author: JIM R. WRIGHT, Justice. JOHN G. HILL, Justice,

text:
    Mark Allen HAYDEN, Appellant, v. State of TEXAS, Appellee.
    No. 11-03-00069-CR.
    Court of Appeals of Texas, Eastland.
    Jan. 13, 2005.

      Fred I. Franklin, Jr., Brownwood, for appellant.
    Micheál Murray, Dist. Atty., Brown-wood, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and HILL, J.

       John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.

   Opinion

JIM R. WRIGHT, Justice.

Mark Allen Hayden appeals his conviction by a jury of the offense of robbery. The jury assessed his punishment at 30 years in the Texas Department of Criminal Justice, Institutional Division. Appellant presents 11 issues in connection with this appeal. We affirm.

Appellant contends in issue one that the trial court erred when it denied his motion for instructed verdict at the close of the State’s evidence; while in issue two, he urges that the evidence is factually insufficient to support his conviction. A challenge to the trial court’s ruling on a motion for instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex.Cr.App.1993).

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004).

A person commits robbery if, in the course of committing theft as defined in TEX. PEN. CODE ANN. ch. 31 (Vernon 2003 & Supp.2004-2005) and with intent to obtain or maintain control of the property, he or she intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02(a)(2) (Vernon 2003). Appellant argues that the evidence is insufficient to show that he threatened or placed another in fear of imminent bodily injury.

Ben Jeremiah Stembridge testified that he was working at a Brown County convenience store when a woman came in the store and asked if she could take beer out to the car, put gas in the car, and then come in and pay for it. Stembridge’s testimony is that these events happened on June 25, 2001, between 8:00 and 9:00 p.m. He said that she came in twice within seconds. He related that, when he refused to let her take the beer without an “I.D.,” she asked him if he wanted her to get her “old man” to come in.

Stembridge testified that shortly thereafter appellant came in. He indicated that appellant had a cap on; was wearing no shirt; had a “high level” of tattoos located on his chest, back, and stomach; was wearing shorts; and was unshaven. Stem-bridge identified a store video that showed tattoos on appellant’s chest, stomach, and arms. He related that appellant asked him if he were “playing his woman.” He said that at that point he felt threatened and was getting nervous and a little scared. Stembridge indicated that appellant went back to where the beer was kept and got a case. Stembridge said appellant told him, while making a gesture pointing at him, that, if he called the police, he would “come back and f~k me up.” He stated that appellant told him that they were going to take the beer and gas and not to call the cops. Stembridge insisted that the threat was related to appellant’s taking the beer. Stembridge said that he took it as a threat; that he believed him; and that he was thinking of calling the cops, which scared him a little, and shook him up. He acknowledged that he was trained not to fight with appellant or not to physically try to keep him from taking the beer. He said he thought that, if he tried to keep appellant from taking the beer, he might get attacked and that appellant might be able to hurt him.

We must determine if the accused’s words and conduct were sufficient to place a reasonable person in the victim’s circumstances in fear of imminent bodily injury. Welch v. State, 880 S.W.2d 225, 226 (Tex.App.-Austin 1994, no pet’n). The evidence may be sufficient even if there is no evidence that the defendant was armed or expressly threatened the victim. Id. at 227. We hold that appellant’s appearance, words, and gesture, as set forth herein, were sufficient to place a reasonable person in Stembridge’s circumstance in fear of imminent bodily injury.

Appellant urges that the evidence is insufficient because it was a conditional threat — -that he merely committed the offense of theft coupled with a threat of harm in the event that the theft were reported. He primarily relies upon the cases of Devine v. State, 786 S.W.2d 268, 270 (Tex.Cr.App.1989), and Blount v. State, 542 S.W.2d 164, 166 (Tex.Cr.App.1976). We find both of those cases to be distinguishable.

In Devine, the victim’s ex-wife continually threatened death or injury to him unless he gave her money. Devine v. State, supra at 269. The victim gave her money for a time; but when she demanded $2,500, he refused and went to the police. Id, After police wired him with a microphone, the victim met the defendant in a restaurant, where she was arrested after he gave her some marked money. Id. The defendant told the victim at the restaurant that she had almost had him killed the day before but that she had canceled the plan when he agreed to show up with the money. Id. The court held that threatening to kill the victim at some time in the future if he had refused to hand over the money was not sufficient to show a threat of bodily injury or death to be inflicted imminently. Id. at 270-71.

In Devine, the evidence reflected that the victim was giving the money to the defendant because of her prior threats of future harm and in order to make a criminal case against her, not because of any words or conduct on her part at their meeting constituting a threat of imminent bodily injury. In the case at bar, appellant, who was bigger than Stembridge, was about two feet from him. Appellant appeared agitated. Appellant’s appearance, language, and gesture, coupled with his threat of future harm while he was taking out the beer, were sufficient to place a reasonable person in fear of imminent bodily injury. Id. at 270.

In Blount, the court held that the evidence of a threat of future harm made after a rape was insufficient to support the charge of aggravated rape because it did not show that the rape was compelled by the threat of death, serious bodily injury, or kidnaping to be imminently inflicted on anyone, where no weapon was used and where the only threat of serious bodily injury was made after the rape, was conditioned on the victim going to the police, and related to some indefinite time in the future. Blount v. State, supra at 166; see also Bright v. State, 585 S.W.2d 739, 742 (Tex.Cr.App.1979). As in Blount, no weapon was used in the case at bar; and the threat related to an indefinite time in the future, conditioned on the victim contacting the police. However, in the case at bar, appellant’s threats of future harm, coupled with his appearance, language, and gesture, were made at the time he was taking the beer without paying for it. We believe that a jury could determine that a reasonable person in Stembridge’s position would have been placed in fear of bodily injury in connection with appellant’s taking the beer. We therefore find that the evidence is legally and factually sufficient to support appellant’s conviction of robbery. We overrule issues one and two.

Appellant urges in issues four and five that the trial court erred when it admitted into evidence two extraneous offenses that occurred after the robbery and after he had been arrested. When defense counsel objected, he argued that the evidence constituted evidence of extraneous offenses and that it was just an attempt to smear his client by saying that he is a bad guy. The trial court had the jury removed from the courtroom and asked the State’s attorney to develop the proposed line of questioning regarding the alleged extraneous offenses.

In the hearing outside of the presence of the jury, Deputy Scott Bird of the Brown County Sheriffs Department testified that, on the evening of the robbery, he began his shift at 10:00 p.m. and that he received a call from his dispatcher that someone had broken into a house to commit an assault. The dispatcher informed Deputy Bird that appellant was the suspect in the burglary. Deputy Bird went to the address where the burglary had occurred and met the victim of the assault. The victim told Deputy Bird that appellant had asked him for some money that the victim owed him and that appellant had assaulted him and left. The victim was trembling and shaking and was very nervous that appellant would return; he was scared.

Earlier, Deputy Bird, along with other officers, had received a briefing before the evening shift began. It was in this briefing that Deputy Bird learned about the robbery. Deputy Bird also learned at this briefing that appellant was the suspect in that robbery.

After talking to the victim of the burglary, Deputy Bird began looking for appellant. After another officer found appellant’s pickup, Deputy Bird went to the apartment complex where the vehicle had been located. Appellant was walking up to his pickup when Deputy Bird got there. He made contact with appellant, placed him under arrest for the burglary, and put appellant in his patrol car. Deputy Bird’s supervisor suggested that he look in the pickup to see if there was any evidence from the robbery, particularly the beer. As Officer Bird was going to appellant’s pickup, appellant began to yell at the officer: “Stay away from [my] truck. Get away from my pickup.” Deputy Bird found a case of Budweiser beer in plain view in the back of the pickup. Deputy Bird testified before the jury that there were three full beers left in the case and that there was one empty can in the case. Appellant had taken a case of Budweiser in the robbery. When Deputy Bird found the Budweiser beer case, he held it up and appellant saw that Deputy Bird had found it. At that point, appellant began to kick the back window out of the patrol car. Deputy Bird also indicated that appellant was quiet on the way to the jail because he had been sprayed with O.C. Spray after he had kicked out the window of the patrol cai*. When they arrived at the jail, he kicked at Deputy Don Carmack, who was helping escort appellant into the jail. Appellant “was taken to the ground.”

After the hearing outside the presence of the jury, the trial court sustained appellant’s objection regarding the burglary with intent to commit assault and found that the probative effect of such evidence was outweighed “by the prejudicial nature of it” and also that “it is not part of the same contextual evidence.” However, the court overruled the remainder of appellant’s objection because the evidence was appropriate “same contextual evidence.”

When confronted with a question regarding the admissibility of evidence, we must determine whether the trial court clearly abused its discretion when it admitted the evidence. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Cr.App.1985). If a trial court’s ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Santellan v. State, 939 S.W.2d 155, 168-69 (Tex.Cr.App.1997).

The law favors the admissibility of relevant evidence. Macri v. State, 12 S.W.3d 505, 511 (Tex.App.-San Antonio 1999, pet’n ref'd). “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TEX. R. EVID. 401. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. TEX.R.EVID. 403. In order to make that determination, the trial court must engage in a balancing test under Rule 403.

A Rule 403 balancing test includes the following factors:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; [and]
(4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Cr.App.2000).

The general rule in Texas is that the State is entitled to show circumstances surrounding an arrest. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Cr.App.1985). However, when such evidence is inherently prejudicial and has no relevance to any issue in the case, the general rule no longer applies, and the evidence becomes inadmissible. Id. While any evidence presented by the State most likely is inherently prejudicial, it is only that evidence which is unfairly prejudicial which is excluded. Wyatt v. State, supra at 26. Here, however, the contested evidence was relevant to the issue of whether appellant, by his appearance, language, and conduct, placed Stembridge in fear of imminent bodily injury at the time that he stole the beer from the convenience store. Appellant’s subsequent conduct shows his ability to place another in fear of imminent bodily injury and is, therefore, relevant. Further, although the evidence might impress the jury in some way, we do not think that such an impression would be such that it would be irrational in view of the charged offense and the nature of the subsequent conduct. Further, the record does not show that the time needed to develop the evidence was such that the jury would be distracted from the indicted offense. Finally, as we have said, the evidence about which appellant complains was related to an issue in the case; and, although other evidence was offered to show that appellant placed Stembridge in fear of imminent bodily injury, the factors under Rule 403 are merely factors included among the factors to be considered. Wyatt v. State, supra at 26.

Other crimes, wrongs, or acts may also be admissible as “same transaction” contextual evidence. Such evidence is admissible when “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” Rogers v. State, 853 S.W.2d 29, 33 (Tex.Cr.App.1993). The fact finder is entitled to know what happened immediately before and after the commission of the charged offense so that it might be in a position to realistically evaluate the evidence. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Cr.App.2000).

We hold that the trial court properly engaged in the balancing test required by Rule 403 and that it did not abuse its discretion when it admitted the other evidence of appellant’s conduct. Furthermore, the evidence is admissible as “same transaction” contextual evidence. Appellant’s fourth and fifth issues on appeal are overruled.

Appellant contends in his sixth issue that the trial court erred when it admitted evidence concerning his tattoos. We find no record of any objection to this testimony; consequently, nothing is presented for review. TEX.R.APP.P. 33.1(a). We overrule appellant’s sixth issue on appeal.

Appellant insists in issue seven that the trial court erred in admitting into evidence testimony from Stembridge’s supervisor with respect to a statement Stem-bridge made to her after the robbery. A trial court’s ruling on the admissibility of evidence is generally reviewed under an abuse of discretion standard. Bowie v. State, 135 S.W.3d 55, 59 (Tex.Cr.App.2004).

Carla Jones testified that Stembridge used to be one of her “clerks.” She said that on the day of the robbery she received a phone call from Stembridge. She stated that he appeared to be “[k]ind of nervous.” She related that Stembridge had told her that he had been threatened. When she was asked if Stembridge had told her generally what the threat was, counsel for appellant objected on the basis that the testimony was hearsay. The trial court overruled the objection, holding that the testimony was admissible under the excited utterance exception to the hearsay rule. Jones then testified: “[Appellant] said if [Stembridge] called the cops that he would kill him.”

Statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition are admissible under the excited utterance exception to the hearsay rule. TEX.R.EVID. 803(2). We hold that the trial court did not abuse its discretion in determining that Stem-bridge’s statement was an excited utterance and, therefore, was admissible as an exception to the hearsay rule.

Appellant argues that the statement, even if it were an excited utterance, might be inadmissible on other grounds. The only ground he urges, however, is that Jones’s testimony differs from that of Stembridge with respect to the wording of the threat. Appellant solely relies on the opinion in King v. State, 953 S.W.2d 266, 269 (Tex.Cr.App.1997). In King, the court held that a witness’s statement was admissible as an excited utterance and that the trial court, acting in its discretion, could have found that there was a basis for an opinion expressed in the statement. Id. at 270-71. We find that King is consistent with and not in conflict with this opinion. Appellant presents no authority supporting any suggestion that evidence otherwise admissible is rendered inadmissible because it is in conflict with other evidence, and we are not aware of any. We overrule issue seven.

Appellant asserts in his eighth issue on appeal that the State permitted Stembridge to testify that the event in question occurred at approximately 8:00 or 9:00 p.m. He asserts that, since the store’s security tape shows that it was still daylight outside, the robbery must have occurred at an earlier time. An appellate court may take judicial notice for the first time on appeal. Granados v. State, 843 S.W.2d 736, 738 (Tex.App.-Corpus Christi 1992, no pet’n). According to the website of the United States Naval Observatory, at www.usno.navy.mil, sunset occurred in Brown County on June 25, 2001, at 8:45 p.m., and civil twilight occurred at 9:13 p.m. Consequently, there is no inconsistency between Stembridge’s testimony and the store security tape.

Appellant also suggests that Stem-bridge’s testimony that he had voluntarily quit his employment at the store following the event in question was perjured because it conflicted with the testimony of Jones. Actually, Jones testified that, when she talked with Stembridge following the robbery, she tried to talk to him and calm him down. She stated that, when she came in the next day, Stembridge had left a note saying that he was not coming back. She said she took that to mean that he had quit. Consequently, there is no conflict between Stembridge’s testimony and that of Jones. We overrule issue eight.

Appellant argues in his ninth issue on appeal that the trial court erred when it overruled his pretrial application for writ of habeas corpus and refused to permit him to be released on a personal bond. However, as appellant notes in his brief, the decision as to whether to permit a person accused of a crime to make a personal bond is within a magistrate’s discretion. TEX. CODE CRIM. PRO. ANN. art. 17.03(a) (Vernon Supp.2004-2005). Appellant cites the general provision in TEX. CODE CRIM. PRO. ANN. art. 17.15(2) (Vernon Supp.2004-2005) that the power to require bail is not to be so used as to make it an instrument of oppression. Article 17.15(2). He presents no argument or authority as to why in his case the trial court’s denial of his request for personal bond constituted using the power to require bail so as to make it an instrument of oppression. We overrule appellant’s ninth issue on appeal.

In his third and tenth issues on appeal, appellant complains that he received ineffective assistance of counsel. In order to determine whether appellant’s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

In his third issue on appeal, appellant argues that his trial counsel was ineffective in making a motion for an instructed verdict before the State had rested. Appellant contends that, by making the motion prematurely, the State was able to recall Stembridge and offer additional testimony to bolster its case. The record is silent as to why appellant’s trial counsel chose to make a motion for instructed verdict before the State had rested its case. An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel’s actions — whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808 (Tex.Cr.App.1999). Moreover, TEX. CODE CRIM. PRO. ANN. art. 36.02 (Vernon 1981) provides that the trial court may “allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” The trial court should allow a party to reopen its case if the evidence would materially change the case in the proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex.Cr.App.2003). Therefore, had trial counsel moved for an instructed verdict after the State rested, the trial court may have allowed the State to reopen its case and offer the additional testimony.

In his tenth issue on appeal, appellant complains that his trial counsel was ineffective in failing to adequately prepare for trial. Appellant alleges several instances in which he contends his trial counsel was deficient in his trial preparation. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record; and the record must affirmatively demonsfrate the alleged ineffectiveness. Thompson v. State, supra; McFarland v. State, 845 S.W.2d 824 (Tex.Cr.App.1992), cert. den’d, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Appellant’s contentions are not supported by the record. Appellant has not shown that trial counsel’s decisions were not based on sound trial strategy. Therefore, appellant has not shown that he received ineffective assistance of counsel. Appellant’s third and tenth issues on appeal are overruled.

In his eleventh issue, appellant complains that the trial court erred in allowing the State to intimidate a defense witness. During the punishment phase of the trial, appellant called Sylvia Bessette to testify. Bessette stated that appellant had previously been convicted for the offense of indecency with a child and that she was the victim of that offense. Bes-sette testified that appellant did not commit that offense. On cross-examination, the State questioned Bessette about statements she made to an investigator concerning the offense. Bessette stated that she did not recall making some of the statements. The State informed Bessette that she was testifying under oath and that “if you get up while under oath and tell a he ... that could be considered aggravated perjury.” The State then told Bessette the penalty range for a third degree felony.

Appellant objected, arguing that the State was trying to intimidate the witness. The trial court instructed the State that it could only inform Bessette on the distinction between perjury and aggravated perjury. Bessette stated that she was aware of the distinction, and there were no further questions concerning perjury.

The record does not support appellant’s argument that the State threatened or harassed Bessette. The State informed Bessette of the consequences of lying under oath. See Webb v. State, 503 S.W.2d 799 (Tex.Cr.App.1974). Appellant has not shown that the trial court erred in overruling his objection to the State’s comments on perjury. Appellant’s eleventh issue on appeal is overruled.

A majority of this court affirms the judgment of the trial court.

Dissenting Opinion by JOHN G. HILL, Justice.

JOHN G. HILL, Justice,

dissenting.

I respectfully dissent because the trial court abused its discretion by admitting evidence that Hayden, after his arrest, kicked out the back window of the patrol car and that, while being taken to jail, he kicked Deputy Carmack. Even if the evidence is relevant, what little probative value it might have is substantially outweighed by the danger of unfair prejudice.

The majority correctly sets forth the four principal factors to be considered in applying a Rule 403 balancing test. The first factor is how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor that is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense. In discussing this factor, the majority concludes that the evidence in question was relevant. It specifically mentions that it is relevant to show Hayden’s ability to place another in fear of imminent bodily injury. The issue before the jury was whether Hayden’s words, appearance, and conduct placed the complainant in fear of imminent bodily injury, not whether Hayden had the ability to do so. Consequently, I would not characterize Hayden’s ability to place the complainant in fear of imminent bodily injury to be a fact of consequence under the facts of this case. The evidence of Hayden’s extraneous conduct was weak with respect to whether Hayden committed the charged offense. The application of a Rule 403 balancing test is really not necessary if the evidence offered has no relevance. Consequently, the issue under the first factor is not whether the evidence is relevant but how compellingly it serves to make a fact of consequence more or less probable. The majority does not really discuss whether the evidence of Hayden’s conduct subsequent to his arrest served to make a fact of consequence more or less probable other than to say it was relevant to the issue of his ability to commit the offense. It may be that the majority feels that evidence related to a defendant’s arrest is admissible even if inherently prejudicial if it has any relevance at all. However, such evidence is inadmissible if it is inherently prejudicial and has little or no relevance to any issue in the case. Smith v. State, 646 S.W.2d 452, 457 (Tex.Cr.App.1983).

Unlike the majority, I would conclude that the evidence of Hayden’s violent conduct at the time of his arrest would impress the jury in some irrational but nevertheless indelible way. Although such evidence has little if any probative value with respect to whether Hayden’s appearance, conduct, and words at the time he stole the beer placed the complainant in fear of imminent bodily injury, it does constitute evidence that Hayden is a violent person generally. Such testimony would be unfairly prejudicial to the jury determining whether his actions at the time he stole the beer placed the complainant in fear of imminent bodily injury.

I agree that the proponent needed little time to develop the evidence. As the majority notes, the State had ample evidence other than Hayden’s extraneous offenses to show the jury Hayden’s conduct, appearance, and words at the time he stole the beer. I would hold that the trial court abused its discretion in admitting the evidence in question because its probative value is substantially outweighed by the danger of unfair prejudice.

The majority also suggests that evidence of Hayden’s violent conduct after his arrest was admissible as same transaction contextual evidence. Same transaction contextual evidence is deemed admissible where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Cr.App.1993). The State had no problem showing the offense for which Hayden was charged, without the necessity of showing his violent conduct following his arrest. Hayden’s actions after his arrest were not so intermixed, blended with, or connected to the primary offense for which he was charged so as to form an indivisible criminal transaction. Evidence of these subsequent offenses was also not necessary to place in context the offense for which Hayden was charged. Consequently, the evidence does not constitute same transaction contextual evidence. The majority holds that it does, without any discussion as to how the evidence meets the criteria.

I would sustain Hayden’s issues four and five and remand this cause for further proceedings.

      . The record shows that Bessette had her attorney present to advise her during her testimony.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    Johnifer Ray MUMPHREY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00026-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 6, 2004.
    Decided Jan. 19, 2005.

      Tim Cone, Gilmer, for Appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J, ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Johnifer Ray Mumphrey was convicted by a jury for an assault causing bodily injury on Theresa Reedy, a member of his family or household. See Tex. Pen.Code Ann. § 22.01 (Vernon Supp.2004-2005), § 12.21 (Vernon 2003). The trial court assessed punishment at 270 days’ confinement in jail and sentenced him accordingly. On appeal, Mumphrey contends the trial court erred with respect to several of its evidentiary rulings and in overruling his objection to the State’s jury argument. He also contends defense counsel rendered ineffective assistance. We overrule these contentions and affirm the judgment.

I. EVIDENTIARY RULINGS

The State presented two witnesses: Sheriffs Deputy Craig Strickhausen, the responding officer, and Reedy. Mum-phrey presented his sole witness, Cheryl Morgan, with whom Mumphrey and Reedy lived at the time of the offense. Morgan’s testimony focused on the fact she rarely saw Reedy take her medication for her mental disorders.

A. Expert Testimony by Deputy

In his first point of error, Mum-phrey contends the trial court erred in overruling his objection to Strickhausen’s opinion testimony that Reedy had been assaulted. The trial court’s ruling, he argues, ran afoul of Tex.R. Evid. 702 by improperly allowing the deputy to give expert opinion testimony.

1. Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App.2002); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996).

2. Testimony at Issue

Humphrey’s contention centers on the following exchange between the State’s attorney and Strickhausen:

[STATE], After talking to Ms. Reedy and Ms. Jackson, did it further your professional opinion as a deputy that an assault had taken place?
[DEFENSE]. I object, Your Honor. Bolstering.
THE COURT. Overruled.
[WITNESS], Yes, ma’am. I believed that she had been assaulted.

3. Error Was Not Preserved by Bolstering Objection

Humphrey’s objection to this testimony raised only the issue of bolstering. Bolstering occurs when one party introduces evidence for the purpose of adding credence or weight to earlier unim-peached evidence offered by that same party. Rousseau v. State, 855 S.W.2d 666, 681 (Tex.Crim.App.1993); Woods v. State, 13 S.W.3d 100, 102 (Tex.App.-Texarkana 2000, pet. ref'd). More precisely, “bolstering” is any evidence the sole purpose of which is to convince the fact-finder that a particular witness or source of evidence is worthy of credit, without substantively contributing “to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Cohn v. State, 849 S.W.2d 817, 819-20 (Tex.Crim.App.1993); Woods, 13 S.W.3d at 102. Accordingly, evidence that corroborates another witness’ story or enhances inferences to be drawn from another source of evidence, in the sense that it has an incrementally further tendency to establish a fact of consequence, should not be considered “bolstering.” Cohn, 849 S.W.2d at 820.

In order to preserve error for our review, the record must show compliance with Rule 33.1 of the Rules of Appellate Procedure:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex.R.App. P. 33.1.

Mumphrey complains the trial court improperly admitted Striekhausen’s expert testimony in violation of Texas Rule of Evidence 702. The issue raised on appeal does not concern the issue of bolstering raised at trial. Because Mumphrey’s trial objection does not comport with the issue raised on appeal, he has preserved nothing for review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999).

B. Admission of Hearsay

In his second point of error, Mumphrey complains about the admission into evidence of: a) Striekhausen’s testimony regarding statements Reedy made to him at the scene; and b) videotaped statements by Reedy recorded within an hour of the assault.

1. Standard of Review

The admissibility of an out-of-court statement under a hearsay exception is within the trial court’s discretion, subject to review only for abuse of discretion. King v. State, 953 S.W.2d 266, 269 n. 4 (Tex.Crim.App.1997); Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995).

2. Evidence at Issue

The trial court admitted, over defense counsel’s objection, Strickhausen’s testimony regarding statements by Reedy made at the scene of the alleged assault. Specifically, Mumphrey complains of the following exchanges:

[STATE]. And what did Ms. Reedy tell you about what happened that night?
[DEFENSE]. Objection. Hearsay, Your Honor.
THE COURT. Under the excited utterance rule as an exception, I’ll allow the testimony.
[WITNESS]. I asked Ms. Reedy what happened, and she stated that she had been assaulted. I asked who assaulted her, and she said Johnifer Ray Mum-phrey.
[STATE]. Did she tell you in what manner she had been assaulted?
[DEFENSE], Same objection, Your Honor.
THE COURT. I’ll give you a running objection on the statements that I’ve ruled are excited utterances and are thereby an exception to the hearsay rule.
Proceed.
[WITNESS]. I asked her how he assaulted her. She stated that he came over to the residence asking for some money. She would not give him any money, and he approached her. She went down the hallway and shut a bedroom door — went into a bedroom and shut the door and leaned against it. He forced himself into the bedroom and began assaulting her.
[STATE].... Did she tell you what he did to assault her specifically?
[WITNESS]. Yes, ma’am. She said that he hit her in the face, struck her in the face and in the back and neck area.

Strickhausen recorded a videotape that morning in which Reedy answered similar questions. Over defense counsel’s hearsay objection, the trial court admitted the videotape.

3.Excited Utterance Exception to Rule Against Hearsay

Because Reedy’s statements are out-of-court statements made to prove the truth of the matter asserted, testimony regarding these statements is hearsay. See Tex.R. Evtd. 801(d). We must look to the Rules of Evidence to see if there is an applicable exception to the rule excluding hearsay. Tex.R. Evid. 802.

The trial court ruled that Reedy’s statements to police qualified as excited utterances, an exception to the rule excluding hearsay. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2); Glover v. State, 102 S.W.3d 754, 763 (Tex.App.-Texarkana 2002, pet. ref'd).

For the excited utterance exception to apply, three conditions must be met: (1) the statement must be a product of a startling occurrence that produces a state of nervous excitement in the declar-ant and renders the utterance spontaneous and unreflecting, (2) the state of excitement must still so dominate the declar-ant’s mind that there is no time or opportunity to contrive or misrepresent, and (3) the statement must relate to the circumstances of the occurrence preceding it. Sellers v. State, 588 S.W.2d 915, 918 (Tex.Crim.App. [Panel Op.] 1979); Glover, 102 S.W.3d at 763. Each element need not be neatly drawn-out and satisfied. However, the cumulative effect of the three elements must indicate that the statement is sufficiently reliable as to warrant exception to the hearsay rule. See Sellers, 588 S.W.2d at 918; Glover, 102 S.W.3d at 763.

Mumphrey does not challenge the first or third considerations. Rather, his point of error involves only the second consideration of the excited utterance exception, that the declarant still be dominated by the emotion or stress of the event.

The excited utterance exception is based on the theory that a spontaneous statement made in response to a startling event is more reliable and, therefore, falls outside the purpose of the hearsay exclusion. See Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). An excited utterance is made without adequate time to fabricate or reflect on the event. See id. The record must show the declarant was excited or emotionally stimulated or in the grip of a shocking event so as to render the statement a spontaneous utterance. Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001).

Spontaneity is the primary factor which makes an excited utterance reliable. Glover, 102 S.W.3d at 763. When a court determines whether the statement meets the requisite spontaneity element, no single, rigid principle governs. Snellen v. State, 923 S.W.2d 238, 243 (Tex.App.-Texarkana 1996, pet. ref'd). The court will consider each case on its own particular facts. Fisk v. State, 432 S.W.2d 912, 914 (Tex.Crim.App.1968).

A court will consider the amount of time that has elapsed since the event. Salazar, 38 S.W.3d at 154. It will also consider whether the statement at issue was made in response to questioning by another. Id. Neither factor, however, is dispositive of the issue. Id. The pivotal consideration becomes whether the declar-ant was still dominated by emotions, excitement, fear, or pain of the event. Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App.2003). If the record supports such a conclusion, the spontaneous statement may be admissible even after an appreciable amount of time has elapsed since the startling event. See id. (statements admissible when victim of assault made statement twenty hours later but had not been separated from her aggressor since assault); Snellen, 923 S.W.2d at 243 (statements admissible when victim of sexual abuse made statement thirteen or fourteen hours after event had occurred).

4. Statements at Scene Qualified as Excited Utterances and, Thus, Were Admissible

The assault occurred in the early morning hours of May 29, 2003, while Reedy and Mumphrey were at the home of his sister, Linda Jackson. Reedy testified Mumphrey struck her several times and chased her through the house because she had refused to give him money. She ran from him and called 9-1-1 from a locked bathroom as Mumphrey pounded on the door. Mumphrey left before police arrived.

Although Reedy could not specify the length of time that passed between her call to 9-1-1 and the arrival of the police, she did say that “[i]t didn’t take long” for the officer to arrive. Strickhausen testified that he received a call from dispatch at 5:09 a.m. and that it took him fifteen to twenty minutes to arrive at the scene. On his arrival at the scene, Strickhausen spoke with a “very emotional” Reedy, who appeared “very shaken up, very scared, crying.”

Strickhausen began recording the videotape at 5:40 a.m., only thirty-one minutes after dispatch and before he left the scene of the assault on the morning of May 29. He testified the videotape was taken within one hour of the assault. On the videotape, Reedy is visibly distraught. She rocked back and forth, and spoke in a very shaken voice. She cried throughout the videotape, and hiccoughs accompanied her crying. Blood from her lip injury was visible on her shirt.

Even though many of the statements were made in response to Strickhausen’s questions, Reedy appears to still be acting under the stress of the assault, as evidenced by her mannerisms, voice, demeanor, and appearance, to which Strickhausen testified and which are apparent on the videotape. The trial court acted well within its discretion when it determined that the statements, both those made to Strickhausen and those recorded on the videotape, made by a distressed Reedy within one hour of the assault, were sufficiently reliable and, thus, admissible as excited utterances.

C. Refusal to Replay Videotape

In his third point of error, Mumphrey complains of the trial court’s refusal to allow defense counsel to replay the videotape for the purposes of impeachment or clarification. The record does not conclusively show that Mumphrey made a formal request to the trial court to replay the videotape. The issue arose during cross-examination of Strickhausen:

[DEFENSE]. Okay. And I believe on the videotape she said — when you asked her if anybody witnessed it, she said, “The kids did”; is that right?
[WITNESS]. No. The kids were in another room. They were not present during the assault.
[DEFENSE], Okay. But do you recall just a second ago watching the video, and you asked her, “Did anybody see this happen”?
[WITNESS]. Uh-huh.
[DEFENSE], And she said, “The kids did”; is that right?
[WITNESS]. I asked her — yeah, if the kids—
[DEFENSE], No. You asked her, “Did anybody see it?”; is that right?
[WITNESS]. Yes, I did.
[DEFENSE], On the tape?
[WITNESS], Yes, I did.
[DEFENSE]. And on the tape she said, “The kids did,” didn’t she?
[WITNESS]. No, sir, she didn’t.
[DEFENSE], Do you want to play it again?
THE COURT. Let’s not argue with the witness. The jury has the evidence. They’ve got the tape. They can make these decisions.

It is unclear whether the question, “Do you want to play it again?” was directed at Strickhausen in response to the disagreement over what Reedy said on the videotape or whether it was directed to the trial court. It is clear, however, that, regardless of the person to whom the question was directed, the trial court determined that replaying the videotape was unnecessary since the jury had seen the videotape. On appeal, Mumphrey complains of the trial court’s refusal to play the videotape again.

1. Standards of Review

We will read this point of error as raising Mumphrey’s complaint about exclusion of evidence and the trial court’s conduct of the trial. The trial court’s eviden-tiary. rulings are subject to review for an abuse of discretion. Green, 934 S.W.2d at 101-02. Likewise, the trial court enjoys broad discretion in the conduct of the trial and the questioning of witnesses; its rulings on these matters will also remain undisturbed absent an abuse of discretion. Suiter v. State, 165 Tex.Crim. 578, 310 S.W.2d 81, 82 (1958); Richardson v. State, 753 S.W.2d 759, 770 (Tex.App.-Dallas 1988, no pet.).

2. Refusal to Replay Videotape Was Not an Abuse of Discretion

First, the statement at issue was not a prior inconsistent statement by Strickhausen and therefore could not serve to impeach him on that basis. Rule 613 governs the admissibility of prior inconsistent statements for purposes of impeachment. Tex.R. Evid. 613. The purpose of impeachment evidence is to discredit the veracity of the witness.

Rule 613’s requirements were not met. There is no inconsistent statement by Strickhausen. He may have, been mistaken about who said what on the videotape, but he never made an inconsistent statement as to this particular matter. The prior inconsistent statement is not his; Reedy made the statement at issue regarding whether the children in the house witnessed the assault. This is not proper impeachment of Strickhausen based on a prior inconsistent statement by him. The videotaped statement may have been proper impeachment evidence with respect to Reedy, but not Strickhausen. The trial court did not abuse its discretion on this basis in overruling Humphrey’s request to replay the videotape.

Second, the jury received this evidence by having seen the videotape one time. Mumphrey asserts he should have been allowed to show it again. The trial court was well within its discretion to limit the number of times the videotape was shown to the jury. We overrule Humphrey’s third point of error.

D. Exclusion of Evidence

Mumphrey complains, in his fourth point of error, of the exclusion of three items of evidence: 1) information regarding Reedy’s tendency to imagine things that are not true or real, 2) Reedy’s testimony regarding whether she and Mumphrey had lived or been together since the alleged assault, and 3) evidence that Reedy had assaulted Mumphrey.

1. Standard of Review

An appellate court reviews a trial court’s decision to exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001).

2. Preservation of Error: Offer of Proof

The State argues Mumphrey failed to preserve error with respect to these contentions because he failed to make a formal offer of proof. However, we must examine the nature of the excluded evidence in order to determine what steps must be taken to preserve for our review a complaint regarding exclusion of evidence. See Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.1987); Koehler v. State, 679 S.W.2d 6, 9 (Tex.Crim.App.1984). The Texas Court of Criminal Appeals has recognized a distinction between a situation where the defendant desires to elicit certain, specific responses from a state’s witness but is precluded by the trial court from doing so, and a situation where the defendant is not permitted to question a state’s witness about a certain general subject that might affect the witness’ credibility. Virts, 739 S.W.2d at 29; Koehler, 679 S.W.2d at 9.

a. When a Formal Offer of Proof Is Necessary to Preserve Error

In the former situation, dealing with exclusion of cross-examination intended to elicit specific evidence, to preserve error for appellate review the defendant has two options: 1) have the witness testify and answer the specific questions the defendant desires to ask, but has been precluded from asking, in the presence of the jury; or 2) make an offer of proof of the questions the defendant would have asked and the answers expected had such questioning in the presence of the jury been permitted. Virts, 739 S.W.2d at 29; see Tex.R. Evid. 103(b).

In such a situation, absent one of the aforementioned methods, any claim of error is not preserved for appellate review. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998); Hambrick v. State, 11 S.W.3d 241, 243 (Tex.App.-Texarkana 1999, no pet.). This situation calls for strict application of the Rules of Evidence regarding offers of proof:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected, and
(2) Offer of proof ... the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.

Tex.R. Evid. 103(a)(2); see Hambrick, 11 S.W.3d at 243.

b. When Less Than a Formal Offer of Proof Will Preserve Error

When a trial court excludes evidence designed to call into question the witness’ “bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness’s credibility,” the defendant has less rigid requirements to preserve error for appeal. Virts, 739 S.W.2d at 29; Koehler, 679 S.W.2d at 9. To have preserved error when the issue before the appellate court is whether appellant’s counsel was denied the opportunity to question the testifying State’s witness in the presence of the jury generally about what might have affected his or her credibility, the defendant need not have shown what his or her cross-examination would have affirmatively established; such defendant must merely have established what general subject matter about which he or she desired to examine the witness during the cross-examination and, if challenged, show on the record why such testimony should be admitted into evidence. Virts, 739 S.W.2d at 29; Harris v. State, 642 S.W.2d 471, 479-80 (Tex.Crim.App.1982).

3. Evidence of Reedy’s Tendency to Imagine Things

Before his cross-examination of Reedy, defense counsel brought before the trial court his design to question Reedy on the following incident:

[DEFENSE].... I was going to ask her about an incident where she called the number on Mr. Humphrey’s cell phone thinking that it was some girl he was dating.
THE COURT. And your point would be?
[DEFENSE], Just towards credibility, towards [Reedy’s] tendency to kind of imagine things.
THE COURT. How do you know he wasn’t dating her?
[DEFENSE]. Don’t know — well, that’s what that witness would prove up.
THE COURT. I don’t think for a girlfriend to think her boyfriend was stepping out on her is something that is impeachable.
[DEFENSE].... [lit would go to bias or prejudice.
THE COURT. I see your point. I will not allow it.
THE COURT. Do you want to make a further record on it?
[DEFENSE]. Well, no. You’re telling me that I can’t go into that?
THE COURT. I’m telling you it’s not relevant.

a. Complaint Preserved for Review

From this exchange, we see that Mumphrey offered the excluded evidence to undermine Reedy’s credibility and/or to reveal Reedy’s bias or prejudice. Such a purpose renders this excluded evidence safely in the second scenario for which Mumphrey need only have established the general subject matter which he desired to pursue during his cross-examination. He indicates that the excluded evidence dealt with the theory Reedy had only imagined Humphrey’s involvement with this unnamed female. The above exchange clearly established the general subject matter Mumphrey intended to pursue on cross-examination and, therefore, we conclude that Mumphrey’s complaint of the trial court’s exclusion of this evidence is properly before us.

b. No Error In Exclusion of Evidence

Generally, and within reason, the trial court should always allow the accused great latitude to show any relevant fact that might tend to affect the witness’ credibility. See Virts, 739 S.W.2d at 29; Koehler, 679 S.W.2d at 9. Specifically, cross-examination of a testifying state’s witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided such mental illness or disturbance is such that it might tend to reflect on the witness’ credibility. Virts, 739 S.W.2d at 30. However, the trial court retains wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, and the witness’ safety. Id. at 28. Additionally, even when the trial court gives the wrong reason for its decision, we are bound to sustain the trial court’s decision if it is correct on any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

Although Virts holds that evidence of a mental illness is proper evidence to reflect on a witness’ credibility, Mumphrey’s specific proffer here was not evidence of a mental illness. We therefore agree with the trial court that such evidence was not relevant. If Mumphrey’s purpose was to show Reedy’s mental condition, that condition was shown by other evidence. Reedy testified on direct examination she is a paranoid schizophrenic. She also testified that her illness resulted in “major depression” and caused her to “hear voices.” The evidence proffered by Mumphrey did not show Reedy’s mental condition, but even if it did, it would have been cumulative. See Tex.R. Evid. 403.

Further, the trial court was within its discretion in excluding this proffered evidence on the basis that such testimony would be prejudicial or run the risk of confusion of the issues. Tex.R. Evid. 403. The trial court kept the focus on the most relevant issues and did not allow Mum-phrey to bring in collateral matters concerning the couple’s relationship. We do not find an abuse of discretion in excluding the cumulative, potentially prejudicial or confusing evidence of Reedy’s suspicion that Mumphrey had another girlfriend. We overrule Mumphrey’s contention.

4. Evidence of Reedy and Mum-phrey’s Reconciliation

Before his cross-examination of Reedy, Mumphrey also alerted the trial court of his intent to question Reedy on the issue of her reconciliation and continued relationship with him after this assault:

[DEFENSE]. Okay. I think it’s already been covered. And it was brought up about her, you know, not being together with him, and we’re certainly going to bring in that they got back together. I don’t know if that’s extraneous but—
THE COURT. Since this offense occurred?
[DEFENSE]. Yes.
THE COURT. Not relevant.

Mumphrey argued that, because the State had questioned Reedy on the length and nature of the couple’s relationship before the incident, the State had opened the door to such testimony. The trial court repeated its conclusion that an alleged reconciliation was “not relevant to whether or not this event happened” and went on to explain that any testimony from direct examination regarding the nature of the couple’s relationship related only to the time before the assault and that such testimony did not open the door to allow evidence of reconciliation after the assault.

The excluded evidence in this case is that type for which the proponent must make an offer of proof to preserve error. This evidence was designed to elicit certain specific responses, responses which would not have any bearing on Reedy’s bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, .or evidence that might go to any impairment or disability affecting credibili-¡ ty-

The record does not contain an offer of proof of the evidence about which Mum-phrey complains. Without such an offer, we cannot determine whether there was error in its exclusion. See Hambrick, 11 S.W.3d at 243. We overrule Mumphrey’s contention.

5. Evidence of Reedy’s Prior Assaults on Mumphrey

Mumphrey urged the trial court to allow testimony of prior assaults by Reedy against him to show her “bias or prejudice” or to reveal her “motive to fabricate” this incident. The trial court concluded that, based on the evidence before the court at the time, such alleged incidents were not relevant.

a. Complaint Preserved for Review

Viewing the record and applying the law on preservation of error in a manner consistent with the approach enunciated in Virts, we conclude Mumphrey did preserve this complaint for appeal. See Virts, 739 S.W.2d at 28-29. The testimony at issue was aimed at revealing Reedy’s bias or motive to fabricate and, therefore, trial counsel preserved error when he demonstrated the general subject matter about which he wanted to cross-examine Reedy. Id.

b. No Error in Exclusion of Evidence

The Rules of Evidence provide:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

Tex.R. Evtd. 608(b).

Under Rule 609, a prior criminal conviction can be used to attack the credibility of a witness only if the crime was a felony or involved moral turpitude. Tex.R. Evid. 609(a). There was no showing that any of Reedy’s alleged assaults on Mumphrey resulted in a felony conviction or was a crime involving moral turpitude. Such alleged assaults were therefore not admissible under this rule.

Mumphrey contends, however, that such alleged assaults were admissible to show Reedy’s “bias or prejudice” or to reveal her “motive to fabricate” this incident. We recognize the trial court’s wide latitude to limit cross-examination out of concern for harassment, prejudice, or confusion of issues. Although evidence of alleged prior assaults, for which there were no charges, arguably might have some bearing on Reedy’s motive to fabricate, the danger is much higher that such evidence would serve to confuse the matters before the jury. See Tex.R. Evid. 403. Evidence regarding Reedy’s alleged, unreported assaults against Mumphrey necessarily brings with it collateral matters beyond the purpose stated by trial counsel. The trial court’s ruling regarding this evidence centered on relevance and did not fall outside the zone of reasonable disagreement. Salazar, 38 S.W.3d at 151. The trial court did not abuse its discretion by excluding this evidence. We overrule Humphrey’s point of error to the contrary.

II. JURY ARGUMENT

A. Improper Jury Argument

Mumphrey complains of the following argument the State made to the jury:

Ms. Reedy’s emotional condition on the tape, you guys saw that. You saw how scared she was, how she was crying. She was very scared of the defendant at this time.

Mumphrey seizes on the language “at this time” to contend the State indicated that Reedy was scared of Mumphrey at the time of trial. Mumphrey objected to the argument after the jury retired to deliberate.

The trial court understood the State’s argument to refer to that time, a reference to the time immediately following the assault and during the videotaped interview. Mumphrey requested an opportunity to reopen in order to address the argument and to offer the previously excluded evidence of reconciliation. The trial court refused his request.

B. Mumphrey Did Not Preserve Error

Generally, an objection must be made as soon as the ground for objection becomes apparent. Ford v. State, 500 S.W.2d 827, 829 (Tex.Crim.App.1973). More specifically, in order to preserve jury argument error, an objection to the improper argument must be made at the time of the argument. Valencia v. State, 946 S.W.2d 81, 83 (Tex.Crim.App.1997); Johnson v. State, 604 S.W.2d 128, 132-33 (Tex.Crim.App. [Panel Op.] 1980); Joines v. State, 482 S.W.2d 205, 208 (Tex.Crim.App.1972). An objection to the state’s argument made after the jury has retired does not preserve error. Castillo v. State, 362 S.W.2d 320, 322 (Tex.Crim.App.1962).

Here, defense counsel objected to the State’s closing argument following what constitutes a full page in the record of further argument by the State and after the jury was excused to deliberate. Therefore, the error in the State’s argument, if any, is not properly before this Court for review.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Mumphrey cites several alleged errors as rendering trial counsel’s performance deficient. He concedes that for many such alleged errors there may have been a tactical reason for those acts or omissions. He focuses his argument, however, on trial counsel’s failure to “protect the record” by making an offer of proof regarding the excluded evidence.

In order for an appellant to show he or she received ineffective assistance of counsel, such appellant must satisfy a two-pronged test: 1) it must be shown that counsel’s performance fell below an objective standard of reasonableness by identifying acts or omissions showing that counsel’s performance was deficient; and 2) it must be shown that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).

Having concluded Mumphrey’s trial counsel did preserve error with respect to at least two of the three instances of which Mumphrey complains, we must determine whether counsel’s performance was deficient based on his failure to preserve error with respect to evidence of Reedy' and Mumphrey’s reconciliation after' the assault.

We hold the trial court’s determination that evidence of reconciliation was irrelevant was not an abuse of discretion, even if the error would have been properly before us. Having failed to demonstrate that evidence of reconciliation was admissible in this context, Mumphrey has failed to demonstrate that counsel’s performance fell below an objective standard of reasonableness and, subsequently, would be unable to demonstrate a reasonable probability that, but for the failure, the trial’s outcome would have been different. This point of error is overruled.

IV. SUMMARY AND CONCLUSION

Mumphrey’s claimed error in allowing Strickhausen to express an opinion on whether an assault had occurred was not preserved. . Reedy’s statements to Strick-hausen at the scene and the videotaped statements she made within one hour of the assault were admissible under the excited utterance exception to the rule against hearsay. The trial court’s refusal to allow Mumphrey to replay the videotape was not an abuse of discretion. Neither was it an abuse of discretion to exclude evidence Reedy was suspicious that Mum-phrey had another girlfriend or that Reedy had assaulted Mumphrey. Complaint about the exclusion of evidence that Mum-phrey and Reedy reconciled after the assault was not preserved for our review. Mumphrey also failed to preserve his complaint concerning the State’s closing argument. Despite the failures to preserve alleged error, Mumphrey received effective assistance of counsel.

We affirm the judgment.

      . Reedy testified at trial. Therefore, the concerns raised by the recent decision by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), are not relevant in this case.

      . Even if the videotape had been inadmissible hearsay, its introduction would be harmless since the same statements were admitted into evidence through Reedy’s own testimony that Mumphrey assaulted her. See Tex.R. Evid. 103(a); Tex.R.App. P. 44.2(b). The trial court’s overruling of an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998).
      Mumphrey's next point of error also invokes consideration of the doctrine of curative admissibility and the possibility that, by requesting to replay the videotape, he waived any error in admitting the videotape. Essentially, the doctrine stands for the proposition that error regarding improperly admitted evidence is waived if that same evidence is introduced later by the defendant. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.Crim.App.1993); Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App.1985). A defendant may not complain of the admission of testimony elicited by that defendant. Dyche v. State, 490 S.W.2d 568, 569 (Tex.Crim.App.1973). When a defendant elicits the same testimony to which he or she has earlier objected, such defendant is not in a position to complain on appeal. Maynard, 685 S.W.2d at 65.
      There are exceptions to the application of this doctrine, however. "[Ejrror is not waived when the evidence is brought in later in an effort to meet, rehut, destroy, deny or explain the improperly admitted evidence.” Rogers, 853 S.W.2d at 35. We will treat Mumphrey’s stated purpose in requesting to replay the videotape as such an effort since he was arguably attempting to clarify what Reedy had said on the videotape.

      . Mumphrey cites Tex.R. Evid 801(e)(1)(A) in support of his contention. However, this rule pertains to prior statements by a witness which are not hearsay and is inapplicable because the witness, Strickhausen, did not make the prior statement and because the statement in dispute was not made under oath at a trial, hearing, or other proceeding. See Tex.R. Evid. 801(e)(1)(A).

      . The jury requested to see the videotape again. It appears this request was granted.

      . We recognize that an argument, albeit a tenuous one, can be made that evidence of reconciliation may undermine Reedy's credibility regarding the May 29 assault. Even if we analyzed the evidence as within the category of excluded evidence for which no offer of proof is required to preserve error, we would overrule Mumphrey’s contention. From the description of the nature of the excluded evidence, we would conclude the trial court’s ruling that the evidence was not relevant did not fall outside the zone of reasonable disagreement. See Salazar, 38 S.W.3d at 151. Any evidence regarding whether Reedy and Mumphrey continued their relationship would not be relevant to whether the assault of May 29, 2003, occurred. The trial court did not abuse its discretion by excluding evidence of Reedy and Mumphrey’s alleged reconciliation.

      . We concentrate our analysis on those errors noted in Humphrey’s brief written by appellate counsel. We agree with the State’s position that the specific errors raised in Humphrey's pro se handwritten affidavit attached to his appellate counsel’s brief should not be considered. Mumphrey has no right to hybrid representation. Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App.1977); Reeves v. State, 46 S.W.3d 397, 400-01 (Tex.App.-Texarkana 2001, pet. dism'd).

      . We note the Texas Court of Criminal Appeals’ decision in Bone v. State, 77 S.W.3d 828 (Tex.Crim.App.2002). In Bone, the court concluded that, under ordinary circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Id. at 833.


author: Chief Justice MORRISS.

text:
    Pete REED and Wife, Carla Reed, Appellants, v. Paulette WRIGHT, Appellee.
    No. 06-03-00127-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 8, 2004.
    Decided Jan. 20, 2005.

      M. Wade Kimmel, Winford L. Dunn Jr., Dunn, Nutter & Morgan LLP, Texarkana, for Appellants.
    Troy A. Hornsby, Miller, James, Miller and Hornsby, LLP, Texarkana, for Appel-lee.
    Before MORRISS, C.J., ROSS and CORNELIUS, JJ.

       William J. Cornelius, Retired, Chief Justice, Sitting by Assignment

   OPINION

Opinion by

Chief Justice MORRISS.

Two roads diverged in the east Texas piney woods. In 1985, one of them, Goff Road, had been declared public. The other, Cherry Lane, the subject of this appeal and formerly the only way the public could access Goff Road, has now been declared private by the trial court after a nonjury trial between appellants, Pete and Clara Reed, and appellee, Paulette Wright. The uncontradicted evidence shows that, though Cherry Lane has not been heavily traveled, the public used it for many years — at least twenty-five years before either party entered the picture. And that makes all the difference. Because we hold the evidence conclusively proves Cherry Lane was impliedly dedicated, we reverse the trial court’s judgment and render judgment that Cherry Lane is a public road.

In 1983, Wright purchased a fifteen-acre tract of land from Richard and Mary Couch. Cherry Lane runs across that tract, along its north edge. According to the Reeds and other neighbors, Cherry Lane had been used by the public since the early 1950s or before, and Bowie County had maintained and repaired it.

Later in 1983, Charles R. Goff, an owner of land to Wright’s south, sued Wright concerning a gate she had erected and locked, blocking public access to the road known as Goff Road, which ran south from the west end of Cherry Lane, across the western edge of Wright’s property. Following a 1985 jury trial, that trial court declared Goff Road public. While the judgment in that suit did not address whether Cherry Lane was a public road, the only way the public could access Goff Road was by using Cherry Lane.

In 1999, the Reeds purchased Lots One and Two in Block One of Meadow Brook Heights Addition — lots which are located on the north side of Cherry Lane at its west end — and built a house there. Although the Reeds could have used exclusively other roads to access them property, they also used Cherry Lane for that purpose. When Wright decided to block access to Cherry Lane, this lawsuit resulted. After a bench trial, the trial court declared Cherry Lane private.

We reverse the trial court’s judgment and render judgment that Cherry Lane is a public road. We reach that result because we hold (1) implied dedication was properly at issue at trial, and (2) implied dedication of Cherry Lane was conclusively proven, due to lack of any evidence to rebut the presumption of dedication, which presumption arose since conclusively (A) the origin of Cherry Lane is shrouded in obscurity, and (B) before 1983, the public had made long and continuous use of Cherry Lane.

1. Implied Dedication Was Properly at Issue

Before we discuss the substance of implied dedication, we address a procedural matter. On appeal, Wright contends the Reeds’ pleadings fail to allege implied dedication. The pleadings alleged that Cherry Lane had been dedicated to public use, but did not specifically plead implied dedication. The record does not indicate that any special exceptions were made concerning this issue.

Pleadings are sufficient if they provide the opponent with fair and adequate notice. Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982); Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 66 (Tex.App.-Texarkana 2004, pet. filed). Pleadings provide fair and adequate notice if they contain information sufficient to allow an opposing party to adequately prepare for trial. Roark, 633 S.W.2d at 810. Further, pleadings are to be liberally construed. Id. The Reeds’ pleadings contending the road had been dedicated were sufficient to raise the issue of implied dedication.

Even if the pleadings had been insufficient to raise implied dedication, the issue was tried by consent. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Tex.R. Civ. P. 67. Trial by consent applies in the exceptional case where it clearly appears from the record as a whole that the parties tried an unpled issue. Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no pet.); Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex.App.-Houston [1st Dist.] 1993, writ denied). To determine whether an issue was tried by consent, appellate courts “must examine the record not for evidence of the issue, but rather for evidence of trial of the issue.” Mastin, 70 S.W.3d at 154; Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex.App.-Waco 1997, no writ). Each side submitted a trial brief addressing implied dedication. The trial court addressed implied dedication in its findings of fact. At a minimum, the parties tried the issue of implied dedication by consent. Implied dedication was properly at issue. We now turn to the substance of the implied dedication issue.

2. Implied Dedication Was Conclusively Proven

The Reeds assert the evidence conclusively proved implied dedication. We agree, because we hold there was no evidence to rebut the presumption of dedication which arose from the conclusive proof that (A) the origin of Cherry Lane was shrouded in obscurity, and (B) before 1983 the public made long and continuous use of Cherry Lane.

The Reeds áppeal from a bench trial. Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are reviewable for evidentiary sufficiency by the same standards that are applied in reviewing evidentiary sufficiency to support a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

When deciding a legal sufficiency point concerning a fact issue, we must consider all the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 888-89 (Tex.App.-Texarkana 2004, pet. denied). We disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). A no-evidence point -will be sustained when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

The trial court addressed only dedicatory intent in finding Cherry Lane had not been dedicated. But since the trial court addressed that element, any omitted findings will be deemed to support the judgment if evidence exists to support such findings. See Tex.R. Civ. P. 299; Lindner v. Hill, 691 S.W.2d 590, 592 (Tex.1985); Norris v. Norris, 56 S.W.3d 333, 345 (Tex.App.-El Paso 2001, no pet.).

Dedication is presumed when the public engages in long and eon-tinuous use of a road whose origin is “shrouded in obscurity.” Graff, 947 S.W.2d at 637; Fazzino, 836 S.W.2d at 274; see O’Connor, 339 S.W.2d at 882; Supak, 56 S.W.3d at 790.

Because the evidence conclusively establishes (A) the origin of Cherry Lane is shrouded in obscurity, and (B) before 1983 the public made long and continuous use of Cherry Lane, a presumption arose that all elements of proof, essential to establish implied dedication, in fact existed. We find no evidence that tended to rebut that presumption.

A. Cherry Lane’s Origin Is Shrouded in Obscurity

The origin of Cherry Lane is “shrouded in obscurity,” since the record provides no evidence of the identity and no direct evidence of the intent of the owner who originally established the road. Wright contends the presumption of dedication does not apply because William Crain testified he built the road 1965 when he was leasing the field currently owned by Wright. Although Crain did state that he “built” the road, he also testified the “old road” had been there when he “built” it in 1965 and that his business had used the road since 1963, two years before he “built” the road. Crain’s father-in-law bought the adjoining Twitty Nursery tract in 1948, and Crain became involved in the business in 1955. In 1998, Crain sold the Twitty Nursery tract to his son-in-law. Crain testified he leased the field currently owned by Wright from 1963 until 1977 or 1978. Crain testified as follows:

[Wright’s Counsel]: Who built that road?
[Crain]: I did.
[Wright’s Counsel]: When did you build it?
[Crain]: When we — back when we started that farm. The old road was there, but it wasn’t much. And in order to get — in bad weather ...
[Wright’s Counsel]: So at the time you built the road, who owned that dirt on which you were building the road.
[Crain]: I don’t know.
[Wright’s Counsel]: And that’s what year when you’re building that road?
[Crain]: It was back in probably '65.

Wright also claimed to have “built” the road. The testimony clearly indicates that Crain did not originate the road, he only improved it. Further, Cherry Lane appears by name on the plat of Meadow Brook Heights filed in 1951. The evidence conclusively establishes that the origin of the road is shrouded in obscurity and there is no evidence of the identity, nor any direct evidence of the intent, of the property’s owner at the time the road was first established.

B. There Was Long and Continuous Public Use of Chem'y Lane Before 1983

In addition to the obscurity of the road’s origin, the uncontradicted evidence established that Cherry Lane had been used by the public for a long and continuous period before Wright’s 1983 purchase of the property. Crain, Pam McKamie, Tiffin Reed, and Pete Reed testified that they had been familiar with the area since the late fifties or early sixties and that the public had used the road since that time. Crain testified the road had been used by members of the public, many of whose names Crain did not know. Tiffin Reed, Pete Reed’s father, testified he had been familiar with the area since around 1951 and had lived nearby since 1958. Tiffin Reed testified he had used Cherry Lane since 1958 and had never asked permission to do so. Ms. Goff stated in her deposition, which was introduced at trial, that there had never been a dispute concerning whether Cherry Lane was a public road and that they never requested permission to use it. According to McKamie, the daughter of the Goffs, anybody could use Cherry Lane any time they wanted. McKamie testified that her family had owned their tracts for approximately fifty-five or fifty-six years and that, until recently, her family had used Cherry Lane approximately twice a day since the 1950s. Crain testified that B.L. Benny, a radio announcer in Texarkana years ago, customarily drove down Cherry Lane in the morning to a spot where he read his newspaper and that a lot of “par-kers” would use Cherry Lane at night. In addition, employees of Twitty Nursery as well as customers of Twitty Nursery used Cherry Lane to access certain parts of the nursery.

Wright presented no evidence disputing the public use of Cherry Lane before her purchase of the property in 1988. While Wright did testify that Bowie County has never maintained Cherry Lane, she did not testify as to whether members of the public used Cherry Lane before she owned the property. All of the other witnesses called by Wright limited their testimony to events after 1983. But events after 1983 are not at the crux of this inquiry.

When viewed in a light most favorable to the verdict, the evidence at trial conclusively established that the public used Cherry Lane for at least twenty-five years before Wright purchased the property. That constituted long and continuous public use.

Conclusion

Since the origin of the road is shrouded in obscurity, the evidence of long and continuous use by the public raises a presumption that Cherry Lane had been dedicated to public use. There is no evidence that rebuts the pre-1983 presumption of dedication. Because we hold Cherry Lane is-a public road due to its implied dedication, we decline to address the remaining points of error raised by the Reeds. We reverse the judgment of the trial court and render judgment that Cherry Lane is a public road.

      . Cherry Lane is a one-lane dirt road on Bowie County property owned by appellee, Paulette Wright. Wright refers to the road as "my lane” and testified that appellants, Pete and Clara Reed, installed a sign labeling the street "Cherry Lane.” For the sake of convenience, we will call the road "Cherry Lane.”

      . "Proof that a road is only slightly traveled by the public does not prove the road is not public.” Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex.App.-Waco 1981, writ ref'd n.r.e.). “If it is free and open to all who have occasion to use it, it is a public road.” Id.

      . Wright's original deed from the Couches specified the property was "subject to a 30 ft. road easement, said easement being 30' South of and parallel to the North line, and 30' East of and parallel to the West line of said tract.” The "easement” along the north line coincides with Cherry Lane, while the "easement” along the west line coincides with Goff Road. On June 4, 1985, the Couches executed a correction deed removing the reference to the northerly easement.

      .The Reeds contend Wright should have contested the public status of Cherry Lane at the time Goff Road was litigated. Because of our disposition of this appeal, we do not reach that issue.
      Currently all neighbors have access to their property by means other than Cherry Lane, with one exception. The one neighbor with access only by way of Cherry Lane is Steve Connor — not a party to this action — who owns Lot 31, Block Five, Meadow Brook Heights Addition, an unimproved lot on the north side of Cherry Lane, just east of its midpoint.

      . The trial court found ”[t]here was no intention to dedicate the land to public use. The road at issue is a very rough dirt path requiring four-wheel drive to access it. It is a single lane, not large enough for two cars to pass one another.” While evidence certainly exists tending to show Wright did not intend to dedicate Cherry Lane, our analysis leads us to the conclusion that Cherry Lane was impliedly dedicated before Wright purchased the land in 1983. In our view, the intention at the heart of this case was not Wright’s, but the intention of one or more of Wright’s predecessors in title.

      . Under the common law, a property owner can either expressly or impliedly dedicate property to a public use. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 77 S.W.3d 487, 503 (Tex.App.-Texarkana 2002, pet. denied). When it is alleged that a particular landowner impliedly dedicated property to a public use, four elements must ordinarily be proven:
      (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) [the landowner] was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication.

        Lindner, 691 S.W.2d at 592 (quoting Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984)); Machala v. Weems, 56 S.W.3d 748, 760 (Tex.App.-Texarkana 2001, no pet.); Stein v. Killough, 53 S.W.3d 36, 43 (Tex.App.-San Antonio 2001, no pet.).

      .We recognize the existence of opinion language from the Texas Supreme Court that the presumption falls short of a full presumption of dedication. Specifically, that court stated that "a presumption of acquiescence is raised when the origin of the user [sic] by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use.” O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882 (1960) (emphasis added). Later in the same opinion, the court stated "the law raises a presumption that the requisite intention and acts disclosing it were present.” Id. at 883 (emphasis added). However, the court in O’Connor did not expressly consider the other elements of dedication in affirming the finding of implied dedication. This Court and the First District Court of Appeals have interpreted O'Connor to hold that, if the origin of the road is shrouded in obscurity, long and continuous public use establishes a presumption of dedication, not just the intent to dedicate. Graff v. Whittle, 947 S.W.2d 629, 637 (Tex.App.-Texarkana 1997, writ denied); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The Fourteenth District Court of Appeals held in Supak that, when the origin of the road is shrouded in obscurity, a presumption of donative intent arises; and that court considered at least one of the other factors of implied dedication. Supak v. Zboril, 56 S.W.3d 785, 790 (Tex.App.-Houston [14th Dist.] 2001, no pet.). We maintain our position as stated in Graff that, if the origin of the road is shrouded in obscurity and there is no contrary showing of the owner's intention, long and continuous public use raises a presumption of dedication.
      Even if the presumption supplies only the landowner’s intent to dedicate the road to public use, we believe the remaining elements have been proven as a matter of law. The obscurity shrouding the origin of Cherry Lane also shrouds the identity and intent of the owner or owners who originally established the roadway. Logically, the obscurity also shrouds any assessment of any previous owner's competency. "There is a rebuttable presumption that a person is mentally competent unless a judicial finding to the contrary is made under the Texas Probate Code." Tex. Health & Safety Code Ann. § 576.002 (Vernon 2003). Since there was no claim or evidence of incompetency of any prior owners, we conclude that element was conclusively satisfied. The public's long and continued use of Cheriy Lane, without contrary evidence, also conclusively establishes the public acceptance and public benefit elements. Acceptance of a dedication can be implied from public use of the land. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978); Stein, 53 S.W.3d at 41-42; Gutierrez v. County of Zapata, 951 S.W.2d 831, 842 (Tex.App.-San Antonio 1997, no writ); see Camilla Twin Harbor Vol. Fire Dep’t, Inc. v. Plemmons, 998 S.W.2d 413, 415 (Tex.App.Beaumont 1999, no pet.). Because the Reeds conclusively proved the public continuously used the road for at least twenty-five years before Wright's 1983 purchase of the property, the evidence conclusively establishes that the public accepted the implied dedication of Cheriy Lane. Thus, even if the presumption supplies only the first element involving the intention of the landowner, the evidence conclusively established that the remaining elements of implied dedication were met before Wright's purchase of the property.

      . Whether the county maintained Cherry Lane was disputed at trial.

      . Once a dedication is accepted, a landowner cannot revoke the dedication or use the property contrary to the original purpose of the dedication. See Lindner v. Hill, 673 S.W.2d 611, 616 (Tex.App.-San Antonio 1984), aff'd, 691 S.W.2d 590 (Tex.1985); Moody v. White, 593 S.W.2d 372, 378 (Tex.App.-Corpus Christi 1979, no writ); Edmiston v. City of Harlingen, 347 S.W.2d 742, 744-45 (Tex.Civ.App.-San Antonio 1961, writ ref'd n.r.e.). “Once a road is dedicated to public use, that road remains subject to that use unless it is abandoned.” Lindner, 691 S.W.2d at 592. Abandonment is not in issue here.

      . Cf. O'Connor, 339 S.W.2d at 882 (approximately seventy years); Supak, 56 S.W.3d at 790 (approximately sixty-seven years); Steel v. Wheeler, 993 S.W.2d 376, 379 (Tex.App.-Tyler 1999, pet. denied) (approximately fifty-seven years); Graff, 947 S.W.2d at 637 (approximately forty years); Fazzino, 836 S.W.2d at 274 (approximately sixty years); Love v. Olguin, 572 S.W.2d 17, 22 (Tex.Civ.App.-El Paso 1978, writ ref'd n.r.e.) (approximately forty-five years); Compton v. Thacker, 474 S.W.2d 570, 571-72 (Tex.Civ.App.-Dallas 1971, writ ref’d n.r.e.) (approximately twenty years of use on one portion of the road and over fifty years on the other portion).

      . Whether the public has used Cherry Lane since 1983 was the subject of conflicting evidence at trial.


text:
    John F. SIMPSON, Appellant, v. AFTON OAKS CIVIC CLUB, INC., et al., Appellees.
    No. 06-02-00102-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 7, 2004.
    Decided Jan. 20, 2005.
    Rehearing Overruled Feb. 15, 2005.
    Gary L. Crofford, Law Office of Gary L. Crofford, Houston, for Appellant.

      John Bradley Mitchell, Marc D. Markel, Roberts, Markel, Guerry, PC, Stephanie L. Quade, Houston, for Appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

The issue is whether a voluntary property owners’ association lawfully amended the deed restrictions in the subdivision to establish a mandatory property owners’ association with the right to establish and collect mandatory assessments. On our first consideration of this appeal, we dismissed the appeal because the other property owners were necessary parties to the action and were not joined. Simpson v. Afton Oaks Civic Club, Inc., 117 S.W.3d 480, 484 (Tex.App.-Texarkana 2003). The Texas Supreme Court reversed, noting that Afton Oaks had not complained about the absence of the other property owners at the trial court level and reasoning that, if the property owners’ association was exposed to multiple suits, that was because of its own inaction, and therefore remanded the case to this Court to consider the merits of the appeal. Simpson v. Afton Oaks Civic Club, Inc., 145 S.W.3d 169 (Tex.2004).

John Simpson, a Kettering Oaks homeowner, sought a declaratory judgment that the petition amending the restrictions was void. He also asked the court to issue an injunction prohibiting Afton Oaks from attempting to collect assessments in reliance on that petition and sought a monetary judgment for assessments wrongfully collected. The court rendered a summary judgment in favor of Afton Oaks. Simpson appeals.

The initial and dispositive question is whether the subdivision could use the procedures set out by Tex. PROp.Code Ann. § 204.006 (Vernon Supp.2004-2005) to amend the restrictions — when the deeds provided a different, and specific, procedure to be followed in making such an amendment.

The Code provides that, if (1) existing restrictions do not provide for a property owners’ association, and (2) require approval of more than sixty percent of the owners to modify the original dedicating instrument, then a petition to add to or modify the existing restrictions for the sole purpose of creating and operating a property owners’ association with mandatory membership, mandatory or special assessments, and equivalent voting rights for each of the owners is effective (if several other conditions are also met).

Afton Oaks is confronted with a single, insurmountable problem. Even assuming the dedicating instrument does not provide for a property owners’ association, its terms provide that to amend the restrictions requires only a simple majority — not more than sixty percent. Thus, the second part of the statute is not satisfied, and it will not support the petition filed in this case.

Afton Oaks suggests that, because a specific window for amendments is set out by the dedicating document — six months every ten years — the procedures in the Code should take the place of the procedures set out by the restrictions and allow amendment at any time as permitted by the Code. There is no support for this position either in caselaw or the Code. In fact, the Code specifically states otherwise. Section 204.003 provides that, if the document creating restrictions contains an express designation setting out procedures to follow in amending or modifying those existing restrictions — the document prevails over the provisions of the Code. Tex. PROp.Code Ann. § 204.003 (Vernon Supp.2004-2005); see Brooks v. Northglen Ass’n, 141 S.W.3d 158, 167 (Tex.2004).

There is no suggestion or argument from any source that the procedures used by Afton Oaks meet the requirements of the restrictions. Afton Oaks simply dislikes the time window limiting its options and thus seeks judicial approval to ignore it in favor of a statute that it finds more palatable.

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999).

In this case, the undisputed summary judgment evidence was that the restrictions provided an express method for amendment and that Afton Oaks did not amend the restrictions according to that procedure. Because of our resolution of this issue, we need not address the validity of the signatures on Afton Oaks’ petition to amend the restrictions.

We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.