we can’t commit you to what you would do in certain instances. I just want to kind of give you some examples. A mercy killing, some people call it. You know, an aged spouse pulls the life support plug to put their longtime spouse out of misery. That would also be an intentional murder.
[DEFENSE]: We would also object, that certainly would also be aiding suicide. We’re going to object to that, but certainly it wouldn’t even be in the range of a murder offense, so we object once again that it’s an improper example to be given.
[TRIAL COURT]: Be denied.[]

Assuming that appellant’s objections were sufficient to alert the trial court to a claim that the prosecution’s questions were improper commitment questions, we decide that the prosecution’s questions were not improper commitment questions. They did not attempt to bind the venire-member to resolve or refrain from resolving an issue (i.e., the minimum punishment for an intentional murder) on the basis of one or more facts contained in the questions. See Standefer, 59 S.W.3d at 180.

In point of error nineteen, appellant claims that the following was an improper commitment question from the prosecution to veniremember McGinnis.

Q. [PROSECUTION]: You know, you could have a really heinous murder, just a regular murder, pull a gun out and Mil Mr. D’Amore because I don’t like his tie. You may want to give me life for that. And you could have a knowing or intentional murder. An elderly spouse pulls the plug on life support for a long-time spouse.
[DEFENSE]: We object to that example, Judge. It’s a violation of Standifer [sic] and it doesn’t qualify here anyway.
[TRIAL COURT]: Be overruled. Do you understand he’s just giving you examples, Mr. McGinnis?
A. [MCGINNIS]: I understand that.
[TRIAL COURT]: I figured you did. We can’t talk about the facts of this case, so we just give hypotheticals. Does that make sense to you.
A. Yes, sir.

The prosecution’s question did not attempt to bind the veniremember to resolve or refrain from resolving an issue (i.e., the minimum punishment for an intentional murder) on the basis of one or more facts contained in the question. See Standefer, 59 S.W.3d at 180. It was not an improper commitment question.

Finally, any error in the trial court permitting the prosecution to ask these four veniremembers these questions was harmless. Our review of the record indicates that none of these four venire-members sat on appellant’s jury because appellant exercised a peremptory challenge on each one of them, and that appellant had one peremptory challenge remaining after selection of the primary jury panel. Cf. Anson, 959 S.W.2d at 204. Points of error fifteen, sixteen, eighteen and nineteen are overruled.

The judgment of the trial court is affirmed.

      . It appears that this document was prepared just after the escape as an aid to law enforcement to apprehend the escapees.

      . Rivas was one of the Texas Seven escapees. He was also convicted of capital murder and sentenced to death for his role in the murder of the police officer during the robbery at the Oshman’s store. This Court affirmed this conviction and sentence on direct appeal See Rivas v. State, No. 74,143 (Tex.Cr.App. No. 74,143, delivered June 23, 2004) (not designated for publication).

      . Tex.R. Evid. 803(6) provides that “records of regularly conducted activity” are not excluded by the hearsay rule. Rule 803(6) defines “records of regularly conducted activity” as: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information, transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

      .This witness testified:
      Q. [DEFENSE]: If I asked you based on your opinion to rank [appellant] in terms of intelligence with all the rest of [the Texas Seven] I just asked you about, what would you say?
      A. [MOCZYGEMBA]: He was right at the very bottom.
      Q. Okay. And I’ll ask you again, did TDC ask you that type of information? Did they ask you to do that type of qualification?
      A. They basically asked us to give them their — how would you say, their physical and mental characteristics.
      Q. Okay. Did they use terms such as leadership?
      A. Oh, not really, not that I can recall.
      Q. But no doubt in your mind that Rivas was the leader?
      A. Yes, sir.
      Q. And those were — that was consistent with his intelligence and his character as you knew him?
      A. Yes, sir, that's correct.
      Q. And [appellant] you saw mopping up the floor?
      A. Yes, sir.

      . This witness testified:
      Q. [DEFENSE]: Okay. What is that opinion?
      A. [BURGESS]: Not very good. [Appellant] was — just in my opinion he was not a leader type, just that’s my opinion.

      . Appellant’s counsel argued:
      Who does [appellant] meet? He meets George Rivas. Now, there’s some indication by [the prosecution] somehow that he — and Mr. Rivas had gotten [appellant] and, you know, selected him somehow. You know what [appellant] is? He’s a follower. No leadership qualities. Everybody down at TDC has figured that out. Burgess said he’s dumb as a bag of rocks. Tell him what to do. And you look during the course of the scheme of the conduct. Is he one of the guys with the shank? No. He’s the guy with the mop. What’s he doing? He’s not even engaging in any independent thought through the course of the escape. He’s waiting until he’s being told to do something and then he does it. And that comes from their witnesses.

      . Appellant does not state in his brief whether he challenged these veniremembers for cause, or whether he exercised peremptory challenges on them, or whether any of them actually sat on his jury. Cf. Anson v. State, 959 S.W.2d 203, 204 (Tex.Cr.App.1997), cert. dism'd, 525 U.S. 924, 119 S.Ct. 290, 142 L.Ed.2d 241 (1998) (discussing harm analysis to apply to trial court's refusal to allow proper questions to individual veniremembers).

      . After the trial court overruled appellant’s objection, the following exchange occurred.
      Q. [PROSECUTION]: Some people might view it as mitigating. That's the only thing. I’m not trying to commit you one way or the other. I’m just asking do you see how that could play a part in No. 3.
      A. [RUSSELL]: Yes.
      Q. The bottom line question with Special Issue No. 3 is that you have to have an open mind to it. You have to be able to look at the evidence and see if there's something mitigating there, and then is it sufficient in your mind to give them a life sentence, whether it’s because they’re mentally retarded or something else about them, some reason why the crime happened.
      I mean, again, we can sit here all day long and talk about mitigating reasons. But the bottom line is, even if you can’t think of something today, that you’re not closing it off, you’re not closing off giving somebody a life sentence.
      So, that's what I need to know, and I think everyone here needs to know whether or not you are the type of person that can keep an open mind on No. 3, even though you've found him guilty of killing a police officer, even though you said he's probably going to be dangerous. Because that’s the context in how this question is asked. The law says you must, because the only way you get to No. 3, you made those decisions. So, when you get there, you still have to have an open mind to a life sentence, depending on the facts of the case.

      . The voir dire record reflects that immediately after this the prosecution continued to explain:
      Q. [PROSECUTION]: I guess you could say, when you find someone guilty of intentional murder, there may be, what, 94, 95, 96, separate verdicts you could do, anywhere from five years up to 99 years or life. See how that works?
      A. [O’BRIEN]: Uh-huh.
      Q. What the law says about that is that we can’t commit you today on what you’ll do in any particular situation, but what we must know, and both sides are entitled to know, is that your mind would be open to that full range of punishment, depending on the facts. Maybe depending on as to why I killed him or as a different situation does a person, the motive of why it happened, or the reason why it happened. It's not legally justified, but maybe there’s some other reason why it happened.
      All you have to be able to do to satisfy the law is to say you’ll have an open mind, wait to hear the evidence, and then decide what the proper punishment is. And that makes sense. You don't want to commit to something before you know the full story. Does that make sense?
      A. Sure.
      Q. Do you think you could do that?
      A. Yes.

      . The voir dire record reflects that immediately after this the prosecution continued to explain:
      Q. [PROSECUTION]: So, that’s why the law says you have to wait and hear the evidence, hear about the person, and then decide what the proper punishment is. My question to you in an intentional murder case if you are a juror, if you find someone guilly of intentional murder, could you then decide what the appropriate punishment is with your mind open from five years to 99 years or life, just depending on the facts?
      A. [O'BRIEN]: I think so.
      Q. So you could, although you don’t have to think of a situation today, your mind is open to giving someone the minimum five years for an intentional murder, depending on the facts and if you thought it was the right thing to do?
      A. You mean, if I thought the sentence was the right thing to do?
      Q. Right.
      A. Yes.

      . The voir dire record reflects that immediately after this the prosecution continued to explain:
      Q. [PROSECUTION]: It encompasses a wide range. My next door neighbor gives my little daughter drugs, and I get mad about it, and I go out in the front yard and shoot him dead. That’s intentional murder. The jury may want to find that pretty mitigating, you know.
      But, anyway, the bottom line is to all of this, as a potential juror you have to be able to keep an open mind to that full range of punishment, five all the way up to 99 years or life.
      Do you think that you would have a hesitation in keeping that open mind to that entire range of punishment.
      A. [HAMBLIN]: No, sir..