author: JAMES T. WORTHEN, Chief Justice.

text:
    Richard MALATT, Appellant, v. C & R REFRIGERATION and Robert Reeves, Appellees.
    No. 12-04-00302-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 12, 2005.

      Jeff Barnhill, Robert T. Cain, Zeleskey, Cornelius, Hallmark, Roper & Hicks, L.L.P., Lufkin, for appellant.
    W. Stephen Shires, Shires & Mettauer, Center, for appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Richard Malatt appeals the trial court’s take-nothing judgment entered in favor of Appellees, C & R Refrigeration and Robert Reeves. Malatt raises five issues on appeal. We affirm.

Background

Appellees are the manufacturers of industrial freezers. Two Ecuadorian corporations, Mundi Hielo, S.A. and Pesquería Progalca, S.A. (collectively “Mundi Hielo”) purchased from Appellees an Individual Quick Freeze (“IQF”) machine, which is designed to freeze individual pieces of food very rapidly. The terms of purchase required Mundi Hielo to make a $62,500 deposit on the machine prior to its construction, an additional payment when construction was half completed, and a final payment prior to Appellees’ shipping the machine to Mundi Hielo. Mundi Hielo paid the initial deposit to Appellees, who began to construct the IQF machine. However, Mundi Hielo failed to make any further payments. Appellees ceased production on the machine and refused to return the initial deposit to Mundi Hielo. Subsequently, Appellees and Mundi Hielo entered into a settlement agreement. Mundi Hielo assigned Malatt its interest in the $62,500 deposit being held by Appel-lees.

The instant lawsuit arises from a dispute concerning a provision in the settlement agreement. The settlement agreement states, in pertinent part, as follows:

3. C & R’s Performance Obligations
(c) C & R shall use its best efforts to market and sell, in an expeditious and commercially reasonable manner, the IQF Machine currently located in the C & R facility in Center, Texas, and for which Mundi has paid to C & R a deposit of $62,500. C & R shall refund the deposit to Mundi, or its nominee, net any offsets, immediately upon sale of the IQF Machine to a third party.

After the agreement was reached, the shrimp market collapsed. Over the next three years, Appellees were unable to sell the IQF Machine. On January 22, 2003, Appellees sued Malatt for breach of contract and sought to rescind the settlement agreement. Malatt filed a counterclaim, alleging, among other things, breach of contract on Appellees’ part, and sought attorney’s fees.

Following a bench trial, the trial court entered a final judgment in favor of Appel-lees, ordering that C & R be discharged from its obligation to use its best efforts to sell the IQF machine. The trial court’s findings of fact and conclusions of law state, in pertinent part, as follows:

Findings of Fact

The court makes the following findings of fact in this case:

8. The Settlement Agreement called for a best effort on behalf of C & R and/or Reeves to sell the subject IQF System in a commercially reasonable and expeditious manner; further, if the IQF Machine were sold, C & R was to pay the deposit, net any offsets, to Malatt.
9.The Settlement Agreement did not require C & R and Reeves to actually sell the IQF.
10. Due to the unique nature of the IQF, combined with the current state of the shrimp market to which C & R sells, there is simply no buyer for the IQF.
11. The IQF has not been sold; it remains at C & R’s facilities.
12. Under the Settlement Agreement, Malatt was entitled to the deposit only when the IQF was sold.
13. C & R and Reeves are not obligated to refund the deposit to Malatt.
14. Since entering into the Settlement Agreement, in attempting to sell the IQF, C & R and Reeves over a period of three plus years did the following:
(1) bought advertising in shrimp and seafood publications;
(2) called on numerous contacts in the shrimping industry from a listing known as the Shrimp Directory to market IQF Machines;
(3) made numerous quotes concerning IQF Machines to many potential buyers;
(4) made trips to direct market in person IQF Machines, including the subject IQF; and
(5) put IQF Machines on its website.
15. Such efforts were sufficient to satisfy the best efforts obligation of C & R and Reeves in the Settlement Agreement.
16. C & R and Reeves in fact used their best efforts to sell the subject IQF.
17. C & R and Reeves have fulfilled their obligation to use their best efforts to sell the subject IQF machine.
18. Moreover, due to market forces which were not predictable at the time and were beyond the control of either party to the Settlement Agreement, the provisions calling for the effort to sell the subject IQF System became unduly burdensome and in fact unworkable, despite due diligence on behalf o[f] C & R and Reeves.
19. For example, although manufactured for use in Latin America, the un-marketability of a product whose components can no longer be warranted is not peculiar to Latin America and would be universally the case. This put everyone in the position of wanting the deposit but no one wanting the partially built IQF System.
20. C & R and Reeves fulfilled the best efforts obligation of the Settlement Agreement and they are discharged from their obligations under the Settlement Agreement.

Conclusions of Law

The court makes the following conclusions of law in this case:

3. C & R and Reeves did not breach the Settlement Agreement.
4. C & R’s and Reeves’ efforts over a three year plus period to sell the IQF were sufficient to satisfy the best efforts obligation under the Settlement Agreement.
5. C & R and Reeves have discharged their obligation to use their best efforts to sell the subject IQF.

This appeal followed.

Contractual Construction

In his first issue, Malatt argues that the sale of the IQF machine was not a condition precedent to Appellees’ obligation to return the deposit, but rather, related solely to the timing of Appellees’ obligation to refund the deposit.

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 398 (Tex.1983); see also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Id. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. Id.; Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex.1962).

If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Coker, 650 S.W.2d at 393. An ambiguity may be either “patent” or “latent.” See CBI, 907 S.W.2d at 520. A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter, and an ambiguity appears by reason of some collateral matter. See id.

The interpretation of an unambiguous contract is a question of law, which we review de novo. See MCI Telecomm. Corp. v. Texas Util. Elec. Co., 995 S.W.2d 647, 650 (Tex.1999). Ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; rather, for an ambiguity to exist, both interpretations must be reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex.2000).

In interpreting a contract, we must presume that the parties thereto intended every clause to have some effect; therefore, we consider each part of the document with every other part of the document so that the effect and meaning of one part on any other part may be determined. See Birnbaum v. Swepi LP, 48 S.W.3d 254, 257 (Tex.App.-San Antonio 2001, pet. denied). Moreover, we give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used such terms in a technical or different sense. Id. Finally, we enforce an unambiguous agreement as written. Id. We are not permitted to rewrite an agreement to mean something it did not. Id. We cannot change the contract simply because we or one of the parties comes to dislike its provisions or thinks that something else is needed in it. Id. Parties to a contract are masters of their own choices and are entitled to select what terms and provisions to include in or omit from a contract. Id.

Here, while neither party argues that the agreement is ambiguous, each interprets its language differently, and neither concedes that its interpretation of the relevant passages is any less reasonable than the other party’s interpretation of the same. At the heart of the issue is the $62,500 deposit and whether its return to Malatt was conditioned on Appellees’ ability to sell the IQF machine as outlined by the terms of the agreement.

Conditions precedent to an obligation to perform under a contract are those acts or events occurring subsequent to the making of a contract that must occur before there is a right to immediate performance and before there is a breach of contractual duty. See Beacon Nat’l Ins. Co. v. Glaze, 114 S.W.3d 1, 2 (Tex.App.Tyler 2003, pet. denied) (citing Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976)).

Malatt first argues that by pleading in his counterclaim that all conditions precedent had been met, an allegation not specifically denied by Appellees, he met his burden of proof on the issue and that C & R is not permitted to prove that a condition precedent had not been performed to avoid the judgment. See Tex.R. Civ. P. 54. However, in its original petition, C & R specifically pleaded that it was “unable to sell th[e] freezer unit.” Furthermore, in its pleadings, C & R stated that it “used its best efforts to sell [the IQF machine], however, neither C & R nor the court has any control over the market forces that prevent the sale of the freezer unit.” We conclude that C & R’s pleadings specifically controvert the assertion that, if in fact the sale of the IQF machine was a condition precedent to C & R’s obligation to return the deposit to Malatt, such condition precedent had been satisfied. Therefore, C & R has satisfied the specific denial requirement set forth in Rule 54.

We next consider whether the sale of the IQF machine was a condition precedent to Appellees’ returning the deposit. To iterate, the contract stated as follows:

C & R shall use its best efforts to market and sell, in an expeditious and commercially reasonable manner, the IQF Machine currently located in the C & R facility in Center, Texas, and for which Mundi has paid to C & R a deposit of $62,500. C & R shall refund the deposit to Mundi, or its nominee, net any offsets, immediately upon sale of the IQF Machine to a third party.

The plain language of the agreement does not obligate Appellees to sell the IQF machine, but rather, requires that C & R “shall use its best efforts to market and sell” the machine “in an expeditious and commercially reasonable manner.” Malatt argues that the aforementioned provision relates to the timing of repayment only. While the matter of timing is inherent to any condition precedent, Malatt’s argument presupposes that C & R was, in fact, required by the agreement to sell the machine. To the contrary, the contract contains no such mandate. Furthermore, the contract makes no provision concerning what course of action was to be undertaken should C & R fail to sell the IQF machine.

Unlike Wisznia v. Wilcox, 438 S.W.2d 874, 876 (Tex.Civ.App.-Corpus Christi 1969, writ ref d n.r.e.), upon which Malatt relies to support his contention that the aforementioned provision related strictly to the timing of an absolute obligation to pay, the contract in the instant case contains no “express, unqualified[,] and unconditional promise” to repay the deposit. Id. Rather, there is an unconditional promise by Appellees to use their best efforts to market and sell the IQF machine. No reference is made to any obligation to refund the deposit absent the sale of the machine.

Malatt next argues that even C & R’s employment of its best efforts to sell the machine does not excuse it from refunding the deposit to him. Specifically, Malatt, citing Joines v. Burke, 540 S.W.2d 798, 801 (Tex.Civ.App.-Corpus Christi 1976, no writ), contends that because the agreement does not specify a time in which to refund the deposit, the law implies an agreement to act within a reasonable time. Indeed, the agreement is silent as to the time period during which Appellees are required to use their best efforts to sell the IQF machine. However, even if the law implies that a contractual obligation will be performed in a reasonable time when no exact time for performance is specified in the contract, such an implication does not further serve to burden the parties to a contract with implied obligations to which they did not agree. Unlike the contract in Joines, pursuant to which the purchaser had an absolute obligation to pay, see Joines, 540 S.W.2d at 799, the contract in the instant case only obligates Appellees to use their best efforts to sell the IQF machine.

Finally, Malatt argues that the contract contains no language that would indicate a condition precedent. However, while certain terms such as “if,” “provided that,” “on condition that,” or some other phrase ordinarily connote the parties’ intent that there be a condition precedent, no particular words are necessary for the existence of such a condition. See Hohenberg Bros. Co., 537 S.W.2d at 3. We iterate that conditions precedent are acts or events occurring subsequent to the making of a contract that must occur before there is a right to immediate performance. See Glaze, 114 S.W.3d at 2. Since the contract required Appellees to refund the deposit to Malatt immediately upon sale of the IQF Machine to a third party, the sale of the IQF machine was the event that was required to occur before Malatt was entitled to a refund of the deposit. But we must consider the entire agreement and note that no language in the contract required Appellees to sell the machine. Thus, the term “upon the sale of the IQF machine” can be reasonably interpreted as a condition similar to the term “on condition that” inasmuch as the sale of the IQF machine is an event that is not certain to occur, since it was not an absolute obligation under the terms of the contract.

We conclude that the contract required C & R to use its best efforts to market and sell the IQF machine in an expeditious and commercially reasonable manner, and, upon the sale of the ICF machine, C & R was required to immediately refund the $62,500 deposit to Mundi or its nominee. However, we further conclude that there was no requirement that C & R sell the machine if its best efforts could not permit it to do so. Thus, we hold that the trial court correctly held that (1) Malatt was entitled to the deposit only when the IQF was sold and (2) that the sale of the IQF machine was not a contractual requirement. Malatt’s first issue is overruled.

Discharge of Obligation and Impracticability

In his fourth issue, Malatt argues that the defense of impracticability is not applicable and does not excuse performance by C & R and Reeves. However, before we consider such a defense to a party’s obligation to perform, we must necessarily consider if the party did not, in fact, perform. The trial court found that Appellees had discharged their obligation to use their best efforts to sell the subject IQF.

Discharge of Obligation

As we have discussed previously, C & R was not obligated under the agreement to sell the IQF machine. Rather, it was obligated to use its “best efforts” to sell the machine. In his reply brief, Ma-latt states that he “does not dispute the trial court’s finding that C & R used its best efforts to sell the IQF freezer.” However, Malatt has argued that the law implies a reasonable time to perform contractual obligations when no exact time period is stated in the contract. See Joines, 540 S.W.2d at 801.

Given Appellees’ contractual obligation, the rule in Joines could create an implied agreement between the parties that C & R is required to use its best efforts for a reasonable time to sell the IQF machine in a commercially reasonable manner. The trial court found that Appellees employed various tactics for more than three years to sell the IQF machine and, in so doing, satisfied their obligation to use “best efforts” under the contract. On appeal, Malatt does not dispute that Appel-lees satisfied their “best efforts” obligation. Furthermore, he does not raise any argument that the “three year plus” time frame referenced in the trial court’s findings of fact is an unreasonable time period. Therefore, we will not disturb the trial court’s unchallenged finding. We hold that Appellees satisfied their obligation pursuant to the agreement to use their best efforts to market and sell, in an expeditious and commercially reasonable manner, the IQF Machine.

Impracticability

Commercial impracticability is a defense to performance of a contract in Texas. See Tractebel Energy Mktg., Inc. v. E.I. DuPont De Nemours & Co., 118 S.W.3d 60, 64 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Here, since the trial court’s finding that Appellees fulfilled their best efforts to market and sell the IQF machine is not challenged on appeal, we need not address the trial court’s alternate finding related to the defense of impracticability. Malatt’s fourth issue is overruled.

Attorney’s Fees

In his fifth issue, Malatt argues that he is entitled to attorney’s fees and costs. Malatt’s claim in this regard is premised on his counterclaim for breach of contract. See Tex. Crv. Peac. & Rem.Code Ann. § 38.001(8) (Vernon 1997). Since we have upheld the trial court’s finding that Appellees satisfied their obligation under the agreement, it follows that Malatt is not entitled to recover attorney’s fees and costs pursuant to Section 38.001(8). Ma-latt’s fifth issue is overruled.

Disposition

Having overruled Malatt’s issues one and four, we affirm the trial court’s judgment.

      .In his reply brief, Malatt acknowledges that the issues are narrowed as the result of positions taken by Appellees in their brief. Thus, we do not consider Malatt’s second issue, whether he, as assignee, can be liable for breach of contract; his third issue, whether the trial court could rescind or cancel the contract; or as a sub-issue, whether the evidence is sufficient to support that C & R used its "best efforts” to sell the IQF machine.

      . Mundi is an Ecuadorian shrimping company.

      . This particular IQF machine was specifically designed for freezing shrimp.

      . For example, if a contract called for goods to be delivered to “the green house on Pecan Street,” and there were, in fact, two green houses on Pecan Street, a latent ambiguity would arise. See id. n. 4.

      . The record further reflects that Malatt did not object to any such defects in Appellees’ pleadings before the trial court signed the judgment in this case. See Tex.R. Civ. P. 90.
      In his reply brief, Malatt concedes that the trial court had the power to enter judgment based on C & R's claim regarding a condition precedent irrespective of Appellees’ pleadings.

      . The trial court also found as follows:
      Moreover, due to market forces which were not predictable at the time and were beyond the control of either party to the Settlement Agreement, the provisions calling for the effort to sell the subject IQF System became unduly burdensome and in fact unworkable, despite due diligence on behalf o[f] C & R and Reeves.

      . The court’s opinion was supplemented by Tractebel Energy Mktg., Inc. v. E.I. DuPont De Nemours & Co., 118 S.W.3d 929 (Tex.App.Houston [14th Dist.] 2003, pet. denied).


source: Caselaw Access Project

author: DON H. REAVIS, Justice.

license: Public Domain

text:
    Joshua Lee ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0571-CR.
    Court of Appeals of Texas, Amarillo.
    Oct. 18, 2005.

      Don F. Schofield, Amarillo, for appellant.
    Kristy Wright, Canyon, for State.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

DON H. REAVIS, Justice.

Following a plea of not guilty, appellant Joshua Lee Adams was convicted by a jury of intoxication manslaughter with a deadly weapon and sentenced to eight years confinement and a $7,000 fine. Presenting five points of error, appellant contends the trial court erred by (1) permitting the State to amend its indictment on the day of trial, (2) failing to physically alter the indictment after permitting the State’s amendment, (3) admitting evidence of pri- or bad acts under Rule 404(b), (4) inserting the phrase “intoxication by alcohol” in the jury charge when there was no evidence of alcohol intoxication, and (5) overruling an objection to the State’s jury argument suggesting a lesser burden for the State to convict. We affirm.

Gerald Grooms was killed when his motorcycle was struck from behind by a vehicle driven by appellant. Witnesses testified appellant’s behavior after the collision was consistent with intoxication by drugs, and evidence indicated he routinely ingested excessive quantities of Coricidin medication to get high. Appellant was subsequently charged with intoxication manslaughter for being under the influence of Coricidin at the time of the collision.

Indictment

By his first point of error, appellant contends the trial court erred by allowing the State to amend its indictment on the day trial commenced thereby depriving him of due process of law. We disagree. Article 28.10 of the Code of Criminal Procedure governs the procedure for amending an indictment. Tex.Code Crim. Proc. Ann. art. 28.10 (Vernon 1989). Subsection (a) provides that “an indictment or information may be amended at any time before the date the trial on the merits commences.” Id. at (a). Upon request, the defendant is entitled to ten days to respond to a proposed amendment. Id. Subsection (b) allows an indictment to be amended after trial commences if the defendant does not object. However, the statute does not provide for amendments to an indictment made on the date of trial prior to jury selection. Sodipo v. State, 815 S.W.2d 551, 555 (Tex.Cr.App.1990). This omission has been interpreted to preclude the State from amending an indictment on the date of trial over a defendant’s objection. Id. at 556; State v. Murk, 815 S.W.2d 556, 558 (Tex.Cr.App.1991).

In the present case, appellant was indicted for intoxication manslaughter on October 1, 2008. On October 27, 2004, the State filed a motion to amend the indictment and a copy was mailed to appellant’s counsel. Later that day, the motion was granted and an order amending the indictment was signed by a district judge. On October 28, 2004, the State filed a second motion to amend the indictment which included a notice of intent to seek an affirmative finding of the use or exhibition of a deadly weapon. This time, the State faxed a copy of the motion to appellant’s counsel, and a second order amending the indictment was signed by a district judge that afternoon.

Appellant’s trial began on November 8, 2004. Prior to voir dire, appellant objected to the second motion and order amending the indictment claiming (1) the amendment was granted on the same day it was received, thereby denying him the ability to respond or argue the merits of the motion, and (2) the notice of intent to seek an affirmative finding of a deadly weapon was a material allegation which needed to be presented to a grand jury. Following considerable discussion from both sides, the court overrated appellant’s objection and upheld the order amending the indictment.

A review of the record shows appellant failed to object or otherwise direct the court’s attention to the complaint he raises on appeal that an indictment may not be amended on the date trial commences. See Tex.R.App. P. 33.1(a). Under similar circumstances, the Court in Murk held that any error is waived on appeal when a defendant fails to object to such an amendment at trial. Cf. Sodipo, 815 S.W.2d at 556 (finding a defendant preserved his claim by specifically objecting to the indictment error). Similarly, because appellant failed to preserve any error, his first point presents nothing for review and is overruled.

By his second point, appellant contends the trial court deprived him of due process of law by not actually altering the indictment after permitting the State’s amendment. We disagree. In order to complain of a defect of form or substance in an indictment, a defendant must object to the defect at trial. Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). See also Tex.R.App. P. 33.1(a). Because no objection was made at trial, the court’s alleged error in failing to properly amend the indictment was waived. See Tex.Code Crim. Proc. Ann. art. 1.14(b). Appellant’s second point is overruled.

Evidence of Prior Bad Act

By his third point, appellant contends the trial court abused its discretion by allowing three witnesses to testify concerning his use of Coricidin on a prior occasion in 2001 and its observed effects on his physical and mental condition. Appellant claims this erroneously admitted testimony deprived him of equal protection and due process of law. We disagree.

Whether evidence is admissible is within the sound discretion of the trial judge. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990). Therefore, the standard of review for admission or exclusion of evidence is abuse of discretion. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Cr.App.1993). A trial judge does not abuse his discretion unless he has “acted arbitrarily and unreasonably, without reference to any guiding rules and principles.” Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet. ref'd). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court’s ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Cr.App.1996). But, if it cannot be concluded from common, reasonable experience that the evidence has a tendency to make the existence of a fact of consequence more or less probable, then the trial court’s decision was not within the zone of reasonable disagreement and was an abuse of discretion. Id.

Therefore, the discretion to admit or exclude evidence is not absolute. For example, extraneous offense or character evidence is generally inadmissible. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex.R. Evid. 404(b). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Id. In determining whether the trial court abused its discretion, we will review the witnesses’ testimony separately.

Larry Adams

Mr. Adams testified to appellant’s use of Coricidin on a prior occasion in September 2001. Prior to the testimony, appellant objected that it was “highly prejudicial” and that its prejudicial effect on the jury outweighed any probative value. The court overruled the objection and allowed the witness to testify.

A timely and reasonably specific objection is required to preserve error for appellate review. Tex.R.App. P. 33.1(a)(1); Butler v. State, 872 S.W.2d 227, 236 (Tex.Cr.App.1994). Where the alleged error relates to the admission of evidence, a timely objection must be made stating the specific ground of objection. Tex.R. Evid. 103(a)(1); Higgins v. State, 924 S.W.2d 739, 745 (Tex.App.-Texarkana 1996, pet. refd). In addition, the objection at trial must comport with the error complained of on appeal. Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App.1996). No objection was raised at trial regarding error under Rule 404(b); therefore, the issue was not preserved for appeal. Tex.R.App. P. 33.1(a)(1).

Abbey O’Brien and Michael Ecker

Ms. O’Brien intended to testify to appellant’s prior use of Coricidin over a one year period and its effects on his mental and physical condition. Appellant objected that the testimony was not relevant to the offense charged and requested that the court hold a hearing outside the presence of the jury to determine relevancy. Following the hearing, appellant argued the testimony should be excluded under Rule 404(b) as an attempt to show bad conduct, and under Rule 403 because it was more prejudicial than probative. The court overruled appellant’s objection and found the testimony to be relevant, but limited the witness’s testimony to appellant’s use of Coricidin on one occasion in September 2001.

Similarly, Mr. Ecker testified to his observations regarding appellant’s mental and physical condition after ingesting Coricidin on the occasion in September 2001. Appellant objected under Rules of Evidence 404(b) and 403. The court overruled the objections and allowed the testimony to be admitted for the limited purpose of demonstrating the physical effects of Coricidin on appellant. Prior to the testimony, at the request of appellant, the court orally instructed the jury as follows:

The defendant is on trial solely on the charge contained in the indictment. In reference to evidence, if any, that the defendant has previously participated in transactions or acts, other than but similar to that which is charged in the indictment in this case, you are instructed that you cannot consider such other transactions or acts, if any, for any purpose unless you find and believe beyond a reasonable doubt that the defendant participated in such transactions or committed such acts, if any. And even then, you may only consider the same for the purpose of the sole issue of the effect of Coricidin on the physical abilities of the defendant, and no other purpose.

The jury was further instructed that this instruction also applied to the testimony of Larry Adams and Abbey O’Brien. The instruction was also included in the final jury charge.

Assuming arguendo that the witnesses’ testimony should not have been admitted, a harm analysis must be conducted, pursuant to Tex.R.App. P. 44.2(b). The rule requires us to disregard an error that is not constitutional error unless it affects a “substantial right” of appellant. Tex.R.App. P. 44.2(b). A substantial right is affected when an error has a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997). Although appellant asserts there was a violation of equal protection and due process, violations of the evidentiary rules resulting in the erroneous admission of evidence are generally held not to be constitutional error. Tate v. State, 988 S.W.2d 887, 890 (Tex.App.-Austin 1999, pet. ref'd). Furthermore, we generally presume that the jury follows the trial court’s instructions, including a limiting instruction regarding certain testimony. See Waldo v. State, 746 S.W.2d 750 (Tex.Cr.App.1988).

Here, other witnesses testified to appellant’s behavior following the collision and their belief that he was under the influence of intoxicating drugs. Considering the other evidence admitted and the court’s limiting instructions, we find the testimony concerning appellant’s use of Coricidin on a prior occasion in September 2001, even if inadmissible, did not have a substantial and injurious effect or influence on the jury’s verdict. We hold the trial court did not abuse its discretion in allowing the testimony for a limited purpose and overrule appellant’s third point of error.

Improper Jury Argument

By his fifth point, appellant contends the trial court erred in overruling his objection to the State’s jury argument suggesting a lesser burden for intoxication manslaughter.

The following exchange occurred during the State’s closing argument:

State: If he — if it’s true that he operated that motor vehicle while he was intoxicated, stoned on Corici-din, and his operation of the vehicle while intoxicated caused this man’s death, then he is guilty.
Defense: Your Honor, the charge specifically says that the intoxication caused the death, and I think he is misrepresenting the charge to the jury.
The Court: No, I don’t think it says that. Overruled.

Appellant maintains that the State’s characterization of the law denies him due process. We disagree. Appellate courts have consistently held that prosecu-torial misstatements of law are not constitutional in nature. Coggeshall v. State, 961 S.W.2d 639, 643 (Tex.App.-Fort Worth 1998, pet. ref'd). In conducting a harm analysis under Rule 44.2(b), we disregard nonconstitutional errors unless appellant’s substantial rights are affected. As previously noted, a substantial right is affected when error has a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266 at 271. To determine whether a prosecutor’s misstatement of law had a substantial and injurious effect or influence on the jury’s verdict, we look at all the evidence and the court’s charge, as well as the misstatement. Herrera v. State, 11 S.W.3d 412, 415 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Absent evidence to the contrary, a jury is presumed to follow the instructions set forth in the court’s charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex.Cr.App.1996). However, such presumption can be rebutted. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.Cr.App.2003).

Here, the jury charge correctly stated the elements of intoxication manslaughter. The charge provided that a person commits the offense when he operates a motor vehicle in a public place, is intoxicated, and by reason of that intoxication, causes the death of another by accident or mistake. See also Tex. PemCode Ann. § 49.08(a) (Vernon 2003). The State claims that it “essentially argued” that appellant’s intoxication, not just his operation of a motor vehicle, caused the death of the victim. However, we disagree and accept appellant’s contention that the State misstated the law regarding the evidence on which the jury could convict.

Even so, we fail to find anything in the record suggesting that this misstatement had a substantial and injurious effect or influence on the jury’s verdict. The elements required to convict were correctly stated in the charge, and appellant fails to direct us to any evidence that the jury failed to properly follow the charge. Therefore, we hold the error is harmless. See Tex.R.App. P. 44.2(b). Appellant’s fifth point is overruled.

Accordingly, the judgment of the trial court is affirmed.

      . Appellant waived his fourth point of error during oral argument and will not be addressed below.


author: J. HARVEY HUDSON, Justice.

text:
    John Lowell BUFKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01229-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 20, 2005.

      Brian Marcus Middleton, Houston, for appellant.
    Chad E. Bridges, Richmond, for appel-lee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION ON REHEARING

J. HARVEY HUDSON, Justice.

Appellant, John Lowell Bufkin, was convicted by a jury of the misdemeanor offense of assault. The trial court assessed appellant’s punishment at confinement in the Fort Bend County Jail for a term of 365 days and a fine of $250. However, pursuant to appellant’s request, the court probated the sentence for 24 months. In three points of error, appellant contends: (1) the evidence was factually insufficient to support his conviction; (2) the trial court erred in allowing inadmissible hearsay; and (3) the court improperly denied his request for a jury instruction on the issue of consent. In light of the State’s motion for rehearing, we withdraw our previous opinion in this cause and substitute this opinion in its stead.

The record reflects that appellant and the alleged victim, Shelby Hooper, were living together as a couple at the Sun Suites hotel in Stafford, Texas. On August 9, 2003, an altercation arose between appellant and Hooper in their hotel room. An unidentified third party placed a 911 call alerting police that a fight was occurring between a man and a woman. Three officers from the Stafford Police Department were dispatched to the hotel. Upon their arrival, the police found Hooper hysterical and crying. After securing the scene, the officers obtained statements from Hooper indicating that appellant had pinned her against the bathroom wall, struck her with his fists, and bit her. Consistent with Hooper’s statements, the officers observed that she had a cut on her lip and found bite marks on her back and buttocks. After questioning appellant and Hooper further and hearing appellant admit that he hit Hooper in the head with a closed fist, the police officers arrested appellant for assault.

Factual Sufficiency

In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant argues that because the State did not present any evidence to rebut his theory of self-defense, it failed to prove beyond a reasonable doubt that he did not act in self-defense.

To disprove a defendant’s claim of self-defense, the State bears only a burden of persuasion. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991); Hull v. State, 871 S.W.2d 786, 789 (Tex.App.-Houston [14th Dist] 1994, pet. refd). This means the State is not obligated to offer evidence refuting a claim of self-defense, but rather, the State is required merely to prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 914; Hull, 871 S.W.2d at 789.

Moreover, self-defense is a fact issue to be determined by the jury. Saxton, 804 S.W.2d at 913-14. As the trier-of-fact, the jury is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). “A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.” Saxton, 804 S.W.2d at 914. In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the jury was not rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). If there is evidence that establishes guilt beyond a reasonable doubt which the trier-of-fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.1984):

Here, the record indicates that when police officers arrived at the scene, they found Hooper extremely agitated. Hooper explained that appellant had pinned her against the bathroom wall with his arm on her neck, assaulted her, and then locked her in the bathroom for about an hour to “calm her down.” She further stated that the assault involved appellant striking her with his hand and biting her. She also responded affirmatively when officers asked if she wanted a protective order to prevent appellant from using any further violence against her. Confirming her story about the assault, the police observed Hooper’s lip was cut and found bite marks on her back and buttocks. Color photographs documenting the injuries were admitted into evidence. The police also tape recorded the events at the scene, including Hooper’s description of the assault and appellant’s admission that he struck Hooper with his fist. These tapes were also admitted into evidence.

Appellant’s sufficiency argument relies almost exclusively on Hooper’s recantation of the statements she made to the police. In fact, Hooper was the only defense witness. She testified that appellant never struck her and that the bite marks on her body were from “love bites” received during consensual sexual foreplay the night before the altercation. Hooper also explained that she was the one who struck appellant first and admitted that she actually struck appellant various times. She further stated that appellant’s actions towards her involved only pushing and that he only did so in self-defense. Consistent with Hooper’s testimony, the police observed that appellant had two knots on his forehead, scratches on his neck and waist, and bite marks on his chest. However, on cross-examination the State pointed out the inconsistencies between Hooper’s testimony at trial and the statements she made, both oral and written, to officers on the evening of the alleged assault.

The jury was entitled to believe Hooper’s story at trial and was instructed by the trial court that it could consider appellant’s self-defense theory. The jury was equally free to disbelieve Hooper’s trial testimony and, instead, rely on the evidence presented by the State. See Sharp, 707 S.W.2d at 614. The jury apparently gave no credence to appellant’s claim of self-defense, but rather, found him guilty as charged. See Saxton, 804 S.W.2d at 913-14. Based on our own review of the record, we find the jury was rationally justified in finding guilt beyond a reasonable doubt. Accordingly, we overrule appellant’s first point of error.

Excited Utterance

In his second point of error, appellant contends the trial court erred in permitting inadmissible hearsay to be introduced at trial. Specifically, appellant argues that because the State failed to establish that Hooper’s statements describing the alleged assault were the result of a startling event, they were hearsay and should not have been admitted under the excited utterance exception to the general hearsay rule.

The admissibility of an out-of-court statement under the exceptions to the hearsay rule is within the trial court’s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). A trial court’s decision to admit or exclude hearsay will not be reversed absent a clear abuse of this discretion. Id. An abuse of discretion occurs “‘only when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.’ ” Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992)).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered into evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Hearsay is generally inadmissible unless a statute or the Texas Rules of Evidence provide a specific exception which allows the statement to be admitted. Tex.R. Evid. 802. Excited utterance is one such exception provided by the Rules of Evidence and is described as “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); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001).

The test to determine whether a statement falls under the excited utterance exception requires the court to assess whether: (1) the statement was the product of a startling event that produced a state of nervous excitement; (2) the de-clarant was dominated by the excitement of the event; and (3) the statement related to the circumstances of the startling event. Jackson v. State, 110 S.W.3d 626, 633 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). The court may also consider other factors such as the amount of time elapsed and whether the statement was in response to a question. Salazar, 38 S.W.3d at 154. However, these factors are not dispositive. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995). “[T]he pivotal inquiry is ‘whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.’ ” King v. State, 953 S.W.2d 266, 269 (Tex.Crim.App.1997) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992), overruled on other grounds by, Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App.1994)).

Here, Officer Rodriguez testified extensively about the excited nature of Hooper’s statements to him:

Q. [by Mr. Bridges, the State’s attorney]: Now, when you came into this location in this hotel room, did you start talking to Shelby [Hooper] about what had happened?
A. [by Officer Rodriguez]: Yes, I did.
Q. And when you talked to her, did you notice anything about her emotional state?
A. She was very upset. She was hysterical. She was crying.
Q. And while she was under the stress — or while she was in this heightened, excited emotional state, did she make any statements to you?
[Mr. Ashford, defense counsel]: Objection, hearsay.
[The Court]: Sustained.
[Mr. Bridges]: Judge, I’m not asking her to say what she said, just if she made any statements at that point.
[The Court]: That’s fine.
[Mr. Bridges]: Let me rephrase that.
Q. [by Mr. Bridges]: While she was in that heightened emotional state, without saying what she said, did she make any statements to you? Did she say anything to you, ma’am?
A. She did, but I couldn’t understand her. I couldn’t understand what she was saying.
Q. At a certain point, did she calm down enough to the point that she could actually articulate words?
A. Yes, she did.
Q. When she was in that state where she w;as speaking, was she still under the excitement and stress of an ongoing — of a startling event that had been done on her?
A. Yes, she was.
Q. And did she give you a time frame of how long it had been since these events had occurred?
A. Well, one hour.
Q. Now when she was talking and while she was in this excited state, did she make statements to you about what caused her excited state, the startling event that caused her excited state?
[Mr. Ashford]: Objection, that calls for hearsay, Your Honor.
[The Court]: I’ll overrule it under the Excited Utterance Rule.
Q. Did she say that the events — did she tell you whether or not the events that had caused her emotional state happened there in that hotel room?
[Mr. Ashford]: Your Honor, I’m going to object, again. I don’t feel that it’s been shown that the witness was — did not have sufficient time to reflect on these events. So, her statements would not be mere narrative of a past event and not necessarily under any excited event of an alleged event.
[The Court]: I’ll overrule that objection.
Q. Go ahead, ma’am.
A. Can you repeat the question?
Q. While she was there and while she was discussing something that put her in that excited state, did she talk about what happened to her?
A. Yes, she did.

Officer Rodriguez went on to testify that Hooper said appellant’s actions were the cause of her excited emotional state. Hooper continued by describing the assault and even agreed that she needed a protective order to prevent further violence. Another officer later reiterated at trial that Hooper appeared seared when he arrived at the scene.

Based on the testimony presented at trial, the State laid the necessary foundation to prove Hooper’s statements constitute an excited utterance. The trial court heard testimony that Hooper was extremely agitated when officers arrived at the scene. In fact, she was so upset that officers initially could not understand her. The State’s attorney repeatedly asked whether the alleged assault caused Hooper’s excited state and whether she was still under the stress of that exciting event when she was describing what occurred. Only after Officer Rodriguez affirmatively answered these questions did the trial court allow the officer to testify about what Hooper actually said. Thus, the trial court properly considered the requisite factors and determined that Hooper’s statements were excited utterances. Based on our own review of the record, we cannot say the trial court’s admission of these statements was outside the zone of reasonable disagreement. Accordingly, we overrule appellant’s second point of error.

Jury Instruction on Consent

In his third point of error, appellant complains that the trial court improperly refused to provide a jury instruction on the issue of consent because there was some evidence that Hooper consented to appellant’s actions. Therefore, he avers that the court should have instructed the jury to consider consent as a defense to the assault charge.

Section 22.06 of the Texas Penal Code provides that consent can be a defense to prosecution for assault. Tex. Pen.Code Ann. § 22.06(1) (Vernon 2003). A defendant is entitled to a jury instruction on any theory of defense supported by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996). This is true whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court believes about the credibility of the evidence. Granger, 3 S.W.3d at 38; Hamel, 916 S.W.2d at 493. This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991). In reviewing a trial court’s refusal to provide an instruction, we view the evidence in the light most favorable to the defendant. Preston v. State, 756 S.W.2d 22, 24 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Therefore, the issue before us is whether the evidence, viewed in the light most favorable to appellant, is sufficient to raise the issue of consent. See Miller, 815 S.W.2d at 585.

To support his argument, appellant relies on Hooper’s testimony whereby she recanted her story about the alleged assault. On direct examination, Hooper explained that she provided a misleading picture to police officers about what occurred on the evening of the alleged assault. Contrary to her statements to the officers, Hooper testified the bite marks were the result of consensual sexual activity that occurred the night before the alleged assault. Based on this testimony, appellant argues he was entitled to a jury instruction on consent regarding his actions in biting Hooper. Appellant also points out that Hooper testified she was the one who initially became physically violent and that she actually struck him first. Therefore, appellant suggests he was entitled to an instruction on consent in hitting Hooper as well.

The State first claims that appellant’s requested instruction on consent regarding the biting allegation is moot. Specifically, the State correctly observes that appellant was charged with two manner and means of committing the assault— biting and striking with the hand. The State contends that because it was only required to prove one method of committing the assault, the lack of evidence on consent with regard to the hitting renders any discussion on the biting allegations moot. The argument would be compelling if the issue before us were one of legal sufficiency. However, the issue presented here is whether the trial court erred in failing to give a properly requested instruction on the defense of consent. Thus, the issue is not moot.

The State also asserts that there is no evidence that Hooper consented to being hit. While that is true, the issue raised at trial is whether Hooper consented to being bitten. Looking at the jury’s verdict, we cannot determine whether appellant was convicted for assault based on hitting or biting. Because the jury was charged in the alternative, it is possible the jury convicted appellant based solely on biting. Hooper’s testimony constitutes some evidence that she consented to being bitten by appellant. Accordingly, appellant was entitled to an instruction on consent.

On rehearing, the State chastens this court for failing to address its contention that appellant has failed to present anything for review by omitting citations to the record regarding this point of error. While a brief must contain “appropriate citations to authorities and to the record,” the briefing rules found in the Rules of Appellate Procedure “are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.” Accordingly, the rules are to be construed liberally and “substantial compliance” with the rules may, in the court’s discretion, be sufficient. Tex.R.App. P. 38.9. In other words, it is the court’s prerogative, not the parties’, to insist on unerring compliance with the briefing rules. Where, as here, the court has had no difficulty locating the pertinent portions of the record relating to appellant’s third point of error, it is within the court’s discretion to review the point of error.

The State also argues on rehearing that appellant’s requested instruction was “patently incorrect” because (1) consent and self-defense are contradictory theories, (2) consent negates self-defense, and (3)-appellant either needed to defend himself from Hooper or Hooper consented to his actions, but not both. However, a defendant may rely “on more than 'one defensive theory.” Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984). In fact, a “defendant is entitled to submission of every defensive issue raised by the evidence, even if inconsistent with other defenses.” Darty v. State, 994 S.W.2d 215, 219 (Tex.App.-San Antonio 1999, pet. ref'd). Further, according to Hooper’s trial testimony, the biting and hitting did not occur at the same time; rather, the “consensual” biting occurred the evening before appellant hit her" in “self-defense.” Accordingly, the defenses are not contradictory.

The State further argues on rehearing that appellant’s request for a charge on consent was too rambling and confused to give the trial court a fair opportunity to address his contention. We find no evidence of such confusion in the record. Appellant’s counsel offered a proposed charge in which he (1) sought a consent instruction with regard to the hitting and (2) a self-defense instruction with regard to both the hitting and the biting. The trial court correctly refused this instruction because ■ there was no evidence the hitting was consensual or that the biting was done in self-defense. Whereupon, appellant’s counsel discovered his error and amended his request so as to allow the jury to be instructed on consent with regard to the biting:

THE COURT:- ... I think the way the consent thing is done — I think there’s no doubt in the Court’s mind, from her testimony, .that she gives the impression that she consented to the bite; but I think that there’s a — I think the Court has a problem finding that you can consent to being struck. I know that I would rather see us go with the self-defense charge, since she did-raise that, that she made that .statement, he is entitled to a charge on self-defense. So, we’re going to have to do it oyer right quick.
MR. ASHFORD [Appellant’s counsel]: So, if we’re not going to have the charge on — consent charge on the bite, I guess I need to read that into the record also.
THE COURT: Okay. I understand your objection to that. Are you taking this down?
THE COURT REPORTER: Yes, ma’am.
THE COURT: And I think the— you’ve read it just a minute ago. Are you substituting hitting with biting?
MR. ASHFORD: Right, to the charge that was previously read on the consent, the word “biting” would be added to the allegations that were being consented to.
THE COURT: I’m going to allow the charge on self-defense. I am — at this point, do not feel that — I feel like the biting was a consent thing; but I 'don’t feel like you have to have both consent and self-defense in the same charge.

Having found error in the trial court’s refusal to submit appellant’s requested instruction on consent with regard to the biting, we must next determine whether that error requires reversal. See Tex.Code CRiM. PROC. Ann. art. 36.19 (Vernon 1981); Miller, 815 S.W.2d at 585-86 (citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)). If the charge contains error, and that error has been properly preserved by an objection or requested instruction, reversal is required as long as the error is not harmless. Almanza, 686 S.W.2d at 171. This means we must determine whether appellant suffered “some harm.” Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App.2003). “Unless all harm was abated, appellant suffered ‘some’ harm.” Miller, 815 S.W.2d at 586 n. 5 (emphasis in original).

As explained above, we cannot determine whether the jury convicted appellant based on the biting or the hitting allegations. Had the jury believed appellant was guilty only of the biting charge, it is possible that they would have acquitted him of committing assault if it had been properly charged regarding consent. While the State presented considerable evidence of an assault, we again note that whether Hooper was assaulted was a determination for the jury to make. Id. at 585. Without “fair assurance” that the error did not have an “injurious effect or influence in determining the jury’s verdict,” we cannot conclude that the error was harmless. Trevino, 100 S.W.3d at 243 (quoting King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)); see also Miller, 815 S.W.2d at 586 (finding “some harm” existed where the court refused to provide an instruction on mistaken consent). Accordingly, we sustain appellant’s third point of error.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

      . As a condition of probation, the trial court also assessed 30 days jail. However, appellant was granted 30 days credit for time already served, effectively requiring appellant to satisfy only the remaining time on probation.

      . It is, of course, equally plausible, even probable, that the jury convicted appellant based solely on the hitting. However, our responsibility on appeal is to review the evidence supporting appellant’s requested instruction in the light most favorable to him. See Miller, 815 S.W.2d at 585.

      . TexJR.App.P. 38.1(h).

      . Tex.R.App. P. 38.9.


author: Justice ROSS.

text:
    Sha-Ron Donte BERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00012-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 7, 2005.
    Decided Oct. 21, 2005.

      Kevin Sekaly-Cribbs, Sekaly and Sekaly, Beaumont, for appellant.
    Rodney D. Conerly, Wayne G. Thompson, Beaumont, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Sha-Ron Donte Berry appeals from his conviction by a jury for aggravated assault with a deadly weapon. Punishment was enhanced on a finding by the jury that Berry had previously been convicted of a felony. The jury assessed punishment at fifteen years’ imprisonment, and the court sentenced Berry accordingly. We affirm the conviction, but reverse and remand for a new trial on punishment.

In his first point of error, Berry contends the State failed to meet its burden of proof that the prior conviction, alleged in the indictment for enhancement of punishment, was final at the time of the commission of the primary offense. We agree.

The indictment alleged Berry committed the primary felony offense on or about June 1, 2002. It also alleged that, before the commission of that offense, Berry had been finally convicted of aggravated assault with a deadly weapon May 29, 2001. The jury found him guilty of the primary offense. The jury also found the enhancement paragraph to be true.

At the trial on punishment, the State introduced evidence of Berry’s prior felony conviction. Berry stipulated that the offense pertained to him. The documents introduced by the State showed that Berry committed the prior felony June 30, 2000, that the trial court rendered judgment May 30, 2001, and that the court of appeals issued its mandate affirming the conviction August 29, 2002.

The Texas Court of Criminal Appeals has held that, for enhancement purposes, a conviction is not final until the appellate court issues its mandate affirming the conviction. Beal v. State, 91 S.W.3d 794, 796 (Tex.Crim.App.2002). The parties agree the felony used for enhancement was not final at the time of the commission of the present offense.

The State contends Berry waived any error on this issue by failing to object to the enhancement paragraph before trial. While the enhancement paragraph in the indictment may have been sufficient to charge the finality of the prior conviction, it was not sufficient to prove the finality of that conviction. See Jones v. State, 711 S.W.2d 634, 635 (Tex.Crim.App.1986) (citing Scott v. State, 553 S.W.2d 361 (Tex.Crim.App.1977)). The State still had the burden to make a prima facie showing that any prior conviction alleged for enhancement became final before the commission of the primary offense. See Diremiggio v. State, 637 S.W.2d 926, 928 (Tex.Crim.App. [Panel Op.] 1982). Only then would the burden shift to Berry to.prove otherwise. See id.

Here, the evidence offered by the State clearly proved that the prior-felony conviction was not final before the commission of the primary offense. The State, therefore, failed to meet its burden of proof. Because the State failed to make a prima facie showing of finality, Berry had no burden to carry; nor was he obligated to complain about or object to the lack of finality of the alleged prior conviction. Jones, 711 S.W.2d at 636.

Even though it was error to enhance Berry’s primary offense with a prior conviction that was not final at the time of the commission of that offense, any non-constitutional error, defect, irregularity, or variance that does not affect a substantial right must be disregarded. See Tex.R.App.P. 44.2(b). The State contends that, because the punishment assessed was within the range for a second degree felony, any error resulting from its failure to make a prima facie showing of finality was harmless. We disagree.

A substantial right is affected when the error has a substantial and injurious effect or influence on the jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). In determining whether the error affected the jury’s verdict, we must examine the entire record. See Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001).

By finding the enhancement paragraph true, the jury was required to consider a greater range of punishment. Instead of not less than two nor more than twenty years’ imprisonment for a second degree felony, the jury considered the first degree felony punishment range of life imprisonment or five to ninety-nine years. See Tex. Pen.Code Ann. §§ 12.32(a), 12.33(a).

Berry was assessed fifteen years’ imprisonment, well within the second degree felony range of punishment. However, the jury was allowed to consider a prior offense for enhancement of punishment purposes that was, as a matter of law, unavailable for such purposes. The State, in its closing argument to the jury (consisting of four and one-half pages in the record), emphasized the prior conviction and twice reminded the jury that the punishment range was “five to life.” The record affirmatively shows the jury did consider the prior offense during its deliberations by the fact that 'it sent a note to the trial court asking, “Will the five year sentence for prior conviction be added or run concurrently?” Further, the foreperson of the jury, when announcing the jury’s verdict, stated, ‘We, the jury, find that prior to the commission of the offense for which we have found the defendant guilty, the defendant was previously convicted of a felony offense, as alleged in the indictment, .... ” Nothing in the record provides us with a basis to reasonably infer that the same sentence would have been levied had the prior offense not been considered. See Fortier v. State, 105 S.W.3d 697, 700 (Tex.App.-Amarillo 2003, pet. ref'd).

The punishment assessed by the jury was nearer the maximum number of years allowed for a second degree felony than the minimum, and was nearer the minimum for the enhanced range than the maximum. Therefore, we are not convinced that, without the enhancement paragraph, the jury would have assessed the same punishment. Indeed, it is reasonable to conclude that, without such enhancement, the jury would have assessed a lower punishment. Consequently, we cannot say ..that the error did not have a substantial and injurious effect or influ-enee on the jury’s verdict. Sims v. State, 84 S.W.3d 768, 780 (Tex.App.-Dallas 2002, pet. ref'd). We hold the error was not harmless. Berry’s first point is sustained.

In his second, third, and fourth points of error, Berry contends the trial court erred, during the guilt/innocence phase of the trial, by admitting testimony from Berry himself regarding the prior conviction alleged for enhancement.

The admission of extraneous offense evidence is reviewed under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App.1996) (op. on reh’g). If the trial court properly admits the evidence in light of the factors enunciated in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990), and the court’s decision to admit the evidence is “within the zone of reasonable disagreement,” the trial court’s decision will be upheld. Rankin, 974 S.W.2d at 718.

Berry contends in his second point of error the trial court erred because the testimony elicited by the State was false. Specifically, Berry asserts that the State’s use of the prior conviction as if it were final at the time of the commission of the primary offense was inappropriate. The relevant testimony is as follows:

[State:] Have you been convicted of a felony or crime of moral turpitude?
[Berry:] Yes.
[State:] What felony?
[Berry:] Aggravated assault.
[State:] With a deadly weapon?
[Berry:] Yes.
[State:] And then on June 1st, 2002, you’ve got a pistol; and you’re doing it again? Yes?
[Berry:] Yes, but I don’t see it that way.
[State:] At the time of this offense, June 1st, 2002, you were a convicted felon?
[Berry:] Yes.
[State:] And you had a pistol?
[Berry:] Was I a convicted felon at that time when the second one happened?
[State:] At the time of June 1st, 2002, you were a convicted felon and you had a pistol?
[Berry:] Well, my case was still under review at that time. That’s how I was out. That’s how I was still out.
[State:] You were convicted on May 23rd, 2001. You told the jury that just a minute ago.
[Berry:] Well, I was on appeal bond. That’s how I was out. It wasn’t [af-jfirmed yet at that time is what I’m saying.
[State:] And you had a pistol?
[Berry:] Yes.

None of the elicited testimony is false. Berry had been convicted of aggravated assault May 23, 2001, and that conviction became final August 29, 2002. The trial of the instant case commenced November 29, 2004. That conviction, although not final for purposes of enhancement of punishment (as discussed above), was a final conviction for purposes of impeachment. See Tex.R. Evid. 609. For reasons stated below, we hold the trial court’s decision to admit this testimony for impeachment purposes was reasonable. Berry’s second point of error is overruled.

Berry next contends the trial court abused its discretion because the testimony quoted was far more prejudicial than probative. Berry asserts the trial court did not perform a Rule 609 balancing test for the admissibility of this conviction. See Tex.R. Evid. 609(a). We have previously held that a record of such a test is not necessary. When considering the probative effect of evidence versus its possible prejudicial effect, the appellate court may presume that the trial court conducted the balancing test, which need not be shown in the record. Bryant v. State, 997 S.W.2d 673, 676 (Tex.App.-Texarkana 1999, no pet.).

Both Berry and the State correctly cite Theus v. State, 845 S.W.2d 874 (Tex.Crim.App.1992), as controlling authority on the admissibility of this conviction for impeachment purposes. In Theus, the Texas Court of Criminal Appeals set forth five nonexclusive factors the trial court should consider in the application of Rule 609 and in weighing the probative value of a prior conviction, against its prejudicial effect: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense, and the witness’ subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. Id. at 880.

Wide discretion is accorded the trial court’s decision in weighing these factors, and the decision should be reversed on appeal only if there is a showing of a clear abuse of discretion. Id. at 881 (citing Montgomery, 810 S.W.2d at 391 (op. on reh’g)).

The court in Theus held that the impeachment value of crimes involving moral turpitude and deception is higher than crimes involving violence, and the rule favors the admission of evidence of those types of crimes. Berry’s past crime involved violence. Therefore, the first factor weighs against admission. See id. With regard to temporal proximity, the evidence shows that the prior conviction was well within the ten-year period provided by Tex.R. Evid. 609(b). Therefore, the second factor weighs in favor of admission.

As to the similarity between the past crime and the offense being prosecuted, the two crimes were the same offense: aggravated assault, with a deadly weapon. The Texas Court of Criminal Appeals stated in Theus: “If ... the past crime and the charged crime are similar, the third factor will militate against admission.” Theus, 845 S.W.2d at 880. This is presumably because the jury would be more likely to consider such past crime as proof of character rather than credibility. The third factor, therefore, weighs against admission in this case.

As for the fourth and fifth factors, Berry and the complainant were the only witnesses at the time of the offense. Therefore, Berry’s testimony and his credibility as a witness were very important. Hence, these factors weigh heavily in favor of admission.

Affording the trial court the wide discretion mandated by Theus, we hold the trial court properly permitted the State to impeach Berry with this prior criminal conviction. The third point of error is overruled.

Berry finally contends the trial court erred in admitting the above-quoted testimony in violation of Rule 404 of the Texas Rules of Evidence to prove character in conformity. In support of this contention, Berry asserts again the State elicited false testimony regarding his prior conviction. We have already addressed the contention of false testimony.

Further, as discussed above, the trial court acted reasonably in allowing this testimony for the purposes of impeachment. Again, we must afford the trial court wide discretion. From the record before us, we cannot say the testimony was admitted solely to show Berry’s propensity for violence. Berry’s fourth point of error is overruled.

Having sustained Berry’s first point of error and overruled his remaining points, we affirm the judgment of conviction, but reverse the sentence imposed and remand the case for a new punishment trial. See Tex.Code Ckim. Phoo. Ann. art. 44.29(b) (Vernon Supp.2004-2005). The State is prohibited from again attempting to use the alleged prior felony conviction for the purpose of enhancing Berry’s punishment for the primary offense alleged. See Jones, 711 S.W.2d at 636.

We affirm the judgment of conviction. We reverse the sentence imposed and remand the case for a new punishment trial, in accordance with this opinion.

      . Tex. Pen.Code Ann. § 22.02(a)(2) (Vernon Supp.2004 — 2005).

      . The offense charged by the indictment, without the enhancement, was a second degree felony, punishable by imprisonment for two to twenty years, and a fine of up to $10,000.00. See Tex. Pen.Code Ann. § 12.33 (Vernon 2003), § 22.02(b) (Vernon Supp. 2004-2005). With the enhancement, it was punishable as a first degree felony, with a punishment range of imprisonment for life or for five to ninety-nine years, and a fine of up to $10,000.00. See Tex. Pen.Code Ann. § 12.32 (Vernon 2003), § 12.42(b) (Vernon Supp. 2004-2005).


author: JOHN S. ANDERSON, Justice. J. HARVEY HUDSON, Justice,

text:
    In the Interest of R.J.P., a Child.
    No. 14-04-00521-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 2005.

      Rhonda Amkraut Pressley, Austin, for appellant.
    Anita Denise Paul Williams, Shawn Russel Casey, Houston, for appellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   PLURALITY OPINION

JOHN S. ANDERSON, Justice.

The Attorney General of Texas appeals the trial court’s order modifying a prior order of child support that decreases the monthly child support obligation owed by appellee, Roosevelt P., from $420 to zero. The Attorney General contends the trial court erred by admitting into evidence and considering paternity results when it modified Roosevelt’s child support obligation because: (1) collateral estoppel and res judicata barred the issue of paternity from being relitigated; (2) the Uniform Parentage Act precluded Roosevelt from rebutting his presumption of paternity; and (3) the paternity results failed to meet the admissibility requirements of the Texas Family Code. We reverse and remand.

I, Factual and Procedural Background

Roosevelt married Anita in June of 1988, and they lived together as husband and wife until they separated on March' 12, 1991. On July 16, 1991, four months after their separation, Anita gave birth to R.J.P. Anita and Roosevelt remained separated without court ordered child support until 1998. In April of 1998, in cause number 98-14343, the trial court signed an agreed child support order finding Roosevelt to be R.J.P.’s biological father and ordering him to pay monthly support payments of $205.

In January of 2003, as a result of Roosevelt’s increased earning capacity, the Attorney General, in cause number 98-14343, sought to modify Roosevelt’s monthly child support obligation from $205 to $420. After receiving notice of the requested modification, Roosevelt secured a private paternity test for himself and R.J.P. On March 18, 2003, Roosevelt received the paternity results which he claims prove he is not the biological father of R.J.P. On March 21, 2003, Roosevelt filed an original petition for divorce with the trial court under cause number OS-14736, a different cause number than the Attorney General’s motion to modify. On May 19, 2003, the trial court, without receiving a request for a hearing or a response from Roosevelt to the Attorney General’s motion to modify, increased Roosevelt’s monthly child support obligations from $205 to $420 in accordance with the Attorney General’s request.

On June 9, 2003, Roosevelt filed an amended divorce petition seeking to voluntarily terminate the parent-child relationship. Contemporaneously, Roosevelt filed a motion under cause number 98-14343 seeking to. terminate child support and withholding based on his claim that he is not the biological father of R.J.P. On November 5, 2003, the trial court consolidated both cause numbers into cause number 98-14343.

At a hearing on the matter, the trial court took judicial notice of the entire contents of the files in the case, including the 1998 order establishing Roosevelt’s biological paternity. Afterwards, Roosevelt sought to introduce paternity results establishing he is not the biological father of R.J.P. Over the Attorney General’s objections, the trial court admitted the paternity results into evidence. Contemporaneously, the trial court ordered Roosevelt, Anita, and R.J.P. to submit to a court ordered paternity test before the next hearing. In support of its order to obtain genetic testing, the trial court stated:

It think it’s very important that we establish, without any doubt, for any party, Mom or Dad or your child, who her father is. There is [sic] good health reasons if she ever needs to have any sort of transplant-type stuff for us to have a bone marrow transplant, it’s so important to know that a whole other family might exist to be possible donors of, both, of anything that may be needed from a health standpoint.

At the follow-up hearing, the trial court learned that Anita and R.J.P. failed to obtain the court ordered genetic test, and over objection, the trial court re-admitted the privately secured paternity results into evidence. On February 20, 2004, the trial court granted the parties a divorce, eliminated withholding, and decreased Roosevelt’s monthly child support obligation from $420 to zero without changing Roosevelt’s status as R.J.P.’s father. To support the modification, the trial court’s amended findings of fact and conclusions of law state Roosevelt “may not be the biological father of the minor child.”

II. Discussion

On appeal, the Attorney General contends the trial court erred when it modified Roosevelt’s monthly child support obligation to R.J.P. from $420 to zero because the determination was based on inadmissible paternity results. Specifically, the Attorney General contends the trial court should .not have considered the paternity results because collateral estoppel and res judicata bar the issue of parentage from being relitigated because the paternity results contradict a court order almost five years earlier.

A. Standard of Review

In determining questions of child support, the trial court’s primary consideration must always be the best interest of the child. Clark v. Jamison, 874 S.W.2d 312, 316 (Tex.App.-Houston [14th Dist.] 1994, no writ). Trial judges have wide discretion with respect.to child support. Dennis v. Smith, 962 S.W.2d 67, 68 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). Questions concerning the admission and exclusion of evidence are reviewed under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). We will reverse only if the trial court abused its discretion by acting without reference to any guiding rules or principals or by acting arbitrarily or unreasonably. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.2003); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court has no discretion in deciding what law applies or in applying the law to the facts of the case. In re Kuntz, 124 S.W.3d 179, 181 (Tex.2003) (orig.proceeding); accord In re D.S., 76 S.W.3d 512, 516 (Tex.App.Houston [14th Dist.] 2002, no pet.) (failing to analyze or construe law correctly constitutes abuse of discretion). We will not reverse a trial court for an erroneous evi-dentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

B. Was Biological Paternity Adjudicated in an Earlier Proceeding?

Paternity, although uncontested, was an issue addressed and resolved by the trial court in the 1998 Suit Affecting the Parent Child Relationship. The agreed order establishes Roosevelt and Anita as “the biological parents” of R.J.P. and provides for child support, conserva-torship, and visitation. An agreed order “is accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding.” McCray v. McCray, 584 S.W.2d 279, 281 (Tex.1979); see Tex. Fam. Code Ann. § 160.637(a)(2) (Vernon 2002) (stating a determination of parentage is binding on all parties to an adjudication by a court acting under circumstances satisfying the jurisdictional requirements of Texas Family Code section 159.201). Thus, the finding within the 1998 order that Roosevelt is the biological father of R.J.P. has been adjudicated and has the binding effect of a final judgment rendered at the conclusion of an adversary proceeding.

C. Was the Adjudicated Fact Properly Challenged?

According to section 160.637(e) of the Texas Family Code, Roosevelt can only challenge the adjudicated fact of biological paternity “under the laws of this state relating to appeal, the vacating of judgments, or other judicial review.” Tex. Fam. Code Ann. § 160.637(e) (Vernon 2002). Roosevelt did not file any motions with the trial court after the 1998 adjudication, did not challenge the 1998 order on appeal, and he did not file a bill of review. See Tex.R. Civ. P. 329b(d), (f). Because Roosevelt did not challenge the 1998 order adjudicating his biological paternity “under the laws of this state,” we must determine whether the trial court was barred from relitigating Roosevelt’s biological paternity in determining his child support obligation.

D.Was the Trial Court Barred from Relitigating Biological Paternity?

To bar an action on the basis of collateral estoppel, the movant must prove the following elements: (1) the same fact issue from the first suit is sought to be litigated in the second suit; (2) the fact issue was essential to the judgment in the first suit; and (3) the parties were cast as adversaries in the first suit. In re T.S.S., 61 S.W.3d 481, 485 (Tex.App.-San Antonio 2001, pet. denied) (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, 962 S.W.2d 507, 521 (Tex.1998)).

The doctrine of collateral estoppel bars relitigation of biological paternity in a subsequent suit. See Dreyer v. Greene, 871 S.W.2d 697, 697-98 (Tex.1993) (holding trial court’s adjudication of biological paternity within a divorce decree barred any subsequent assertion of parentage to the contrary); In re T.S.S., 61 S.W.3d at 485 (holding collateral estoppel barred father from relitigating a paternity finding in divorce decree with DNA results as a defense to paying child support); Byrd v. Travelers Ins. Co., 275 S.W.2d 861, 863 (Tex.Civ.App.-San Antonio 1955, writ ref d n.r.e.) (holding parents of deceased worker were barred from relitigating a paternity finding in divorce decree which found their son had fathered a son during his marriage); see also Tex. Fam.Code Ann. § 159.315 (Vernon 2002) (providing that “[a] party whose parentage of a child has been previously determined by or under law may not plead nonparentage as a defense to a proceeding under [the Uniform Interstate Family Support Act]”); Baize v. Baize, 93 S.W.3d 197, 201 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (recognizing the principals of res judicata and collateral estoppel but distinguishing the facts because the issue of paternity was raised before the trial court signed a final judgment). Consistent with the aforementioned cases, the doctrine of collateral es-toppel barred Roosevelt from relitigating the finding that he is the biological father of R.J.P.

This issue of biological paternity could have been litigated in 1998. By his own admission, Roosevelt harbored doubts about his biological paternity to R.J.P. in 1997-and could have obtained genetic testing before he signed the 1998 order? however, he chose not to do so. Roosevelt did not challenge his adjudication of biological paternity until eleven years after R.J.P.’s birth- and more than four years after the 1998 original adjudication. In the aftermath of an increased child support obligation, Roosevelt sought to relitigate the previously adjudicated fact issue.- The 1998 judgment at issue in this case “should not be set aside bécause one of the individuals involved has become unhappy with the continued existence of it.” Ince v. Ince, 58 S.W.3d 187, 191 (Tex.App.-Waco 2001, no pet.).

We conclude collateral estoppel barred the issue of Roosevelt’s biological paternity from being relitigated in this suit because: (1)Roosevelt’s biological paternity was litigated in a prior suit; (2) the issue of Roosevelt’s paternity was essential to the 1998 judgment; and (3) the same parties were cast as adversaries in the first suit. Thus, the trial court abused its discretion when it considered the paternity results in its determination of Roosevelt’s. child support obligation.

E. Was the Trial Court’s Consideration of Paternity Harmful Error?

To rebut the child support guidelines presumed to be in the best interest of the child, pursuant to section 154.123 of the Texas Family Code, the trial court’s amended findings of fact and conclusions of law considered the following:

(1) That the minor child was not residing with [Anita], but has been residing with her aunt since June, 2003, in the State of Tennessee and is enrolled in School in Tennessee, while both parents reside in Houston, Harris County, Texas;
(2) That [Roosevelt] has been unable to exercise visitation consistently with the minor child since June of 2003;
(3) That [Roosevelt] was only furnished the . child’s telephone number after an August 27, 2003, hearing in this matter and- had not known the whereabouts of the child or how to contact the child. The Court ordered [Anita] to produce the telephone number of the child; and,
(4) That Petitioner, [Roosevelt], may not be the biological father of the minor child ...

See Tex. Fam.Code ANN. § 154.123 (Vernon 2002).

We hold the trial court’s erroneous consideration of biological paternity in this case was harmful, in that it probably caused the rendition of an improper judgment. We can find no basis in the record supporting the trial court’s determination that modifying Roosevelt’s child support obligation to zero dollars is in R.J.P.’s best interest. See Tex.R.App. P. 44.1(a). We sustain appellant’s first issue.

III. CONCLUSION

Having found harmful error, we reverse the portion of the trial court’s judgment modifying Roosevelt’s child support obligation to zero and remand for further proceedings. Because of our disposition of appellant’s first issue, we need not address appellant’s other issues.

YATES, J. concurs in result only.

HUDSON, J. dissents.

J. HARVEY HUDSON, Justice,

dissenting.

The majority holds that res judicata and collateral estoppel may bar a “father” from relitigating his paternity. Certainly, there is precedent for this position. However, because such precedent is neither persuasive nor controlling upon this court, I must respectfully dissent.

The record shows Anita and Roosevelt were married in 1988. They separated in 1991. Four months after separating, R.J.P. was born. In 1998, while still married, but living apart, Anita and Roosevelt entered into an agreed child support order in which Roosevelt was identified as the father of R.J.P. Pursuant to this order, Roosevelt began paying monthly child support. In 2003, the trial court increased the monthly child support obligation and entered an order withholding earnings to satisfy the child support obligation. Roosevelt then petitioned the trial court to terminate the order for wage withholding based on the fact that he is not the biological father of R.J.P. Roosevelt also filed a petition for a decree of divorce in which he again asserted that he is not the biological father of R.J.P. To support his contention, R.J.P. tendered a DNA Parentage Test Report made by DNA Diagnostic Center. Thereafter, the trial court ordered Anita and Roosevelt to submit themselves for DNA parentage testing at a lab designated by the court. Roosevelt complied with the court’s order, but Anita did not.

In 2004, the trial court entered a decree of divorce in which it acknowledged that Roosevelt had previously been adjudicated as the father of R.J.P. Accordingly, Roosevelt was named the possessory conservator of the child. However, the trial court did not order Roosevelt to make child support payments.

Although paternity, or the lack thereof, may now be scientifically determined to a virtual certainty, courts have historically disfavored suits to disestablish paternity even when absence, impotence, or sterility have seemed to conclusively support the plaintiff’s cause. Social policy considerations such as protecting the institution of marriage or the welfare of children have taken precedence over truth and equity. See Mary R. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. CenteR for Families 3, at 5 (2003). Other courts have emphasized the need for finality. See In re T.S.S., 61 S.W.3d 481, 485 (Tex.App.-San Antonio 2001, pet. denied) (“Texas courts are not free to adopt a rule that an adjudicated father may be relieved of his support obligations anytime he comes forward with DNA evidence post-decree that tends to exclude him as the biological father.”); Wise v. Fryar, 49 S.W.3d 450, 456 (Tex.App.-Eastland 2001, pet. denied), cert. denied, 534 U.S. 1079, 122 S.Ct. 808, 151 L.Ed.2d 694 (2002) (holding bill of review was not available to challenge paternity where the issue of paternity was resolved in a final, unappealed judgment).

However commendable the goal of protecting marriage, that institution is founded upon fidelity and trust. Once the confidence of a spouse is betrayed, reconciliation is difficult. Moreover, the welfare of children should not fall upon one who is merely a victim of fraud. Finally, reliance upon the doctrines of collateral estoppel and res judicata seems inappropriate in the context of a parent-child relationship. For example, in a suit affecting the parent-child relationship the trial court maintains continuing, exclusive jurisdiction over the parties and has the authority to modify the terms of that relationship as changing circumstances may require. To require a husband to challenge the filial relationship of what he believes to be his children (or forever waive the issue) would seem to needlessly encourage suits that must, of necessity, drive a wedge between father and child, threaten the already fragüe sense of security of chüdren caught up in the midst of a divorce, and perhaps forever damage the psyche of both the father and his chüdren.

Here, the trial court did not disestablish paternity. Rather, the court modified the former husband’s child support obligation. In making this decision, the trial court was vested with broad discretion. The Family Code provides that the trial court “may” order either or both parents to support a child. Tex. Fam.Code Ann. § 154.001(a) (Vernon 2002). Whüe the trial court “may” consider the statutory child support guidelines, the court “may” also consider any “other relevant evidence in addition to the factors listed in the guidelines.” Tex. FaM.Code Ann. § 156.402 (Vernon 2002). The court “may,” in fact, determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Tex. Fam.Code Ann. § 154.122(b) (Vernon 2002).

It is well established that matters regarding the exercise of discretion are within the sole province of the trial court, and the appellate court may not substitute the discretion of the trial court with its own. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.-Corpus Christi 2001, no pet.). If there is some probative and substantive evidence to support the judgment, the trial court did not abuse its discretion. In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.).

I would find the trial court did not abuse its discretion in deleting future chüd support. Accordingly, I must respectfully dissent.

      . The Attorney General did not plead res judi-cata or collateral estoppel as an affirmative defense in its answer to Roosevelt’s petition as required by Texas Rule of Civil Procedure 94. See Tex.R. Civ. P. 94 (requiring party to plead affirmative defenses in pleading to a preceding pleading). However, Roosevelt did not object when the Attorney General orally objected to the introduction of the paternity results at trial based on its prior adjudication. Because Roosevelt did not object, the affirmative defenses of res judicata and collateral estoppel were tried by consent of the parties. See Tex.R. Civ. P. 67; Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no pet.) (holding the affirmative defense of notice was tried by consent where husband did not plead notice as a defense and wife did not object to lack of pleadings when the defense was argued at trial); Whitley v. Whitley, 566 S.W.2d 660, 662 (Tex.App.-Beaumont 1978, no writ) (holding the affirmative defense of res judicata was tried by consent when it was not properly raised in husband's pleadings because wife did not object to husband’s oral plea of res judicata as being improperly pled).

      . The record reveals R.J.P. moved to Tennessee at the end of June 2003 to live with Anita’s sister for the summer and the following school year. The trial court was aware when it issued the October 2003 genetic testing order that R.J.P. would be available to receive the genetic testing over the Christmas holidays while she was visiting Houston.

      . The divorce decree conflicts with the trial court’s amended findings of fact and conclusions of law. Under the heading "CHILD SUPPORT,” the divorce decree orders "that Respondent shall not be required to pay child support effective from the 9th day of June, 2003.” (emphasis added). The first paragraph of the divorce decree identifies Anita as the Respondent and Roosevelt as the Petitioner. Therefore, the "four corners” of the divorce decree does not, in fact, reduce Roosevelt’s monthly child support obligation to zero.
      However, the trial court’s amended findings of fact and conclusions of law filed after the judgment clearly establish that Roosevelt's child support obligation is terminated. Findings of fact and conclusions of law filed after a judgment are controlling if they conflict with a previous judgment.' Capital Senior Mgmt. 1, Inc., v. Tex. Dep't of Human Servs., 132 S.W.3d 71, 74 n. 3 (Tex.App.-Austin 2004, pet. denied); Dickerson v. DeBarbieris, 964 S.W.2d 680, 684 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Therefore, Roosevelt’s monthly child support obligation was modified.

      . The dissent, without any authority, contends reliance on collateral estoppel and'res judica-ta are inappropriate in the context of a parent-child relationship because, for example, the trial court maintains continuous, exclusive jurisdiction and has the authority to modify the terms of that relationship as changing circumstances require. I respectfully disagree that litigation of biological paternity is a changing circumstance. As discussed herein, biological paternity could have been litigated in 1998. Allowing parties to relitigate this issue would burden the courts and traumatize the child, an outcome this court should not sanction. See, e.g., John G. and Marie Stella Kenedy Mem'l Found, v. Dewhurst, 90 S.W.3d 268, 288-89 (Tex.2002) ("[Rjes judicata and collateral estoppel both serve 'the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.' ” (quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979))).

      . If the error affects only part, but not all of the case, a judgment may be reversed only as to the part affected by the error. See Tex.R.App. P. 44.1(b); see also Tex.R.App. P. 61.2.