author: Justice RODRIGUEZ.

text:
    Rogelio MORENO DENOSO, Appellant, v. The STATE of Texas, Appellee.
    No. 13-99-809-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Feb. 3, 2005.

      Mark Alexander, McAllen, for Appellant.
    Diane Palmiotti, Theodore C. Hake, Asst. Criminal Dist. Atty’s, Edinburg, for State.
    Before Justices HINOJOSA, YÁÑEZ, and RODRIGUEZ,
   OPINION

Opinion by

Justice RODRIGUEZ.

Appellant, Rogelio Moreno Denoso, was indicted on one count of intentionally and knowingly causing the death of David Cha-pa Quintero by shooting him with a firearm. Appellant entered a plea of not guilty. Tried to a jury, the charge included instructions on party and principal theories of criminal responsibility and on the affirmative defense of duress. The jury found appellant guilty of murder and assessed punishment at life imprisonment.

The trial court has certified that this case “is not a plea bargain case, and the defendant has the right of appeal.” See Tex.R.App. P. 25.2(a)(2). By eleven points of error, appellant complains of the following: (1) the evidence is legally and factually insufficient to support the verdict; (2) the trial court erred in admitting or excluding certain evidence including, among other things, a defense witness’s testimony, appellant’s statement, the autopsy report and photographs, and extraneous offense testimony; and (3) the prosecutor engaged in misconduct. We affirm the trial court’s judgment.

I. Facts

Chapa was last seen leaving a local “hang out” with appellant. According to appellant, four of their friends asked appellant to pick up Chapa and go for a ride. The friends directed appellant to drive to the location where Chapa’s body was later found. There the friends allegedly killed Chapa, shooting him several times. Appellant admitted discussing killing Chapa with the others, going to the murder site earlier in the day, driving Chapa to that site, being present when the murder occurred, and watching what was happening. Appellant stated, however, he did not participate in the actual shooting. His friends ordered him to help dispose of the body. At trial, appellant asserted the defense of duress.

Chapa’s badly burnt and decomposed body was found in a remote area of Hidal-go County, Texas. The Hidalgo County Sheriff’s Office processed the scene and recovered several shell casings, some of which matched shell casings found at a shooting involving appellant and Chapa that occurred three months before Chapa’s murder. The cause of death was determined to be from multiple shotgun wounds and a gun shot to the head.

II. Sufficiency of the Evidence to Support Verdict on Party Theory

By his first point of error, appellant contends the evidence is legally and factually insufficient for a rational juror to find he was a party to the murder. Arguing that the State’s theory of the case was not that appellant directly caused Chapa’s death by shooting him, but that he assisted others in killing Chapa, appellant challenges only the sufficiency of the evidence as to the State’s party theory.

The State, however, presented evidence on both principal and party theories. The jury was charged, without objection, on both theories, and rendered a general verdict of guilty. Because appellant has chosen not to challenge the sufficiency of the evidence on the principal theory, he has waived any argument he might have had on appeal. See Tex.R.App. P. 38.1(e) (brief must state concisely all issues presented for review); see also id. 38.1(h) (brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). Therefore, we will uphold the guilty verdict based on the State’s principal theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992); Edwards v. State, 106 S.W.3d 833, 839 (Tex.App.-Dallas 2003, pet. ref'd) (if evidence of guilt is sufficient either as principal or as party, appellate court must affirm jury’s verdict).

Nonetheless, even were we to agree with appellant that the State asserted only a party theory at trial, a rational jury could have concluded that appellant was a party to the murder. A person commits the offense of murder if he intentionally or knowingly causes the death of another person. See Tex. Pen.Code Ann. § 19.02 (Vernon 2003). A person is criminally responsible as a party to an offense if he acts with intent to promote, assist, solicit, direct, aid, or attempts to aid in the commission of an offense. See id. § 7.02(a)(2). Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom, v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994). The jury may look to events occurring before, during, and after the commission of the offense in determining whether the accused participated as a party. Id. The jury may also rely on actions of the defendant that show an understanding and a common design to do the prohibited act. Id.

A. Legal Sufficiency

In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001).

Considering all of the evidence in the record in the light most favorable to the verdict, the record established that appellant met with three other men and discussed killing Chapa. Appellant traveled with the others to the murder site the afternoon before the crime, brought appellant to the predetermined site, was present during the murder, helped dispose of Cha-pa’s body, concealed the car after the murder, and gathered with the others at his house after the murder to continue drinking until the early morning hours. Appellant’s actions before, during, and after the commission of the offense show an understanding and a common design to do the prohibited act, to intentionally or knowingly cause Chapa’s death. Ransom,, 920 S.W.2d at 302. Thus, we conclude the evidence is legally sufficient to establish that appellant is criminally responsible as a party to this offense.

B. Factual Sufficiency

Evidence is factually insufficient only when the evidence as to an element is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). To review the factual sufficiency of the evidence, the appellate court must view the evidence in a neutral light. Id.

Appellant testified that he did not shoot Chapa. He also testified as to his affirmative defense of duress. However, reviewing the evidence in a neutral light, it is clear that the evidence of intent was not so obviously weak as to undermine confidence in the jury’s verdict or greatly outweighed by contrary proof. Id. Accordingly, we conclude the evidence is also factually sufficient to support the verdict under the party theory.

Appellant’s first point of error is overruled.

III.Extraneous Offense

Appellant contends in his second point of error that the trial court erred in allowing the State to introduce extraneous offenses into evidence. The offenses appellant complains of include an attempted murder, prior killings, and other criminal activities. Appellant refers this Court to testimony' provided by Theresa Marie Garza, wife of the victim. She testified about a July 1997 shooting. She also testified that she heard appellant talking about robbing, kidnapping and torturing people. However, the record shows that appellant never objected to this evidence on grounds that it was impermissible extraneous offense evidence. During hearings before the trial court, defense counsel objected that (1) the attempted murder evidence was the subject of another indictment, and (2) testimony about appellant’s bragging was hearsay. After overruling defense counsel’s hearsay objection, the trial court asked counsel if that was going to be his only objection. Counsel responded, “That [is the only objection] I can think of now, Judge.” No defense objections were made when Garza subsequently testified about these topics before the jury. Because appellant’s objections to the trial court do not comport with his complaint on appeal, we overrule appellant’s second point of error. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003); see also Tex.R.App. P. 33.1(a)(1)(A) (as prerequisite to presenting complaint for appellate review, record must show complaint was made to trial court by timely request, objection, or motion that stated grounds for ruling sought).

IV.Witness Statements

By his third point of error, appellant contends the trial court erred in allowing into evidence the content of statements of witnesses who did not testify. Citing Schaffer v. State, 777 S.W.2d 111 (Tex.Crim.App.1989), appellant complains that the trial court erred in admitting this evidence because it was “backdoor hearsay.” Id. at 113. In this case, however, the record does not show that appellant objected to the complained-of testimony as hearsay. See Tex.R.App. P. 33.1(a)(1)(A). Thus, appellant waived error, if any, related to the admission of testimony regarding the statements. See id. We overrule appellant’s third point of error.

V.Appellant’s Written Statement

By his fourth point, appellant contends the trial court erred in admitting his written statement. He argues that the trial court should have suppressed his statement because it was not freely made and was based on a promise not to prosecute his wife.

“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion ...” Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In reviewing the trial court’s ruling on a motion to suppress a statement based on a claim the statement was involuntary, we give almost total deference to the trial court’s determination of historical facts, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1977); Villarreal v. State, 61 S.W.3d 673, 678 (Tex.App.-Corpus Christi 2001, pet. refd). This Court affords the same amount of deference to the trial court’s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Villarreal, 61 S.W.3d at 678. However, questions of law and mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Villarreal, 61 S.W.3d at 678. We will sustain the trial court’s ruling on a motion to suppress if it is correct on any theory of the law applicable to the case. Villarreal, 61 S.W.3d at 678.

Additionally, to the extent appellant is making a federal constitutional claim,

[s]ubstantive constitutional law prohibits the government from using an involuntary confession against an accused with the test for voluntariness being whether the confession is the product “of an essentially free and unconstrained choice by its maker.” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995) (statement is involuntary “only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker”).

State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Crim.App.1999).

In accordance with Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), on April 13, 1999, the trial court conducted a pre-trial hearing to determine the voluntariness of appellant’s statement. See Jackson, 378 U.S. at 380, 84 S.Ct. 1774; Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp.2004-05); see also Lopez v. State, 384 S.W.2d 345, 348 (Tex.Crim.App.1964). At a Jackson v. Denno.hearing, the trial court is the trier of fact and the judge of the credibility of the witnesses. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999); Miniel v. State, 831 S.W.2d 310, 315 (Tex.Crim.App.1992).

Following the hearing, the trial court found the statement was made voluntarily and, pursuant to article 38.22, section 6, of the code of criminal procedure, entered an order on May 21, 1999, containing its findings of fact and conclusions of law. See Tex.Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 1979). At the request of this Court, the trial court entered a second order on December 9, 2002.

According to the trial court’s findings and our review of the record, Hidalgo County Sheriff Investigator Esteban Caro testified he took a written statement from appellant after his arrest. Caro testified that appellant was provided with and understood his Miranda warnings, see Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 1979), and that appellant was not coerced or threatened in any way and was promised nothing for his statement. He explained that before signing the statement, appellant made changes to it. Again at trial, Caro testified he did not make any direct or indirect promises to appellant in exchange for the statement. He denied using appellant’s wife as leverage.

Sonia Safinas, a secretary at the Hidalgo County Sheriffs office, testified that she observed appellant signing his statement. Safinas testified appellant was provided Miranda warnings in Spanish. To her knowledge, appellant had not been threatened or promised anything in exchange for signing the statement.

At the suppression hearing and at trial, appellant testified he signed the statement because Caro told him that things would go well for him and that he would let his wife go as long as appellant signed the statement. He denied being provided Miranda warnings, although initialed warnings appear on the face of his statement. Appellant claimed that his statement was placed in the waste paper basket and that he was given another statement to sign, a statement containing things he did not say.

Appellant’s contention regarding the vol-untariness of his statement depends upon facts that were resolved by the trial court against appellant’s position. After reviewing the record, we find that the evidence is sufficient to support the trial court’s factual rendition. Although appellant introduced conflicting evidence, the trial court could have found that evidence to not be credible. See Lamb v. State, 680 S.W.2d 11,15 (Tex.Crim.App.1984). Giving almost total deference to a trial court’s resolution of the historical facts, see Guzman, 955 S.W.2d at 89, we conclude the trial court correctly ruled that appellant’s written statement was made voluntarily and that it was properly admitted into evidence. Appellant’s fourth point of error is overruled.

VI. Testimony of Defense Witness

In his fifth point of error, appellant complains that the trial court erred in denying his witness, Isauro Garcia, the opportunity to testify regarding an alleged instance where Chapa, the deceased, attacked the witness with a knife. Garcia, however, did testify about a separate crime allegedly committed by the victim in this case. Garcia testified that Chapa assaulted him with a knife, demanded his wallet and took his watch. Defense counsel then asked Garcia to describe the knife used in the alleged assault. The State objected to this question on the basis of relevancy, and the trial court sustained the objection.

Appellant contends that excluded evidence regarding the alleged attack was relevant to the credibility of the witnesses and to the nature of the relationship between the deceased and appellant. In order to preserve error, however, appellant must offer the evidence and obtain a ruling on the offer of proof. Tex.R.App. P. 33.2; Tex.R. Evid. 103(a)(2). Both the offer of the evidence and the adverse ruling of the trial court must appear in the record. The substance of the excluded evidence must be made known to the court by an offer as soon as practicable, but before the court’s charge is read to the jury. Tex.R. Evid. 103(b).

We have reviewed the record and find that appellant did not offer the evidence and obtain the trial court’s ruling on his offer of proof. Neither does the record show the substance of the testimony from the context within which the questions were asked. See id. at rule 103(a)(1); see also In re N.R.C., 94 S.W.3d 799, 806 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (offer of proof may be made by counsel who should reasonably and specifically summarize evidence offered and state relevance unless already apparent). An appellate court cannot decide whether evidence is improperly excluded unless the evidence is included in the record for review. McInnes v. Yamaha Motor Corp., 673 S.W.2d 185, 187 (Tex.1984). Accordingly, we conclude appellant has not preserved error for review, and we overrule his fifth point of error.

VII. Autopsy Photographs

By point of error six, appellant contends the trial court erred in admitting autopsy photographs of the victim’s burnt, mutilated and decomposed body. Appellant complains that the photographs were prejudicial and that they were duplicative of witness testimony and the autopsy report and, thus, had little probative value. See Tex.R. Evid. 403.

The admissibility of photographs over a challenge is within the sound discretion of the trial court. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App.1998); Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex.Crim.App.1990). The trial court’s decision will be reversed only if it was “outside the zone of reasonable disagreement.” Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App.1992); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (op. on rehr’g).

Rule of evidence 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. We employ the following four-prong test in reviewing a trial court’s evidentiary ruling under rule 403:(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Erazo u State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004); Montgomery, 810 S.W.2d at 389-90. In the context of the admission of photographs, we also consider the following factors: (1) the number of photographs; (2) their size; (3) whether they are in color or black and white; (4) whether they are gruesome; (5) whether the body depicted is clothed or naked; and (6) whether the body has been altered by autopsy. Erazo, 144 S.W.3d at 489.

A photograph should add something that is relevant, legitimate, and logical to the testimony that accompanies it and that assists the jury in its decision — making duties. Sometimes this will, incidentally, include elements that are emotional and prejudicial. Our case law is clear on this point: If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects.

Id. at 491-92.

In this case, the trial court admitted thirty-one photographs as State Exhibits 109-124, 126, 128-130, 132-133, 136-140, 142, and 145-147. The four-by-six-inch color autopsy and post-autopsy photographs are of the decedent’s body. They were admitted into evidence in conjunction with the testimony of Investigator Joel Castro, the identification technician with the Hidalgo County Sheriff’s Department who observed and photographed the autopsy. - They were introduced to show the extent of the victim’s wounds and to illustrate the cause of death. See Izaguirre v. State, 695 S.W.2d 224, 226 (Tex.App.-Corpus Christi 1985, no pet.). Some photographs show external gunshot wounds on the victim’s body, and some depict internal views of the victim’s chest, brain and organs. Some show views of the victim’s body from different distances and angles. The admitted photographs are gruesome and depict the victim’s burned and markedly decomposed body, the location and size of the external gunshot wounds, the exposed brain, other exposed organs, and the victim’s open chest cavity.

Under Erazo’s first prong, the probative value of the evidence, we note that photographs that prove death have probative value. Juhasz v. State, 827 S.W.2d 397, 402 (Tex.App.-Corpus Christi 1992, pet. ref d). Probative value is established if the photograph is needed to support the observations and conclusions of pathologists, or to otherwise corroborate evidence presented at trial. Lewis v. State, 505 S.W.2d 603, 604 (Tex.Crim.App.1974). Moreover, post-autopsy photographs, similar to those in this case, have been held admissible for the purpose of aiding, the jury in understanding the victim’s injuries and cause of death. See, e.g., Drew v. State, 76 S.W.3d 436, 453 n. 4 (Tex.App.-Houston [14th Dist.] 2002, pet. ref d) (discussing cases allowing admission of post-autopsy photographs).

In this case, the autopsy and post-autopsy photographs aided Invéstigator Castro in explaining the victim’s injuries and the cause of death. The photographs assisted the jury in visualizing the wounds suffered by the victim for whose death the'defendant was on trial. They depicted the gunshot wounds on the burned, decomposed body of the man, and were undoubtedly disturbing to the jurors. Nonetheless, we conclude the photographs had probative value in that they added something logical and relevant that made the photographs more probative than prejudicial. See Erazo, 144 S.W.3d at 491-92. As a result, this first factor weighs strongly in favor of admissibility.

In determining the second factor, we look at the photographs’ potential to impress the jury in some irrational, yet indelible way. Id. at 489. “[I]f a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury.” Id. (quoting Martin v. State, 475 S.W.2d 265, 267 (Tex.Crim.App.1972)). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App.2002); Rojas, 986 S.W.2d at 249. The main concern in these cases is that the jury might attribute certain injuries caused by the autopsy to the appellant, which would unfairly prejudice the appellant’s case. See Rojas, 986 S.W.2d at 249. Changes rendered by the autopsy process are nonetheless of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant. Hayes, 85 S.W.3d at 816 (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App.1997)); Newbury v. State, 135 S.W.3d 22, 43-44 (Tex.Crim.App.2004); Rojas, 986 S.W.2d at 249. Furthermore, as long as the post-autopsy photographs aid the jury in understanding the injury and do not emphasize mutilation caused by the autopsy, the photographs are admissible. Todd v. State, 911 S.W.2d 807, 819 (Tex.App.-El Paso 1995, no pet.).

The autopsy and post-autopsy photographs in this case show the nature and the manner of the victim’s death. We cannot conclude that the images in the photographs appeal only to the jury’s emotional side and encourage the jurors to make a decision on an emotional basis, and not on the basis of the other relevant evidence introduced at trial. See Erazo, 144 S.W.3d at 491-92. This factor weighs in favor of admissibility.

The third factor, the time needed to develop the evidence, also weighs in favor of admissibility. See id. Here, the State took little time before the jury to lay the foundation for the photographs and introduce them into evidence. The State introduced the photographs during Investigator Castro’s testimony as demonstrative evidence to assist visually in the witness’s explanation of the injuries and the manner of his death. Little time was taken to develop the evidence, relative to the length of the trial. See Horton v. State, 986 S.W.2d 297, 303 (Tex.App.-Waco 1999, no pet.) (holding eighteen pages of 332 pages of evidence did not significantly divert jury’s attention from central issue).

Finally, in analyzing the fourth factor, the State’s need for the evidence, we ask, “Does the proponent have other available evidence to establish the fact of consequence the photograph is relevant to show?” Erazo, 144 S.W.3d at 495. If so, we then ask, “How strong is that other evidence, and is the fact of consequence related to an issue that is in dispute?” Id. at 495-96.

Regarding the first and second questions, the State offered the autopsy and post-autopsy photographs to show the injuries and the manner or method of the victim’s death. The burden rested with the State to prove all the elements of the crime. The strength of the other available evidence to establish the manner of death, including Investigator Castro’s testimony, the death certificate and the autopsy report, was not as strong without the photographs. However, the facts of consequence the photographs were admitted to show were not in issue. Therefore, based on the answers to the questions, we are led to the conclusion that the fourth factor weighs slightly in favor of admissibility.

Accordingly, we conclude, from a thorough analysis of the factors, that the photographs of the victim were more probative than prejudicial. The court did not abuse its discretion in admitting the autopsy and post-autopsy photographs; its decision to admit the photographs was not outside the zone of reasonable disagreement. See Narvaiz, 840 S.W.2d at 429. Moreover, even had the trial court erred in admitting any of the photographs, a conviction will not be reversed “merely because the jury was exposed to numerous admittedly gruesome pictures.” Drew, 76 S.W.3d at 453 (quoting Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991)). The appropriate standard of harm found in appellate rule 44.2(b) states that “any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). “A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). After examining the record, this Court has fair assurance that error, if any, did not influence the jury at either stage of trial, or had but a slight effect. See id. The admission of the photographs did not affect appellant’s substantial rights. See Tex.R.App. P. 44.2(b); Drew, 76 S.W.3d at 453. We overrule appellant’s sixth point of error.

VIII. Autopsy Report

By his seventh point of error, appellant complains that the trial court erred in admitting the autopsy report. Generally, autopsy reports are admissible pursuant to the public record and business record exceptions to the hearsay rule. See Tex.R. Evid. 803(6); Tex.R. Evid. 803(8); Butler v. State, 872 S.W.2d 227, 238 (Tex.Crim.App.1994); Garcia v. State, 868 S.W.2d 337, 338 (Tex.Crim.App.1993). An autopsy report is provided by a medical examiner who holds a public office, see Tex.Code Crim. Proc. Ann. art. 49.25, § 1 (Vernon Supp. 2004-2005), and who has duties related to the preparation and filing of a report stating the cause of death, duties imposed by law. Id. at art. 49, §§ 6, 9 and 11; Butler, 872 S.W.2d at 237-38 (citing Tex.R. Evid. 803(8)(B)); Garcia, 868 S.W.2d at 340-42. Moreover, the autopsy report is subject to required public disclosure. Tex. Code Grim. Proc. Ann. art. 49.25, § 11 (Vernon Supp.2004-2005).

A. Law Enforcement Exclusion

Appellant does not challenge the general proposition that an autopsy report may be admissible as a public record. He does, however, contend the exclusion set out in rule of evidence 803(8)(B) applies because the forensic pathologist who prepared the report falls into the category of “other law enforcement personnel.” See Tex.R. Evid. 803(8)(B). Rule 803(8)(B) provides, in relevant part, that public ree-ords and reports include “reports ... setting forth ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police offices and other law enforcement personnel. ...” Id.

In Cruz v. State, 827 S.W.2d 83, 84-86 (Tex.App.-Corpus Christi 1992, no pet.), without the benefit of the opinion on rehearing in Cole v. State, 839 S.W.2d 798 (Tex.Crim.App.1992) (opinion on rehearing), this Court concluded that an autopsy report was inadmissible because medical examiners are “law enforcement personnel.” See Cruz, 827 S.W.2d at 86. Subsequently, however, the Texas Court of Criminal Appeals applied the two-prong test set out in Cole’s opinion on rehearing and held “as a general rule, medical examiners are not considered ‘other law enforcement personnel’ under Rule 803(8)(B) as far as their duties relate to the preparation of autopsy reports.” Garcia, 868 S.W.2d at 342.

Likewise, applying the Cole test, we conclude that the autopsy report in this case was prepared by one who is not considered “other law enforcement personnel” under rule 803(8)(B). See id. Even though autopsy reports are partially subjective, they are generally prepared by officials with no motive to fabricate the results of the reports, and as a general rule, a medical examiner’s office is not such a uniquely litigious and prosecution-oriented environment as to create an adversarial context. See id. Appellant only generally complains that the exclusion applies because the one who prepared the autopsy report was a law enforcement officer. He does not complain, and the record does not support, that the autopsy report was not an objective, routine, scientific determination of an unambiguous factual nature prepared by one with an inherent motivation to distort the results, or that the report was prepared by an official with a motive to fabricate the result. See id. Accordingly, we conclude the examiner in this case was not “other law enforcement personnel” under rule 803(8)(B) as far as his duties related to the preparation of the autopsy report. Because we conclude the exclusion found in rule 803(8)(B) does not apply, the autopsy report in this case was admissible under the public records exception to the hearsay rule. See Butler, 872 S.W.2d at 238.

B. Confrontation Rights

We next turn to appellant’s argument that the autopsy report was inadmissible under the confrontation clause because the pathologist who prepared the report did not, and in fact could not, testify at trial because he had died. We review the trial court’s ruling de novo in deciding this constitutional issue. Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Wall v. State, 143 S.W.3d 846, 849 (Tex.App.-Corpus Christi 2004, pet. filed).

The United States Supreme Court recently set out the test for determining the admissibility of evidence subject to a confrontation challenge. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). The threshold question is whether the autopsy report was testimonial or non-testimonial in nature. See id. at 1374; Woods v. State, 152 S.W.3d 105 (Tex.Crim.App., 2004); Wall, 143 S.W.3d at 850; Brooks v. State, 132 S.W.3d 702, 705 (Tex.App.-Dallas 2004, pet. filed). “Prior to the Supreme Court’s decision in Crawford, hearsay statements were admissible for purposes of the Confrontation Clause if they possessed adequate ‘indicia of reliability.’ ” Woods, at 112 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). In Crawford, however, the Supreme Court drew a distinction between testimonial and non-testimonial statements. Id. The admission of testimonial hearsay violates the Sixth Amendment unless the declarant is unavailable to testify, and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 124 S.Ct. at 1374; Wall, 143 S.W.3d at 850-51. While declining to spell out a comprehensive definition of testimonial statements, the Supreme Court stated that testimonial hearsay “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 124 S.Ct. at 1374; Woods, at 112. “[W]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: Confrontation.” Crawford, 124 S.Ct. at 1374.

In Wall, this Court held that the admission of a statement given in response to investigative questioning by a deputy — testimonial hearsay — violated the appellant’s right to confrontation under the Sixth Amendment. Wall, 143 S.W.3d at 851. Compare Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (co-defendant’s videotaped statement given voluntarily to police qualifies as testimonial statement as matter of law); Samarron v. State, 150 S.W.3d 701, 705-08 (Tex.App.-San Antonio, pet. filed) (witness’s formal, signed, written statement given after being questioned by detective at police station held testimonial); Brooks, 132 S.W.3d at 705 (non-testifying co-defendant’s written custodial statement determined testimonial in nature); Lee v. State, 143 S.W.3d 565, 570 (Tex.App.-Dallas 2004, no pet.) (co-defendant’s out-of-court statement made in response to questions of officer during roadside stop after appellant had been arrested held testimonial); with Woods, at 112 (held casual remarks spontaneously made to acquaintances non-testimonial); Wiggins v. State, 152 S.W.3d 656 (Tex.App.-Texarkana, 2004, pet. filed) (designated for publication) (co-conspirator’s statements made in furtherance of conspiracy non-testimonial); Wilson v. State, 151 S.W.3d 694 (Tex.App.Fort Worth, 2004, pet. filed) (designated for publication) (witness’s statement not testimonial, more in nature of inquiry initiated by witness); Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. refd) (interview of witness by police officer at hospital, shortly after assault, not interrogation; not testimonial hearsay).

In the present case, a certified copy of the autopsy report was admitted into evidence. The report set forth matters observed pursuant to a duty imposed by law. See Butler, 872 S.W.2d at 237-38 (citing Tex.R. Evid 803(8)(B)). The report revealed that the body was found in an advanced state of decomposition apparently partially burned by fire. It approximated the post-mortem interval at one to two weeks. The report contained observations about the victim’s body, hair, and teeth. It determined the length and approximate weight of the body and the condition of various body parts. The report also contained observations about tattoos and articles of partially burned clothing found on the body. The report set out the location and the nature of injuries. It also determined the cause of death as,

[mjultiple shotgun wounds and gunshot wound to the head[.] Shotgun wound to the back of the head and neck with brain injury and multiple fractures secondary to the explosive force of the pellet load[.] Gunshot wound to the left side of the head with brain injury and multiple fractures of crania vault and base secondary to explosive force of the bullet[.] Shotgun wound to right side of the chest with injury to the right lung.

Based on our review, the autopsy report in this case does not fall within the categories of testimonial evidence described in Crawford. It is not prior testimony at a preliminary hearing, before a grand jury, or at a former trial. Crawford, 124 S.Ct. at 1374. It is not a statement given in response to police interrogations. See id. Because the autopsy report was non-testimonial in nature, the new rule articulated in Crawford is not applicable in this case. See Woods, at 112.

Moreover, even if the introduction of the autopsy report without the forensic pathologist’s testimony was error, the error would be harmless. Tex.R.App. P. 44.2(a). The evidence presented by the State, even without the report, was sufficient upon which to base a finding that appellant was guilty. If the admission of the report violated either the rules of evidence or the confrontation clause, this Court is satisfied beyond a reasonable doubt that it did not contribute to the conviction or punishment. See id. We overrule appellant’s seventh point of error.

IX.State’s Efforts to Subpoena Certain Witnesses

By his eighth point of error, appellant appears to contend that the trial court erred in allowing Raul Gonzalez, a criminal investigator with the Mission Police Department, to testify regarding his service of subpoenas on Eduardo Barbosa and Monica Maria Contreras and his attempted service on Humberto Villanueva. Appellant argues that a false impression was created when the trial court allowed the State to discuss the failure of witnesses to appear and then refused to allow the defense “to show lack of good faith by the State when [the State] allegedly knew and let one of its witnesses go to Mexico.” However, appellant does not provide record references to evidence he claims should have been excluded. See Tex. R.App. P. 38.1(h). Appellant only cites portions of a hearing outside the jury’s presence where the trial court and counsel discussed Gonzalez’s testimony. Appellant cites neither to Gonzalez’s testimony nor to exhibits. Moreover, appellant does not cite authority for the proposition that the trial court was required to exclude this evidence. See id.; Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000). Appellant’s eighth point of error is overruled.

X.Failure to Produce Reports or Admit Production of Reports

By his ninth point of error, appellant appears to be complaining about either an error on the part of the trial court in failing to order the State to produce “several reports” or its failure to exclude those reports. However, appellant cites only to the record of a hearing held near the end of trial and outside the jury’s presence. The trial court asked about “bills of proof.” The defense counsel offered defense exhibits two through six, as “examples of the State’s conduct in failing to produce statements.” At the hearing, defense counsel argued that the “statements should have been introduced or allowed to be introduced....”

Appellant, however, does not cite to a portion of the record where he requested that the trial court order the State to produce these reports, or where the reports were offered during the course of the trial and the trial court refused to admit the evidence. Neither does appellant cite authority to support this point of error. See Tex.R.App. P. 38.1(h). A reviewing court “will not brief appellant’s case for him.” Garcia v. State, 887 S.W.2d 862, 882 (Tex.Crim.App.1994). Appellant’s ninth point of error is overruled.

XI.Evidentiary Rulings

Appellant states in his tenth point of error that the trial court reversibly erred in making several evidentiary rulings. However, there is no argument supporting this point of error. The appellate rules and our case law demand that appellant “present his own case, stating his specific legal argument, specifying and citing from the record the factual bases for his argument, and preservation of error in the record, and argue case law, explaining its pertinence to his argument.” Id. This point is inadequately briefed.

We further note that the evidentiary ruling found in the one record cite provided by appellant is a ruling favorable to the defense. Thus, no error stems from the trial court’s ruling. Point of error ten is overruled.

XII. Prosecutorial Misconduct

Finally, by his eleventh point of error, appellant asserts that the conduct of the prosecutor denied him due process, a fair trial, due course of law, and effective assistance of counsel. Appellant asserts that “[t]he number [of comments] was so great that there can be little doubt they had an impact on the jury.” However, appellant does not explain or discuss the specific sidebar remarks and does not assert how they harmed him. Appellant also generally references volumes five through fifteen of the reporter’s record to support this complaint that the sidebar remarks begin from the beginning of the trial and continue until the end. This general record citation encompasses most of the trial record — from the State’s direct examination of one of the hunters who discovered the victim’s body to the polling of the jury on its guilty verdict. Yet, there are no specific cites to the record. We also note that a portion of the record about which he complains took place outside of the jury’s presence. Again, we will not brief appellant’s argument for him. See id.

Moreover, complaints about a prosecutor’s inappropriate comments about opposing counsel before the jury must be preserved by an objection. Garcia v. State, 126 S.W.3d 921, 925 (Tex.Crim.App.2004); Cannady v. State, 11 S.W.3d 205, 211-14 (Tex.Crim.App.2000). In many instances, an instruction to disregard will cure any error related to negative comments made about opposing counsel. Cannady, 11 S.W.3d at 211-14. Because appellant failed to make specific, timely objections to the instances about which he now complains, he has not preserved error for our review. See Tex. R.App. P. 33.1(a)(1)(A).

Finally, regarding his ineffective assistance of counsel claim, appellant fails to cite authority and posit arguments to establish the Strickland elements of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant has waived this claim. See Tex.R.App. P. 38.1(h); Cardenas, 30 S.W.3d at 393. We overrule appellant’s eleventh point of error.

XIII. Conclusion

Accordingly, the judgment of the trial court is affirmed.

      . See Tex. Pen.Code Ann. § 19.02 (Vernon 2003).

      . Appellant also complains about extraneous offenses he describes as "pseudo-cop” activities. This appears to be a label given by defense counsel to actions taken by appellant, the deceased and other friends when they allegedly took the law into their own hands.

      . Appellant also complains the statement should have been suppressed because it was not accurate or true. However, when determining whether a statement was voluntarily given, the trial court does not consider whether the statement is truthful or untruthful. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App.1999); Lopez v. State, 384 S.W.2d 345, 348 (Tex.Crim.App.1964). Therefore, truthfulness or lack thereof is not a ground for suppression of appellant's statement, and, thus, is not relevant to our review of this issue.

      . Although there is conflicting testimony regarding whether appellant received his Miranda warnings, he does not complain of improper warnings on appeal. See Tex.Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon 1979).

      . Appellant also contends the photographs were duplicative of the State’s videotape. However, we note that no videotape was made a part of the appellate record, and therefore we cannot address this contention.

      . The trial court excluded State Exhibits 125, 127, 131, 134, 135, 141, 143, and 144.

      . "Autopsy” is defined as "a post mortem examination of the body of a person, including X-rays and an examination of the internal organs and structures after dissection, to determine the cause of death or the nature of any pathological changes that may have contributed to the death.” Tex Code Crim. Proc. Ann. art. 49.01(1) (Vernon Supp.2004-2005).

      . In this case, the autopsy report, authorized by Amoldo Corpus, Justice of the Peace, Precinct 3, Hidalgo County, Texas, was prepared by forensic pathologist, Ruben C. Santos, M.D.

      . Appellant contends he was denied his confrontation right under the United States Constitution and under the Texas Constitution. However, because appellant does not brief his claims separately, we assume he claims no greater protection under the state constitution. Therefore, we apply only the Confrontation Clause of the Sixth Amendment of the United States Constitution to this analysis. See Wall v. State, 143 S.W.3d 846, 849 (Tex.App.-Corpus Christi 2004, pet. filed) (citing Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App.1997)).

      . Defense exhibits two and three are Mission police reports of the July 22, 1997 shooting. Exhibit four is an affidavit from Theresa Garza signed on July 23, 1997, expressing a desire to file criminal charges against appellant for the shooting. Defense exhibit five is a September 30, 1997 statement signed by Rosalinda De La Cruz. Finally, defense exhibit six is Miranda warnings in Spanish, initialed and signed by Rosalinda De La Cruz.


source: Caselaw Access Project

author: BRIAN QUINN, Justice.

license: Public Domain

text:
    Stephen SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0396-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 4, 2005.

      Beau T. Sinclair, Tyler, for Appellant.
    D. Matt Bingham, Criminal District Atty., Tyler, for Appellee.
    Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
   BRIAN QUINN, Justice.

Stephen Smith (appellant) appeals his conviction for theft. His sole issue involves the refusal of the trial court to allow him to question three State witnesses about possible bias favoring the State. We reverse the judgment.

As previously mentioned, appellant was being tried for theft. He purportedly stole a display case containing pseudoephedrine from the Karr Express convenience store. According to the appellate record, the store clerk could not identify him as the culprit. Nor could anyone else identify the thief save for three individuals, Bradley Smith (a relative and acquaintance of appellant), his fiancé Jennifer Carping, and Jennifer’s brother Clifton Carping. The three allegedly had ridden in a car with appellant to the convenience store and saw him leave with the stolen merchandise. So too were they related to or in the process of becoming related to Melissa Novak. Jennifer and Clifton were the children of Novak while Bradley was engaged to marry Jennifer (who was also his cousin and mother of his children). Moreover, the State had recently convicted Novak of possessing a controlled substance, and she awaited sentencing during the time of appellant’s trial.

Next, when appellant made effort to question the three witnesses about their relationship to Novak, her circumstances, and the influence, if any, those matters had on their testimony, the State objected. The objections were considered by the trial court outside the presence of the jury. Furthermore, the trial court permitted appellant to ask questions to the witnesses for purposes of determining whether their testimony was relevant to show bias or prejudice favoring the State. While both Jennifer and Clifton unequivocally denied any relationship between their testimony and their mother’s situation, Bradley did not. Instead, when asked, .“... [Djon’t you think it would be good for [Novak] if the prosecutor’s dffice thinks you cooperated,” he answered, “[Y]es, sir.” Despite this response, the trial court sustained the prosecutor’s objections and barred appellant from broaching the subject before the jury.

Our Court of Criminal Appeals has recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Maxwell v. State, 48 S.W.3d 196, 199 (Tex.Crim.App.2001), citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Furthermore, according to that court, jurors are entitled to have the benefit of the defense theory before them so that they can make an informed decision regarding the weight to accord the witness’ testimony even though they may ultimately reject the theory. IcL So, for some time now, it has been held that both parties to a criminal proceeding have “great latitude to show any fact which would or might tend to establish ill feeling, bias, motive and animus on the part of [a] witness.” (Emphasis added). London v. State, 739 S.W.2d 842, 846 (Tex.Crim.App.1987); Adair v. State, No. 12-01-0256-CR, 2002 Lexis 3854 at *3-4 (Tex.App.-Tyler, March 22, 2002, no pet.) (not designated for publication) (holding that a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest of a witness and may elicit any fact from a witness intended to demonstrate a witness’ vulnerable relationship with the State). And, though the trial court’s discretion in the area is broad, it is “not without limits.” London v. State, 739 S.W.2d at 846.

Next, the desire to expose potential bias often involves a witness testifying while criminal charges pend against him. See e.g. Maxwell v. State, supra (involving a witness who was on “deferred adjudication probation”). Yet, the same considerations exist when someone other than the witness faces criminal prosecution. For instance, it may be the witness’ brother, as in London. And, while London dealt with the right of the State to delve into the bias and prejudice of a defense witness, we find its language informative. There, the Court of Criminal Appeals held that the party attempting to elicit the information must establish its relevance. London v. State, 739 S.W.2d at 847. In other words, the question which must be determined is whether there exists a nexus between the criminal problems to which the third party is exposed and the witness’ testimony. Id. at 846. And, if such a link exists, then the testimony is relevant and the party should be allowed to develop it for consideration by the factfinder.

Assuming arguendo that the relationship between 1) Jennifer, Clifton, and Novak and 2) the evidence of Novak’s circumstance may not have been enough to illustrate the requisite link, that was not the only evidence before the trial court. The latter had also heard the comments of Bradley, Jennifer’s cousin, flaneé, and father of her children. Additionally, he admitted that it would be “good for [Novak] if the prosecutor’s office [thought he] cooperated” with the State. This response clearly evinces potential motivation for testifying favorably for the State, irrespective of whether he actually was so motivated. And, to this we add the undisputed evidence of both Bradley’s familial relationship with Novak’s daughter, son and No-vak herself. Finally, that there may have been no agreements or deals between the State and Novak regarding her punishment is alone not determinative, according to the Court of Criminal Appeals. Maxwell v. State, 48 S.W.3d at 199, citing Carroll v. State, 916 S.W.2d 494 (Tex.Crim.App.1996).

In short, the evidence presented to the trial court sufficiently illustrated a link, at the very least, between Bradley’s testimony and Novak’s pending criminal prosecution. Moreover, while the factfinder may ultimately assign little weight to the evidence of that link, not only was it entitled to hear about it, Maxwell v. State, swpra, but also appellant was entitled to present it. Again, both parties must be afforded “great latitude to show any fact which would or might tend to establish ill feeling, bias, motive and animus on the part of [a] witness,” even in view of the trial court’s broad, yet not unbounded, discretion. (Emphasis added). London v. State, 739 S.W.2d at 846. Consequently, we hold that the trial court erred in refusing to grant appellant the opportunity to cross-examine Bradley, Jennifer, and Clifton (before the factfinder) about their relationship with Novak, her pending criminal prosecution, and its potential effect on their testimony in appellant’s trial.

Having found that the trial court erred, we must also determine whether the error was harmful. We conclude that it was since the only evidence of record identifying appellant as the thief came from Bradley, Jennifer, and Clifton; and the State did not deny that. So, to the extent that Bradley acknowledged a potential link between his cooperation with the State at appellant’s trial and the outcome of Novak’s own criminal prosecution and given the relationship between Bradley, Jennifer, Clifton, and Novak, the jury was denied opportunity to make an informed decision about whether to believe their testimony.

Accordingly, we sustain appellant’s issue, reverse the judgment of the trial court and remand the cause for further proceedings.

      . The State did not favor this court with a brief.


author: Opinion by Justice MAZZANT.

text:
    DALLAS FIRE FIGHTERS ASSOCIATION, Ken Clower, Brett Stidham, Bryan Russell, Tracy Beard, Robert Myers, Robert McCrummen, John Speer, Robert Cale, Salvador Garcia, Chad Smith, Gary Brown, William S. White, Greg Forrester, Richard Santa Cruz, Murphy Rogers, David Diggs, Ron Janek, Dale Coston, Clayton King, Jesse Garcia, Steve Fass, Chris Willeford, Greg Harper, Dennis Perkins, Wesley Pemberton, Paul Julian, Noe Garza, Richard Gambrell, Chuck Bratton, Greg Sturch, Tolvia Wilcoxen, Richard Ewing, Benjamin Bryan, Rick Thomas, and John Garrison, Appellants, v. BOOTH RESEARCH GROUP, INC., Appellee.
    No. 05-04-00229-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 8, 2005.

      Barbara L. Emerson, Bellinger & De-Wolf L.L.P., James W. Jennings III, Dallas, for appellants.
    Philip Durst, Wiseman Durst Colvin & Owen, P.C., Austin, Karen Jyllane Tracy, Office of the City Atty., Dallas, for appel-lee.
    Before Justices MOSELEY, FRANCIS, and MAZZANT.
   OPINION

Opinion by Justice MAZZANT.

The Dallas Fire Fighters Association (DFFA) and thirty-five individual fire fighters (collectively appellants) appeal the trial court’s order granting summary judgment in favor of Booth Research Group, Inc. (BRG). Appellants bring six issues on appeal: (1) the court erred in disposing of their breach of contract claim; (2) the court erred in granting summary judgment for their negligent misrepresentation claim; (3) the court erred in dismissing appellants’s negligence claim; (4) BRG’s summary motion failed as a matter of law in not identifying legal authority; and (5) the court erred in declaring the judgment to be final because (a) appellants had asserted a claim against BRG not addressed in the motion and (b) BRG sought an affirmative claim for attorney’s fees not addressed by the order granting summary judgment. We affirm the trial court’s judgment.

Factual Background

The parties’ dispute involves the City of Dallas’s decisions regarding whom to promote in the fire operations division. The thirty-five individual appellants are fire fighters employed by the City who were either denied promotions or had promotions delayed. The DFFA is a nonprofit association whose purpose is to promote, support, and advocate on behalf of its members — Dallas Fire Department employees — regarding issues that include pay, staffing, and promotions.

When the City settled a lawsuit with the Black Fire Fighters Association — and with DFFA, Intervenor — in 1994, it agreed to provide an oral assessment as part of the exam given to candidates seeking a promotion to the rank of lieutenant and captain within the Dallas Fire Department. Five years later, the City contracted with BRG to develop an exam for promotions, including the written examination and the oral assessment portions. In April and May 2000, the thirty-five fire fighters sat for the oral assessment portion of the promotion examination. When the fire fighters’ promotions were denied or delayed, appellants sued.

In the most recent petition, filed November 10, 2003, appellants brought causes of action against BRG and the City of Dallas. In the portion of the petition involving BRG, appellants alleged BRG breached the contract it had with the City and that such breach resulted in injury to appellants. Appellants also raised a claim for negligent misrepresentation by asserting that BRG disseminated erroneous materials and information to the promotion candidates. Finally, appellants asserted a negligence claim and contended BRG was negligent in preparing the assessment materials. Appellants also sought attorney’s fees and court costs.

After filing a general denial, BRG moved for summary judgment. BRG argued there was no summary judgment proof that appellants had established any element of their negligence cause of action. BRG also asserted there existed specific summary judgment evidence that negated the negligent misrepresentation elements. Finally, regarding the breach of contract cause of action, BRG argued that (1) the record contained proof negating any breach of contract and (2) there was no evidence to establish appellants were third-party beneficiaries. BRG requested that all claims be dismissed and that upon entry of such judgment, the court set the cause for a hearing on the remaining issues of its causes of action and counter claims. Before the court ruled on the summary judgment motion, however, BRG sent a letter to the court stating, “[A]s reflected in our pleadings, at this time we do not make any claim for attorney’s fees or affirmative relief ...” (Emphasis in original.) The court granted BRG’s summary judgment motion, and concluding all claims were disposed of, declared the order to be a final judgment.

Appellants filed a motion for new trial, alleging the order could not constitute a final judgment as BRG had, in its first summary judgment motion, sought to reserve an affirmative counterclaim and a claim for attorney’s fees. The motion was overruled by operation of law.

GRANTING OF SUMMARY JUDGMENT

In their first three issues, appellants argue the court erred in granting summary judgment on their causes of action— breach of contract, negligent misrepresentation, and negligence. We disagree.

Standard of Review

In its motion for summary judgment, BRG raised both traditional and no-evidence points; the standards for reviewing both types of summary judgment are well established. See Tex.R. Civ. P. 166a(c), 166a(i). Under a traditional motion for summary judgment, the moving party carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). After the movant produces evidence entitling it to summary judgment, the burden then shifts to the nonmovant to present evidence of any issues that would preclude summary judgment or create a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Muckebroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied). Any doubts about the existence of a genuine issue of material fact are resolved against the movant, and all evidence and any reasonable inferences must be viewed in the light most favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). In determining whether the non-movant has met its burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.Dallas 2002, no pet.); General Mills, 12 S.W.3d at 833.

When the trial court does not specify the basis for its ruling, it is an appellant’s burden on appeal to show that each of the independent grounds asserted in support of summary judgment is insufficient to support summary judgment. See Smith v. Tilton, 3 S.W.3d 77, 83 (Tex.App.-Dallas 1999, no pet.).

Breach of Contract

In their first issue, appellants contend the trial court erred in disposing of their breach of contract claim. Appellants argue they are intended beneficiaries under the contract because the City agreed to provide an oral assessment as part of the exam given to promotion candidates under the 1994 settlement agreement. Appellants further argue the City had a legal duty to provide the oral assessment, and it contracted with BRG to meet this requirement. We disagree with appellants’ arguments.

Third-Party-Beneficiary Status

Appellants identify the summary judgment motion addressing third-party-beneficiary status as a no-evidence motion. Appellants contend there existed evidence establishing they were a third-party beneficiary of the contract between BRG and the City. We disagree.

The fact that a person might receive an incidental benefit from a contract to which he is not a party does not give him a right of action to enforce the contract. MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999). A third party may recover on a contract made between other parties only if the parties entered into the contract directly for the third party’s benefit. Id. To qualify as one for whose direct benefit the contract was made, the third party must show that he is either a donee or creditor beneficiary of, and not one who is benefited only incidentally by, the performance of the contract. Id.

In determining whether a third party can enforce a contract, the intention of the contracting parties is controlling. Id. A court will not create a third-party-beneficiary contract by implication. Id. The intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out, or enforcement by the third party must be denied, and the reviewing court looks at the language in the contract. See id.

Consequently, a presumption exists that parties contracted for themselves unless it “clearly appears” that they intended a third party to benefit from the contract. Id.; Whitten v. Vehicle Removal Corp., 56 S.W.3d 293, 311-12 (Tex.App.Dallas 2001, no pet.). If there is any reasonable doubt as to an intent to confer a direct benefit, the third-party-beneficiary claim must fail. Whitten, 56 S.W.3d at 312; see MJR Corp. v. B & B Vending Co., 760 S.W.2d 4, 10 (Tex.App.-Dallas 1988, writ denied). We will deny third-party recovery unless

(1) the obligation of the bargain-giver is fully spelled out, (2) it is unmistakable that a benefit to the third party was within the contemplation of the primary contracting parties, and (3) the primary parties contemplated that the third party would be vested with the right to sue for enforcement of the contract — all presumptions being invoked against liability to the third party.

Whitten, 56 S.W.3d at 312 (quoting Reyna v. Safeway Managing Gen. Agency for State and County Mut. Fire Ins. Co., 27 S.W.3d 7, 22 (Tex.App.-San Antonio 2000, pet. granted, judgm’t vacated w.r.m.)).

In the present case, appellants were not parties to the contract between BRG and the City. Further, they were not referenced as an intended beneficiary under the contract. There is no evidence the City and BRG “entered into the contract directly and primarily for the benefit of’ appellants. See Whitten, 56 S.W.3d at 311-12. Further, any benefit to appellants is not “clearly and fully spelled out,” nor does it “clearly appear” that BRG and the City intended a third party to benefit from the contract. See MCI Telecomm., 995 S.W.2d at 651. We cannot conclude that it is “unmistakable” that a benefit to appellants was within BRG’s and the City’s contemplations. See Whitten, 56 S.W.3d at 311-12.

Appellants argue they were intended to benefit under the contract because the contract sought to fulfill the 1994 settlement requirements. Appellants’ reasoning is misplaced. The City did not contract with BRG to relieve the City of its burden of providing an oral assessment. It merely contracted with BRG to develop the oral assessment. At most, appellants only incidentally benefited from the contract.

BRG’s Assumption of the City’s Contractual Duties

In its amended petition, appellants added a paragraph to their section entitled “Breach of Contract/Third-Party Beneficiary.” This new paragraph alleged BRG had “assumed the duties and obligations of the City under the terms of the Contract” and as a result, “BRG had a duty to comply with the applicable provisions of the City Charter and Civil Service Rules. BRG failed to do so and is liable to [appellants] for breach of those contractual obli-gations_” Appellants make no argument under their first issue that the court erred in granting summary judgment for this allegedly “new” breach of contract claim; they address only the third-party-beneficiary argument. ' Accordingly, we do not review that portion of the court’s judgment under this issue.

Conclusion

The presumption exists the City and BRG contracted only for themselves, and it does not “clearly appear” in the contract that the City and BRG intended a third party to benefit more than incidentally from the contract. See MCI Telecomm., 995 S.W.2d at 651; Whitten, 56 S.W.3d at 311-12. We therefore reject the third-party-beneficiary claim and conclude any benefit to appellants in particular was merely incidental to the contract between BRG and the City. We resolve appellants’ first issue against them.

Negligent Misrepresentation

In their second issue, appellants argue the trial court erred in granting summary judgment on their negligent misrepresentation. claim. Appellants contend BRG failed to meet its burden of establishing that no material fact issue existed and that it was entitled to judgment as a matter of law.

Appellants alleged BRG disseminated erroneous information to promotion candidates during the orientation sessions conducted prior to the oral assessments. Appellants contend that Dr. Walter S. Booth, president of BRG, told the candidates they would be questioned about their written responses to the previously administered written exams. Appellants alleged they were not questioned about their written responses but were instead “questioned on entirely different questions.” Appellants also alleged that Booth represented to the candidates that no significant movement in rank should occur based on the oral assessments, as compared to the rank received after completing the written portion of the examination.

BRG argued in its motion for summary judgment that these basic elements of appellants’ negligent misrepresentation claims were negated:

(1) the representation is made by a defendant in the course of his business, or in a transaction in which he has a pecuniary interest;
(2) the defendant supplies “false information” for the guidance of others in their business;
(3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and
(4) the plaintiff suffers pecuniary loss by justifiably relying on the representation.

Federal Land Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). “Significantly, the sort of ‘false information’ contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct.” Allied Vista v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet denied) (citing Airborne Freight Corp., v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 294 (Tex.App.-El Paso 1992, writ denied)).

As part of its summary judgment evidence, BRG attached a transcribed copy of the orientation session. It was during this orientation that appellants alleged BRG made the complained-of misrepresentations. There were two types of information appellants alleged BRG provided that was false: (1) the topics on which candidates would be questioned and (2) the movement Booth expected should occur in the rankings after the oral assessment was completed. .

Regarding the types of questions that would be asked of promotion candidates during the oral assessments, Booth stated, “[Tjhey’ll ask you a variety of questions. Some of the questions will be based directly on your response; some will be general questions that they’ll ask every single candidate to respond to.” This statement shows Booth’s expectation of what would happen during the oral assessments included the examiners asking “general questions” unrelated to the candidates’ individual responses. We conclude, therefore, the summary judgment evidence provided by BRG shows that Booth did not state the candidates would be asked only about their responses.

Regarding the movement expected, Booth stated,

I have seen some significant movement in people, and there’s not much movement, you know. It varies considerably.
I doubt that there would be significant movement; but I must say, what is significant to me may be different than what’s significant to you....
I don’t think you’ll see a huge — you know, a lot — very many people moving more than six places. This is just speculation on my part, too. I’m sure this is going to come back to haunt me. “You said” — but I don’t anticipate that. I would be surprised with it if there were a lot of people moving a significant number of places.

The statements about movement of ranks likewise reflected Booth’s expectation of future performance and, as Booth himself stated, were merely speculation. We conclude the statements about movement consisted of an expectation of future conduct, not existing fact. See Allied Vista, 987 S.W.2d at 141; Airborne Freight Corp., 847 S.W.2d at 294. Because a statemént about an existing fact is required for a negligent misrepresentation claim, we conclude BRG negated an element of appellants’ negligent misrepresentation claim.

Having produced evidence negating an element of appellants’ negligent misrepresentation claim, the burden shifted to appellants to present evidence of any issues that would preclude summary judgment or create a fact issue. See Walker, 924 S.W.2d at 377. The evidence appellants produced to support its contention that BRG supplied false information was the deposition testimony of Ken Clower and Noe Garza. However, this deposition testimony showed the compláined-of statements by Booth were statements referencing future acts- — -not existing facts.

We conclude appellants did not meet their burden of presenting evidence of any issues that would preclude summary judgment or create a fact issue. We resolve appellants’ second issue against them.

Negligence

In their third issue, appellants argue the court erred in granting the summary judgment on their negligence claim. They argue competent summary judgment evidence established there was more than a scintilla of evidence and/or a genuine issue of material fact as to each element of their claim BRG was negligent in administering the promotional testing.

In its summary judgment motion, BRG first addressed appellants’ negligence claims and stated it was “entitled to judgment as a matter of law on any of plaintiffs’ causes of action for negligence.” BRG argued there was no summary judgment proof that appellants had established any element of their negligence cause of action. BRG quoted caselaw to state elements of negligence include duty, breach of that duty, and damages “proximately resulting from the breach.” See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex.1975).

A no-evidence summary judgment motion could have been granted if appellants had no evidence of any one of the elements of negligence. See Gen. Mills Rest., Inc., 12 S.W.3d at 832. And on appeal, because the court did not specify its reasons for granting summary judgment, appellants have the burden to show that each of the grounds asserted in support of summary judgment is insufficient to support summary judgment. See Smith, 3 S.W.3d at 83. BRG argued that appellants had no evidence of any of the elements for negligence—duty, breach of that duty, and damages as caused by the breach. Accordingly, once BRG asserted its no-evidence ground, appellants had the burden to present enough evidence to raise a genuine issue of material fact on each of those challenged elements. See Gen. Mills Rest., 12 S.W.3d at 832.

In their brief, appellants argue there was summary judgment evidence establishing a duty and breach of that duty. However, as to any alleged breach causing damages, appellants merely state, “The summary judgment record established that these acts and omissions greatly impacted the Fire Fighters’ performance, proximately causing the Fire Fighters’ injury pursuant to the inequitable promotion and/or allocation of available positions for fire lieutenant and/or fire captain, adverse placement on the promotion list(s), delay and/or failure of the Fire Fighters to be promoted as entitled.” Appellants fail to explain why or how any alleged breach caused them not to be promoted when others, after taking the same performance examination, were promoted. And they fail to direct this Court to any summary judgment evidence they presented that raised a genuine issue of material fact on the challenged element of causation. Further, appellants cite to no evidence in the record to establishing a fact issue regarding causation. Accordingly, although appellants brought the general issue forward, they have inadequately briefed any argument on this ground for summary judgment. See Tex.R.App. P. 38.1(h).

Notwithstanding inadequate briefing, appellants made the same generalized statement regarding causation in their response to BRG’s summary judgment motion, referencing their exhibits 4-7. Exhibits 4 and 5 are lists of those eligible to take the exam for lieutenant and captain respectively, their ranks, and dates of promotion. Exhibits 6 and 7 are lists showing the movement among the rankings after the oral assessment was administered. Appellants had the burden, once BRG moved for summary judgment based on no evidence, to present enough evidence to raise a genuine issue of material fact on each of the challenge element of causation. See Gen. Mills Rest., 12 S.W.3d at 832. The lists attached as Exhibits 4-7 do nothing to show how any alleged breach of an alleged duty caused other candidates to be promoted before appellants. We conclude appellants failed to meet their burden, and we resolve their third issue against them.

Identification of Legal Authority / Citation to Evidence

In their fourth issue, appellants complain that BRG’s summary judgment motion “failed as a matter of law” because BRG did not “identify either legal authority and/or evidence” supporting the motion in a timely manner. Appellants contend BRG was required to direct the trial court to the evidence on which it relied.

Appellants present no actual argument under this issue that BRG failed to cite legal authority. Accordingly, this part of their issue is inadequately briefed. See Tex.R.App. P. 38.1(h).

Regarding appellants’ contention BRG failed to specifically point out its evidence supporting the summary judgment motion, we first note that regarding BRG’s no-evidence motions, BRG was not required to produce evidence. As reviewed above, BRG raised no-evidence points regarding its third-party-beneficiary breach of contract cause of action and its negligence cause of action. Because BRG was not required to produce evidence for any of these no-evidence points, we conclude appellants’ fourth issue is inapplicable to these causes of action.

Further, BRG raised a no-evidence point regarding the allegedly new breach of contract claim addressing the City’s duties under the city charter and civil service rules. In its original motion, BRG alleged there was “no summary judgment proof that the test administered by BRG violated any of the Dallas City Charter or Civil Service Rules alleged by plaintiff.” This ground squarely addresses the later-pled cause of action that BRG did not comply with the applicable provisions of the City Charter and Civil Service Rules. A movant need not amend a motion if it is sufficiently broad to encompass a later-filed claim. See Wilson v. Korthauer, 21 S.W.3d 573, 579 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). And appellants do not complain that summary judgment was granted on that ground in error, so we need not review the appropriateness of summary judgment on that no-evidence ground. Because BRG was not required to produce evidence for this ground, we conclude appellants’ fourth issue is inapplicable to this allegedly new cause of action. We address Appellant’s fourth issue as it relates only to appellants’ negligent misrepresentation claim.

During the hearing on the summary judgment motion, BRG directed the court to the transcribed copy of the orientation session. Further, BRG submitted a brief in support of its summary judgment motion that directs the court to specific page numbers in the orientation transcription. We conclude the court was made aware of the evidence bn which BRG relied.

Appellants do not offer any legal authority to support the contention that BRG’s failure to identify the specific evidence on which it relied “could not be cured by the late submission at the hearing.” Accordingly, appellants have not briefed that part of their argument. See Tex.R.App. P. 38.1(h). We resolve appellants’ fourth issue against them.

Summary Judgment Disposing of All Claims

In their fifth and sixth issues, appellants argue the trial court erred in ruling that all of BRG’s claims had been disposed of and thus erred in declaring the judgment to be final because (1) appellants had asserted a claim against BRG not addressed in BRG’s original motion and (2) BRG sought an affirmative claim for attorney’s fees not addressed by the order granting summary judgment. Appellant’s argument is without merit.

Appellant’s Third Amended Petition

After BRG filed its motion for summary judgment, appellants filed their third amended petition, seven days prior to the summary judgment hearing. In their fifth issue, appellants argue this new petition added a “new and distinct breach of eon-tract claim against BRG that was not based upon appellants’ standing as third-party beneficiaries.” That new paragraph alleged BRG was hable to appellants for breach of contract because BRG had “assumed the duties and obligations of the City under the terms of its Contract” and “had a duty to comply with the applicable provisions of the City Charter and Civil Service Rules.” Appellants now complain (1) according to rule 166a(c), the court could grant summary judgment only on grounds raised in the original motion; (2) the original summary judgment motion did not address this allegedly “new” cause of action; and (3) therefore, the court erred in granting summary judgment for this allegedly new cause of action. See Tex.R. Crv. P. 166a(c).

BRG’s original motion for summary judgment included appellants’ “new” contract claim. In its original motion, BRG stated both that (1) it was “entitled to judgment as a matter of law on any of plaintiffs cause [sic] of action for alleged breach of contract,” and (2) there was “no summary judgment proof that the test administered by BRG violated any of the Dallas City Charter or Civil Service Rules alleged by plaintiff.” (Emphasis added.)

If the original motion was sufficiently broad to encompass the later-filed claim, BRG was not required to amend its motion in order for the trial court to consider the new claim as having been addressed by the former motion. See Wilson, 21 S.W.3d at 577. In granting summary judgment in BRG’s favor, the court stated it disposed of all of appellants’ claims. Accordingly, we conclude the court interpreted appellants’ added theory of breach of contract as having been addressed by BRG’s original motion for summary judgment. Appellants do not complain the court erred in granting summary judgment on its alleged new theory under breach of contract. We resolve appellants’ fifth issue against them.

Attorney’s Fees

In their sixth issue, appellants again argue the court erred in ruling it had disposed of all of appellants’ claims, this time because there remained before the court BRG’s request for attorney’s fees. In a letter to the court from BRG, prior to the entry of judgment, and in their brief before this Court, BRG waived its claims for attorney’s fees. We resolve appellants’ sixth issue against them.

We affirm the trial court’s judgment.

      . The City of Dallas was originally a co-defendant in this case. The City filed its plea to the jurisdiction, which the court granted. We affirmed that order in Dallas Fire Fighters Association v. City of Dallas, No. 05-03-01787-CV, 2004 WL 1662945, at *2 (Tex.App.-Dallas Jul.27, 2004, pet. filed).

      . BRG filed an amended motion for summary judgment shortly before the hearing on the first summary judgment motion was held.

      . We make no determination if the added paragraph actually added a new cause of action; that determination is unnecessary for purposes of our review.

      . Appellants do not argue the judgment is not final and appealable, only that it is subject to reversal because the court erred in determining all claims had been disposed of based on the arguments raised in the summary judgment motion.

      . BRG made the same statements in its amended summary judgment motion.