author: ADELE HEDGES, Chief Justice.

text:
    Frederick Wayne JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00892-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 2006.

      Patricia Sedita, Houston, for appellant.
    Peyton Peebles III, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
   OPINION

ADELE HEDGES, Chief Justice.

In February 1990, appellant, Frederick Wayne Johnson, was convicted of aggravated sexual assault of a child and sentenced to life in prison. In 2001, he filed a motion seeking DNA testing of biological evidence obtained during the investigation of the assault. The trial court ordered the testing and then held a hearing regarding the results. The trial court found that the results were “not favorable” to appellant under Chapter 64 of the Texas Code of Criminal Procedure. On appeal, appellant contends that the trial court erred in (1) considering new evidence filed by the State that was not presented in the original trial, and (2) finding that the results were not favorable. We affirm.

Background

At trial, Rhonda Kelso testified that on August 31, 1988, she was walking toward her house when appellant tried to entice her to approach him, but she ignored him. Later upon leaving her house, she saw him again and hid her face behind her umbrella. When she returned home, she saw him a third time, and he grabbed her by the arm and told her “[C]ome here, I’ve got to tell you something.” She managed to pull away and continue walking, but a short time later she heard a scream and turned around to see that appellant had grabbed a female and was pulling her into a building. The female said “okay, okay” but was trying to resist. Appellant steadily pulled her until they were in the building. Kelso found a telephone and called 911. She also asked a group of electrical workers for help and one of them called 911 as well. A police officer arrived, and Kelso asked one of the men she had asked for help to show the officer the correct building. He did so, and the officer entered the building and came out a few minutes later with appellant and a girl. Kelso stated that she was able to “get a good look” at appellant when he exited the building in handcuffs. She identified appellant as the same man who had accosted her earlier and who had dragged the girl into the building.

The complainant testified that on August 31, 1988, she was sixteen years old. She was walking away from her house when appellant crossed the street and asked her if she knew where a particular street was located. She did not know and kept walking, and he walked the other way. She then felt like someone was following her, and she turned around to see appellant behind her. She screamed, and he grabbed her by the hair and pushed something to her back. He told her to stop screaming or he would kill her, and she stopped screaming. He then told her to walk across the street. She was terrified and tried to pull away, but he had a steady grip on her and took her inside an abandoned building to a room with a lot of glass and dirt on the floor. He again threatened to kill her and ordered her to take off her clothes. She took off her shorts and underwear; he told her to lie down on the floor and she did. Appellant fondled her breasts and then unzipped his pants and put his penis in her vagina. She was crying and felt scared. After about fifteen minutes, appellant told her to get up and that he was taking her to a house. She thought he was going to kill her. A uniformed police officer then walked into the room and handcuffed and arrested appellant. Complainant was taken home and then to the hospital where she was examined by a doctor, and a rape kit was prepared. She stated that she had never seen appellant before the day of the assault.

Officer Willie C. Curry, of the Houston Police Department, testified that on August 31, 1988, he responded to a call that a possible rape was in progress. When he arrived at the scene, a man directed him to a particular building, and he parked his vehicle and entered the building with his weapon drawn. He heard a man’s voice say “[N]ow we are going to go to my house.” Officer Curry entered the room where the voice had come from as appellant and complainant were exiting. Curry told appellant to get down on the floor; he then handcuffed appellant and walked him out of the building. Appellant told Curry that complainant was his wife or girlfriend.

Dr. Robert Noel testified that he performed a physical examination of complainant on August 31, 1988. She had sand in her hair and on her shoulders, neck, and back. She had a small laceration on her back. In examining complainant’s vaginal vault, he found sand, a string of blue textile material, and a white substance that resembled semen. He described finding the string in that location as being particularly unusual. All three of the prior witnesses, Kelso, complainant, and Curry, had testified that appellant was wearing a blue sweat shirt and blue warmup pants on the day of the assault. In describing her attire on that day, complainant stated the color of each garment but did not identify any of them as being blue. Noel further testified that he asked complainant if she had had any sexual activity in the 72 hours prior to the examination, and she replied “no.” Although Noel did not specifically testify that complainant told him that she had been sexually active in the past, his testimony suggests that she told him she had been. In explaining his procedures for such examinations, Noel stated that he first asks whether the patient has ever had sexual intercourse and then, presumably based on the answer, he asks whether the patient has had sexual intercourse in the prior 72 hours.

Cleva West, a serologist with the Houston Police Department Crime Laboratory, testified that she obtained a cutting from complainant’s underwear and the vaginal swabs taken during the physical examination. She performed tests on those items and determined that semen was present on them.

Appellant did not testify at trial. No evidence was offered to suggest any reason why appellant would have been arrested by Officer Curry in the room of the abandoned building with complainant, other than that he was in fact the man that Kelso saw abduct complainant and whom complainant said raped her.

Pursuant to the trial court’s order of October 28, 2002, Kristi P. Wimsatt, a criminalist with the Texas Department of Public Safety Laboratory in Houston, conducted DNA testing on the cutting from complainant’s underwear, the vaginal swabs taken during her physical examination, and a sample of appellant’s blood. The test results on the underwear cutting showed that the DNA in the semen stain did not match appellant’s DNA. The test performed on the vaginal swab was unable to ascertain a DNA profile.

Also attached to the State’s motion for findings of fact was an affidavit signed by complainant, in which she averred, among other things, that she had a boyfriend at the time of the assault and was sexually active during that period of time. However, she stated that she does not recall the exact date or time that she had sexual relations with her boyfriend prior to the assault. She further stated that she does not recall whether appellant ejaculated during the assault.

Additionally attached to the State’s motion were the results of DNA testing conducted in 1989. These results indicated that the DNA found on the vaginal swabs matched appellant’s DNA profile from a blood sample. However, apparently owing to testing limitations of the time, the results state that the DNA on the swabs would match approximately 1 in every 325 members of the North American black male population and 1 in every 5,554 members of the North American white male population. The 1989 testing was unable to isolate a DNA profile on the underwear cutting for comparison. These results were not introduced in the original trial.

New Evidence

In his second issue, appellant contends that the trial court erred in considering new evidence that was not presented in the original trial. Specifically, appellant argues that the court should not have considered the complainant’s affidavit filed by the State. In his briefing of this issue on appeal, however, appellant provides no citation to the record or to authority. See Tex.R.App. P. 38.1(h) (requiring that appellant’s brief must contain appropriate citations to the record and to authority). Accordingly, this issue is improperly briefed. See Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000) (holding that even a novel argument must be grounded in the relevant jurisprudential framework for evaluating the claim). Furthermore, in the trial court, although defense counsel urged the court not to consider the affidavit in making its decision, counsel never objected to the document, and the trial court never ruled on any such objection or argument. Accordingly, this issue was not preserved for appellate review. See Tex.R.App. P. 33.1(b) (providing that to preserve error a party must make a timely and sufficiently specific request, objection, or motion and obtain a ruling thereon or object to the court’s refusal to rule). Consequently, appellant’s second issue is overruled.

Results Not Favorable

In his first issue, appellant contends that the trial court erred in finding that the DNA test results were not favorable to him. Under the version of article 64.04 applicable at the time appellant filed his motion, once a trial court has ordered and received DNA testing results, the court must “hold a hearing and make a finding as to whether the results are favorable to the convicted person.” Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, amended by Act of Apr. 25, 2003, 78th Leg., R.S., ch.13, § 4, 2003 Tex. Gen. Laws 16. Results are considered favorable under the article only if “had the results been available before or during the trial of the offense, it is reasonably probable that the person would not have been prosecuted or convicted.” Id. The trial court specifically found that the DNA test results were not favorable to appellant under article 64.04.

We review the court’s decision under a bifurcated standard, providing almost total deference to the court’s determination of historical fact issues and application-of-law-to-fact issues that turn on credibility or demeanor, but reviewing de novo other issues involving the application of law to facts. Baggett v. State, 110 S.W.3d 704, 706 (Tex.App.-Houston [14th Dist.] 2003, pet. refd). Although there may exist subsidiary fact issues that are reviewed deferentially, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is therefore reviewed de novo. Id. (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002) (discussing article 64.03, not 64.04)).

In order to demonstrate a “reasonable probability” that he would not have been prosecuted or convicted, as required under article 64.04, appellant must show a reasonable probability that exculpatory DNA tests would prove his innocence. Id. (citing Rivera, 89 S.W.3d at 59). A reasonable probability of innocence exists when there is a probability sufficient to undermine confidence in the outcome. Id. (citing Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999)). A reasonable probability of innocence does not exist if there is sufficient evidence, other than the DNA evidence in question, to establish guilt. Id. (citing Rivera, 89 S.W.3d at 60). Thus, a trial court does not err by finding DNA test results “not favorable” if the post-conviction results fail to demonstrate a reasonable probability of innocence in the face of other evidence that is sufficient to establish guilt. Id.

Here, the DNA test results demonstrate that appellant could not have been the source of the semen stain on the cutting from complainant’s underwear. Although this evidence is certainly exculpatory in nature, we do not consider it in a vacuum. It must be evaluated in the context of the other relevant evidence, particularly: (1) the results of DNA testing on the vaginal swabs, (2) the unusually persuasive eyewitness testimony, and (3) the evidence that complainant was sexually active during the period of time in which the assault occurred.

The 2004 DNA testing was unable to isolate a DNA profile on the vaginal swabs taken during complainant’s physical examination. Additionally, the DNA testing performed in 1989 found that appellant could in fact have been the source of the semen Dr. Noel observed in complainant’s vaginal cavity. Thus, it is an open question, not answered by the 2004 testing, whether appellant was the source of the semen inside complainant’s vaginal cavity but not the source of the semen on the underwear cutting.

Furthermore, the eyewitness testimony in this case was particularly compelling and in several respects less open to mis-identification than in many cases based primarily on eyewitness testimony. Complainant’s identification of appellant as her attacker was corroborated by other witnesses who saw appellant with complainant immediately before and immediately after the assault. As described in detail above, Kelso saw appellant three times that day in the same area in which he abducted complainant; indeed, she testified that appellant grabbed her as well, but she managed to get away. Kelso additionally testified that the man whom she saw being taken out of the building in handcuffs was the same man who had dragged complainant into the building. Officer Curry testified that he discovered appellant in a room of an abandoned building with complainant. Curry, therefore, did not arrest appellant well after the time of the offense based on a description provided by an eyewitness, as often occurs in eyewitness cases; he arrested appellant in a room where appellant was alone with the victim immediately after the assault. Cf. Torres v. State, 104 S.W.3d 638, 641 (Tex.App.Houston [1st Dist.] 2003, pet. ref'd) (noting appellant was arrested at scene of the crime after loading stolen items in a vehicle). Taken together, the eyewitness testimony of Kelso, complainant, and Curry presents a seamless thread that renders the possibility of mistaken identity particularly slight. Their testimony was also supported by physical evidence garnered after the assault, including, especially, the blue string discovered by Dr. Noel in complainant’s vaginal cavity. Further, appellant offered no explanation at trial to explain why he was alone in the room with complainant.

Lastly, both complainant’s affidavit attached to the State’s motion and Dr. Noel’s testimony at trial suggested that complainant was sexually active during the period of time in which the assault occurred. That provides an alternative explanation for the source of the semen stain on the underwear cutting. Based on our review of the evidence as a whole, we conclude that the DNA test results do not demonstrate a reasonable probability of appellant’s innocence because there was sufficient other evidence to establish guilt. See Baggett, 110 S.W.3d at 706. Consequently, the trial court did not err in finding that the results were not favorable to appellant. Appellant’s second issue is overruled.

We affirm the trial court’s order.

      . Indeed, the trial judge never indicated whether she intended to or did consider the affidavit in making her determination. Thus, we cannot infer that the court implicitly rejected defense counsel's arguments. See Tex. R.App.P. 33.1(b).

      . The 2003 amendment to article 64.04 "applies only to a convicted person who on or after the effective date of this Act [September 1, 2003] submits a motion for forensic DNA testing.” Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 8, 9, 2003 Tex. Gen. Laws 16, 17; see also Booker v. State, 155 S.W.3d 259, 262 n. 2 (Tex.App.-Dallas 2004, no pet.). The changes affected by the amendment, however, appear grammatical in nature.

      . Appellant postulates that because semen was found in complainant’s vaginal cavity, the stain on her underwear must have been caused by leakage of this same semen, and thus, it must have been from the same source. Although this is a possible conclusion, it does not appear to be the only possible conclusion; indeed, appellant provided no evidence, authority, or further reasoning in support of this conclusion. Further, complainant did not testify at trial that appellant ejaculated during the assault, and she stated in her affidavit that she did not remember if he ejaculated.
      Additionally, the Court of Criminal Appeals opinion in Smith v. State, 165 S.W.3d 361 (Tex.Crim.App.2005), is distinguishable from the present case. In Smith, the Court reversed lower court rulings under article 64.03 and ordered DNA testing to be performed on biological material. 165 S.W.3d at 365. The State argued that because the victim lived with her boyfriend, the seminal fluid that was found during her physical examination may have been her boyfriend's and not her attacker's; thus, DNA testing would not be exculpatory, even assuming it did not match the defendant's DNA. Id. at 364. The court rejected this argument because (1) the victim testified at trial that her attacker left seminal fluid during the attack, and (2) there was no evidence that the victim had intercourse with anyone other than her attacker during the 24 hours preceding the exam. Id. at 364-65. In the present case, the DNA testing that excluded appellant as the source was not done on the fluid found inside complainant's vaginal cavity but was performed on a stain found on her underwear, which could have been left more than 24 or even 72 hours earlier. Additionally, as mentioned above, there was no evidence that appellant ejaculated during the assault other than the presence of semen in complainant’s vaginal cavity and only conjecture that the source of the semen on the underwear cutting was the same as the source of the semen in the vaginal cavity. For these reasons, the present case is distinguishable from Smith.

      . The similarity and consistency of details in the testimony of the three witnesses is remarkable, ranging from the description of the building to the description of appellant, his clothes, and his hairstyle.


source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Charles Michael WHITMIRE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00825-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 2006.

      Roland B. Moore III, Houston, for appellant.
    Carmen Castillo Mitchell, Houston, for appellee.
    Panel consists of Justices FOWLER, FROST, and GUZMAN.
   OPINION

WANDA McKEE FOWLER, Justice.

We withdraw our opinion of November 17, 2005, and issue this substitute opinion.

A jury convicted appellant of capital murder and the court imposed an automatic life sentence. On appeal, appellant raises six points of error. In his first and second, he challenges the legal and factual sufficiency of the evidence. In the third, he challenges the admissibility of his written confession. In his fourth, he challenges the admissibility of evidence relating to a potential homosexual relationship. In the fifth, appellant raises a due process challenge to the State’s use of mutually inconsistent theories in separate trials of accused co-conspirators. Finally, appellant challenges the introduction of certain photographs of the complainant.

Factual and Procedural Background

On September 22, 2002, appellant, Charles Michael Whitmire, went to 5431 Firefly in Houston, Texas with two other men, Richard Trent Schneider and Jason Leon Ray. According to appellant’s confession, the three went there to rob Jason “Jay” Turner of his drugs and money. While they were there, Turner was fatally shot once in the head.

Turner lived with his girlfriend, Roxanne Ochoa, in one bedroom of the Firefly house. Several others also resided in the Firefly house, including “Sammy Jr.” Appellant also had resided in the house. He and Turner had disagreements over appellant’s alleged taking of toilet paper and unauthorized use of Turner’s car. As a result of these arguments, appellant moved out.

Before the murder, appellant asked Schneider and Ray to go with him to the Firefly house. He met the two through his sister. In his confession, appellant admitted to planning the robbery. Appellant, Schneider and Ray went to the Firefly house and left after waiting for Turner to return. While driving away, they saw Turner, exchanged greetings with him, and returned to the house. When they reentered the house, Ray grabbed Ochoa, held a knife to her head, and either Schneider or appellant shot Turner between the eyes. The three neither demanded nor took any property and promptly left the scene.

When the police questioned appellant about Turner’s murder, he confessed only to planning the robbery; in a separate interview with police, Schneider confessed to being the shooter. Ultimately, - appellant was indicted and tried for the capital murder of Turner. The jury heard testimony that appellant was the shooter. Receiving instruction on principal, party and conspirator liability, the jury convicted appellant of capital murder. The court imposed a life sentence.

Analysis

I. Legal Sufficiency

In his first point of error, appellant alleges the evidence was legally insufficient to sustain his conviction. In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000) (en banc). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id.

The court below instructed the jury it could convict appellant of capital murder on any of three bases: (1) as the principal shooter; (2) as a party to the offense; or (3) under conspirator liability. The jury returned a general verdict of guilt for capital murder. We will affirm if the evidence is sufficient to support the verdict on any of the bases. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992) (en banc).

Section 19.03 of the Penal Code makes it a capital offense to intentionally commit murder while in the course of a robbery or attempted robbery. Tex. Pen.Code § 19.03(a)(2). Even if a defendant does not commit murder himself, he may be found guilty as a party to the crime if he acts with the intent to promote or assist in the commission of the murder. Tex. Pen. Code § 7.02(a)(2). He also may be liable as a conspirator if there was a conspiracy to commit a robbery and a co-conspirator committed a reasonably foreseeable murder in furtherance of the conspiracy. Tex. Pen.Code § 7.02(b).

Appellant argues the jury could not convict because he was not the shooter, he had no intent to kill Turner, he had no idea Schneider was armed, and thus he did not know Schneider would Mil Turner. The State need not prove beyond a reasonable doubt that appellant was the shooter when the jury receives instruction on party or conspirator liability. See Rabbani, 847 S.W.2d at 558; Hernandez v. State, 171 S.W.3d 347, 353 (Tex.App.-Houston [14 Dist.], 2005 no pet. h.). Neither is it necessary to prove intent, only that the murder was foreseeable. Tex. Pen.Code § 7.02(b).

According to appellant’s confession, he planned to rob Turner with Schneider and Ray’s help. He enlisted the help of two armed men to rob a potentially-armed drug dealer. He and his co-conspirators returned to the house when they saw Turner return to the house, indicating Turner was the true reason for their trip. While at the Firefly house, appellant did not attempt to stop the confrontation. Appellant made no attempt to render aid to Turner and never reported a crime. Viewed in the light most favorable to the verdict, there is ample evidence to support the conviction, even if appellant did not intend to kill Turner and even if he did not actually shoot Turner. It is perfectly foreseeable that a murder would result from an armed confrontation such as this one. The evidence is legally sufficient to support the conviction and accordingly we overrule appellant’s first point of error.

II. Factual Sufficiency

Appellant also raises the issue of factual sufficiency. When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004), cert. denied, 544 U.S. 950, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005). Again, we will affirm if the evidence is sufficient to sup port the verdict on any of the bases upon which the jury received instruction. See Rabbani 847 S.W.2d at 558. While we have reviewed the entire record and have considered all evidence presented at trial, we cannot re-weigh the evidence and supplant the role of the jury to resolve conflicts in testimony and evaluate witness credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence is factually sufficient as well.

At trial, appellant testified on his own behalf and contested the State’s theory that he planned the robbery and thus could be criminally liable as a conspirator. Appellant testified that he had no intention of robbing, much less murdering Turner. Rather, completely disavowing his confession, he claimed he simply needed a ride to the Firefly house in order to meet another occupant, Sammy Jr., concerning an unfinished tattoo for one of appellant’s acquaintances. According to appellant, his sister introduced him to Schneider and Ray the day of the murder and they agreed to give him a ride. Also, he testified that the two must have planned the robbery independently while he slept in the car because Schneider and Ray were friends. Appellant further testified that he had no idea that either Schneider or Ray were armed. Based on this testimony, appellant argues the evidence showed he did not devise the plan to rob Turner, and played no role whatsoever in killing Turner. Instead, he simply needed a ride to meet Sammy Jr. while Schneider and Ray used the opportunity for their own purposes. Yet, merely offering an alternate theory does not mandate the jury accept it.

The jury may reject some or all of a witness’s testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000) (en banc). When presented with an issue of witness credibility, we do not sit as jurors deciding which witnesses to believe; that is the jury’s domain.

Having reviewed all the evidence, we do not find the evidence too weak to support a jury verdict for capital murder based on conspiracy. We overrule appellant’s second point of error.

III. Admissibility of Written Confession

In his third point of error, appellant contends his confession was involuntary due to lack of sleep and thus the court erred by admitting it into evidence. When a defendant makes a pretrial challenge to the voluntariness and admissibility of his confession, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995) (en banc). The court, outside the presence of the jury, must conduct a hearing to determine for itself whether the statement was voluntarily given. Tex.Code Crim. Proc. art. 38.22 section 6; see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (establishing the procedure for the voluntariness hearing). Vol-untariness is determined considering the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App.1997) (en banc). We do not disturb the court’s ruling unless there is a clear abuse of discretion. Alvarado, 912 S.W.2d at 211. When, as here, the determination revolves around historical facts and witness credibility, we give the court almost total deference. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (en banc)).

Appellant argued below that he had been under the influence of ephedrine before police took him to jail. As a result, he claimed to have had no sleep for twenty-four hours prior to giving his statement. Because of this alleged lack of sleep, appellant contends his statement was not truly voluntary. His own actions at the jail and trial testimony belie that assertion.

The trial court. heard testimony that appellant appeared coherent and awake during questioning. He received all of his warnings and the police treated him with courtesy and respect. When appellant asked for food and drink, they gave it to him. He did not, however, ask to sleep and there is no indication in the record that the police purposefully sought to take advantage of any fatigue. On the contrary, appellant and Sergeant Bozeman both testified appellant was asleep when retrieved for questioning. Even in his trial testimony, appellant testified he slept at his sister’s motel room in the twenty-four hours before the questioning. Considering this evidence and evaluating the competing stories, the court below was justified in finding the confession voluntary and not tainted by lack of sleep.

Even had the court below believed appellant had been sleep deprived, such deprivation would not be enough to warrant suppression. See Barney v. State, 698 S.W.2d 114, 121 (Tex.Crim.App.1985) (en banc) (holding that lack of sleep for sixteen hours will not, by itself, render a confession involuntary). The evaluation is of the totality of the circumstances. Creager, 952 S.W.2d at 855. Here, lack of sleep alone is simply not a factor to outweigh all others. We cannot say that the court abused its discretion in refusing to suppress the confession. We overrule appellant’s third point of error.

IV. Evidence of Homosexual Relationship

Appellant’s fourth point of error challenges questioning regarding whether or not appellant offered to perform sexual favors on Turner in exchange for forgiveness of a drug debt. According to appellant, the prosecutor engaged in misconduct by violating the motion in limine when he asked the question about alleged sexual favors, and the trial court committed reversible error when it overruled the objection. We review the admission of evidence for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g) (en banc). So long as the court’s decision was within the zone of reasonable disagreement, we will not disturb it on appeal. Id. Because we are reluctant to reverse an exercise of discretion, we will uphold it if there is any basis to sustain the court’s ruling, even if not the basis upon which the court relied. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) (en banc) (citations omitted).

At trial, appellant raised two objections and he repeats those here. First, he argues that the testimony is inadmissible character evidence under Texas Rule of Evidence 404(b). Second, he argues that the testimony was more prejudicial than probative so as to violate Texas Rule of Evidence 403. We disagree.

Rule 404(b) prohibits the admission of “other crimes, wrongs or acts ... to prove the character of a person in order to show action in conformity therewith....” Rule 404(b) also lists several exceptions to the general prohibition of character evidence. While appellant correctly cites Bishop v. State as classifying sexual relations of this sort as an “act” under the rule, he cannot satisfy the rest of the rule. 869 S.W.2d 342, 345 (Tex.Crim.App.1993) (en banc). The evidence must both describe an “act” and be for the purpose of showing the defendant acted in conformity with that prior act. If not shown to be character evidence as described in the rule, then the evidence is not presumptively excluded.

Appellant did not below, and does not on appeal, explain how the evidence served to show some sort of “action in conformity therewith.” Stated differently, there is no indication that the State meant for the jury to understand that appellant’s possible offer of sexual favors meant that he acted in conformity with that behavior. Rather, it was offered and admitted to impeach appellant’s testimony regarding his relationship with Turner, the deceased complainant. We have reviewed the trial objection and the briefing and conclude that this is not character evidence falling under Rule 404(b) because it was not offered to show conformity.

However, the objection under Rule 403 merits greater discussion. Texas courts have held that evidence of sexual behavior outside of what society deems acceptable is inherently inflammatory. See Bishop, 869 S.W.2d at 346. For evidence to be admitted, it first must be relevant. See Tex.R. Evid. 401, 402. Here, appellant does not argue that the evidence was irrelevant. See Tex.Code Crim. Proc. art. 38.36(a) (allowing evidence of the previous relationship between defendant and deceased in a murder trial). Rather, he focuses on the potential for prejudice as discussed in Rule 403. Thus, our analysis concerns whether that relevant evidence nonetheless should have been excluded because the potential for prejudice substantially outweighed its probative value. We start from the presumption that the probative value outweighs prejudicial effect. Montgomery, 810 S.W.2d at 389.

Appellant relies heavily on Bishop and Blakeney v. State, 911 S.W.2d 508 (Tex.App.-Austin 1995, no pet.). Those cases determined that admitting certain evidence of sexual practices and proclivities was not only error, but also harmful. Bishop, 869 S.W.2d at 346-47; Blakeney, 911 S.W.2d at 516-17. Both are distinguishable. Both of those cases involved sexual assault crimes, not capital murder as we have here. In Bishop, the court determined that evidence of previous sexual conduct was unnecessary given the other evidence tying the defendant to the crime. 869 S.W.2d at 346. In Blakeney, the court of appeals reversed because evidence of the defendant’s homosexuality was irrelevant and served no purpose other than to suggest that all homosexuals molest young boys. 911 S.W.2d at 515. Both Bishop and Blakeney involved valid challenges under Rule 404(b) because the prosecution admitted evidence of sexual practices to show that the defendants likely acted in conformity with their sexual histories and preferences. Further, both cases’ holdings rested squarely on Rule 404(b) violations, not Rule 403. Neither is persuasive on the facts of this case because the evidence in question, which included evidence of appellant’s alleged sexual preference, was not admitted to show that he acted in conformity with that preference.

This case involves capital murder, not sexual assault. As discussed already, there is no hint that the evidence came in to show appellant acted in conformity with any homosexual characteristic. Rather, the judge ruled the evidence admissible on the basis of impeachment. Even if that were not a correct ruling, the evidence certainly could come in to show the relationship between appellant and decedent. See Tex.Code Cmm. Proc. art. 38.36(a) (allowing in evidence as to all relevant facts of the previous relationship of the accused and deceased in a murder trial). We cannot say it was unnecessary as in Bishop. While the prosecutor’s violation of the motion in limine may have been poor form, prosecutorial misconduct' is not raised. Further, the exchange involved only one question regarding the possible exchange of sexual favors for forgiveness of a drug debt. Appellant flatly denied the allegation, and the cross-examination continued on other matters. The prosecutor did not dwell on the allegation in his questioning or closing argument. Appellant denied any ongoing problems in his relationship with Turner. We cannot say the prejudice outweighed the probative value of the impeachment evidence or exploring the true nature of appellant and Turner’s relationship.

Because we find no merit in appellant’s Rule 404(b) challenge and he cannot overcome the presumption of admissibility under Rule 403, we overrule appellant’s fourth point of error.

V. Due Process

In his fifth point of error, appellant urges this Court to reconsider its precedent and hold that a prosecutor violates a defendant’s Due Process rights when she argues mutually inconsistent theories of guilt in separate trials of co-conspirators. Basing his argument on one necessarily related to collateral estoppel, appellant argues it is “fundamentally unfair” to convict two men of being the shooter of only one fatal shot. See generally Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir.2000) (holding that arguing factually contradictory theories to get multiple convictions is fundamentally unfair and a denial of due process); contra Nichols v. Scott, 69 F.3d 1255, 1270 (5th Cir.1995) (declining to apply collateral estoppel to criminal prosecutions of different defendants). However, this argument is waived.

To preserve error for appeal of alleged improper jury argument, a party must both object and pursue that objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996) (en banc). If the judge refuses to rule on the objection, then an appellant may still preserve error by objecting to the refusal. Tex.R.App. P. 33.1(a)(2)(B); Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App.2003). Here, appellant objected to the jury argument, but did not pursue that to an adverse ruling. He made his objection and the judge ordered trial counsel to “sit down” and said that he could put the objection on the record later. Appellant did not object to the court’s failure to rule, and though he did make the due process objection later, he did so only after the jury had retired and the judge could not cure any alleged error. That is not enough to preserve error. Appellant either must secure an adverse ruling at a time when the judge may correct the problem by issuing an instruction to disregard, or must object to the judge’s refusal to rule on the objection. Without an adverse ruling or an objection to the judge’s refusal to rule, there is no error preserved for our review. Cockrell, 933 S.W.2d at 89.

VI. Photographic Evidence

In a final point of error, appellant argues that the court erroneously entered a photograph into evidence over objection that it is grisly, gruesome, and is repetitive of another photograph. Again, the standard for reviewing the court’s admission of this evidence over a Rule 403 objection is abuse of discretion. If the decision to admit was within the zone of reasonable disagreement, we will not reverse. The Court of Criminal Appeals has laid out several factors, though not exclusive, to consider when evaluating photographic evidence of this sort. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App.1992) (en banc) (citing Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991) (en banc)). A court is to consider gruesomeness, detail, size, whether in color or black and white, whether close-up, and whether the body is naked or clothed. So long as the court concludes the evidence is relevant and the jury will not resolve issues on an inappropriate emotional basis, the evidence is admissible. Id.

The photograph is of Turner’s head after the shooting. It is a close-up of the face showing the bullet entry. After reviewing the record, we find no actual reference to the photograph in testimony, though the court admitted it. Recalling that we presume probative value to outweigh any prejudicial effect, Montgomery, 810 S.W.2d at 389, we cannot say the picture inflamed the jurors to convict on an irrational basis. The factors do not weigh in favor of appellant’s argument. From what we can tell, it was not enlarged or changed in any way. Though it is in color and shows the entry wound, the photograph is not gory or gruesome. The evidence was relevant and certainly could have aided the jury in understanding the testimony regarding the wound and complainant’s death. Additionally, given that it appears to have been ignored during testimony, we cannot understand how it was repetitive or could have caused unfair prejudice. The prosecutor evidently did not refer to the picture even in his closing. Neither did the prosecutor use it in an inappropriate way. Appellant’s sixth point of error is overruled.

Conclusion

We overrule each of appellant’s issues and affirm the trial court’s judgment.

      . Appellant raises alleged prosecutorial misconduct as only a factor to consider in our weighing of prejudice, but we do not read his briefs as raising a separate point of error on the basis of alleged prosecutorial misconduct. Additionally, appellant cites no authority for the proposition that prosecutorial misconduct is a factor when considering a Rule 403 challenge.

      . Blakeney is not binding upon this Court, and while we acknowledge that the challenge raised in that case fell under the general purview of Rule 404(b), we express no opinion as to the correctness of that decision.

      . Although appellant references both the United States and Texas Constitutions’ protection of due process on appeal, he made no specific reference at trial as to which supported his claim.


author: J. HARVEY HUDSON, Justice.

text:
    In re AUTOTAINMENT PARTNERS LIMITED PARTNERSHIP d/b/a Planet Ford and Worldwide Autotainment, Inc., Relators.
    No. 14-05-01035-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 20, 2006.

      Donald W. Gould, II, Houston, for rela-tors.
    Michael L. Atkinson, Conroe, for respondent.
    Panel consists of Justices HUDSON, FROST and SEYMORE.
   OPINION

J. HARVEY HUDSON, Justice.

Relators, Autotainment Partners Limited Partnership, d/b/a Planet Ford (“Planet Ford”) and Worldwide Autotainment, Inc., seek a writ of mandamus ordering respondent, the Honorable Sharolyn P. Wood, to vacate an order denying their motion to compel arbitration. For the reasons that follow, we conditionally grant relators’ petition.

Background

Real party in interest, Solomon Israel, worked as a car salesman for Planet Ford, a non-subscriber under the Texas Workers’ Compensation Act. Upon accepting employment, Israel was advised that as a condition of his employment, he would have to agree to arbitrate any disputes with Planet Ford under Planet Ford’s “Dispute Resolution Program” (the “Program”). Israel signed an acknowledgment form stating he had received training on the Program and a copy of the document.

In August 2003, Israel was injured while working on Planet Ford’s premises. He was placed on paid leave and received medical coverage through Planet Ford’s insurance plan. Israel returned to work in April 2004, but suffered another injury, “off the job.” Israel was again placed on paid leave. In September 2004, Planet Ford determined that Israel’s injuries were not work related and ceased paying him. Israel then wrote a letter to Planet Ford claiming he was being retaliated against for “whistle blowing” and copied the letter to local news media and government entities. Planet Ford investigated the claims made in the letter and upon completion of its investigation terminated Israel’s employment effective March 2005. Shortly thereafter, Israel filed suit against Planet Ford for the injuries he sustained in August 2003. Planet Ford moved to compel arbitration under the terms of the Program.

At the hearing on the motion to compel, relators argued Israel’s claim was subject to arbitration, relying upon his signed acknowledgment, and asserted he was aware of that fact because he filed a demand for arbitration on two occasions, in February 2005 and March 2005. Israel did not respond to the motion to compel arbitration, but at the hearing his counsel argued (1) the acknowledgment was not an agreement to arbitrate, and (2) relying on In re Kepka, 178 S.W.3d 279 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding), that the Program was unenforceable because the Federal Arbitration Act (“FAA”) was reverse preempted. After hearing argument, the trial court denied the motion to compel, concluding it was not a case subject to arbitration. Relators filed a motion to reconsider and, after a hearing, the trial court signed an order denying the motion. In this court, relators seek a writ of mandamus ordering the trial court judge to withdraw her ruling and compel Israel to arbitrate his dispute.

Standard of Review

A party seeking to compel arbitration by mandamus must first establish that an agreement subject to the FAA exists. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001) (orig.proeeed-ing). Once existence of the agreement is established, the movant must show that the claims asserted are within the scope of the agreement. Id. Because federal policy favors arbitration, a presumption exists favoring agreements to arbitrate under the FAA, and any doubts about the agreement’s scope are resolved in favor of arbitration. Id. If the movant proves existence of a valid agreement governing the dispute, the burden then shifts to the opposing party to present evidence of a defense to enforcing the agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Absent a defense to enforcing the arbitration agreement, the trial court has no discretion but to compel arbitration and stay its proceedings once the existence and application of the agreement has been shown. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002). When a trial court erroneously denies a party’s motion to compel arbitration under the FAA, the party has no adequate remedy at law and is entitled to a writ of mandamus. See, e.g., In re First-Merit Bank, 52 S.W.3d at 753.

Analysis

Relators argue the trial court abused its discretion by not compelling arbitration because they furnished (1) a copy of a binding arbitration agreement, governed by the FAA; (2) the acknowledgment signed by Israel indicating he had received a copy of the agreement and training on the Program; and (3) established that Israel’s claim falls within the scope of the agreement. Israel argues the signed acknowledgment form is not an arbitration agreement and therefore, relators failed to prove there is an agreement to arbitrate. He further argues that, even if he is contractually bound to arbitration, (1) the Program expressly does not apply to workers’ compensation claims, and (2) the McCar-ran-Ferguson Act reverse preempts the FAA.

1. Did Relators Establish There is a Valid Agreement to Arbitrate?

Under the FAA, an agreement to arbitrate that is valid under general principles of state contract law and involves interstate commerce is “valid, irrevocable, and enforceable.” 9 U.S.C. § 2; In re Halliburton Co., 80 S.W.3d 566, 568 (Tex.2002). The trial court’s determination of the arbitration agreement’s validity is a legal question subject to de novo review. J.M. Davidson, 128 S.W.3d at 223.

Here, relators provided a verified copy of the Program, stating that employee disputes will be submitted to binding arbitration and governed by the FAA. The Program also provides that its terms modify the at-will employment relationship and acceptance or continuation of employment means the individual is “bound by the terms of the Program as contained in the Plan Document and Rules.” Israel’s signed acknowledgment states the following:

I, hereby acknowledge that I have received a copy of the World Class Automotive Group Dispute Resolution Program. In addition I have been provided with training/orientation on the [Program] and understand that World Class Automotive Group has implemented such a program. I have been given the opportunity to ask any questions that I may have and I further understand should I have any questions in the future, I may talk with my supervisor or utilize the employee hotline as outlined in the [Program].

In sum, relators showed there is a valid arbitration agreement that is subject to the FAA. See Smith v. H.E. Butt Grocery Co., 18 S.W.3d 910, 911-12 (Tex.App.Beaumont 2000, pet. denied) (finding evidence of agreement with broadly worded scope met movant’s burden to compel arbitration under FAA).

Israel argues, however, that the acknowledgment is not proof of a binding contract because (1) he did not sign it, and (2) it does not apprise him that he will be bound to arbitration. But, the FAA does not require an arbitration clause be signed, so long as it is written and agreed to by the parties. In re AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex.2005). Nor does an arbitration agreement have to be contained in each of the contract documents it purports to cover. Id. Here, the acknowledgment expressly states Israel received a copy of the Program, received training on the Program, and understood such a Program was in use. By signing the acknowledgment, and by accepting employment, Israel agreed to the terms contained in the Program documents. See, e.g., id. (finding parties agreed to arbitrate disputes based on signed ■ enrollment forms, which did not contain arbitration clause but explicitly referenced and agreed to terms of the agreement that did contain arbitration clause); see also In re Halliburton, 80 S.W.3d at 568-69; In re Big 8 Food Stores, Ltd., 166 S.W.3d 869, 877 (Tex.App.-El Paso 2005, orig. proceeding) (finding party agreed to arbitration by signing employee benefit plan, evidence showed she attended a benefits meeting, attended training, and that the statements at the meeting were translated into Spanish).

Further, as evidence Israel was aware of the arbitration agreement and its application to his claim, relators furnished a copy of a demand for arbitration, dated February 15, 2005, filed by Israel, in which he listed the nature of the dispute as “[claimant was injured on the job. Employer stopped paying disability payments and cancelled medical services.” In the trial court, Israel argued the' demand did not concern his underlying claim, but in his brief, Israel describes his second injury as occurring “off the job”; presumably then, the February demand for arbitration was in reference to his August 2003 injury, the subject of the underlying suit. Regardless, the demand for arbitration refutes Israel’s contention that he was unaware of the arbitration agreement. See, e.g., In re Big 8 Food Stores, 166 S.W.3d at 877 (noting that evidence other than a signature can indicate assent to arbitrate). Israel acknowledges he also received benefits under the Program. We conclude relators established there is a valid arbitration agreement. We turn to the agreement’s scope.

2. Does the Arbitration Agreement Encompass Israel’s Claim?

The scope of the Program is very broad and applies to “any legal or equitable claim, demand or controversy, in tort, in contract, under statutory or common law doctrines ... or alleging violation of any legal obligation” that relates to or arises from the employment relationship. The Program expressly encompasses disputes arising from (1) the Program itself; (2) employment of an employee, including the terms, conditions, or termination of such employment; (3) benefits incident to employment; and (4) “any other matter related to the relationship between” Planet Ford and its employees, past or present. Israel does not deny that the Program’s scope is broad. He argues that his claim is one for workers’ compensation benefits and therefore, is expressly excluded under the Program.

When determining whether a claim falls within the scope of an arbitration clause, we focus on the factual allegations of the complaint, rather than the legal causes of action asserted. Dewey v. Wegner, 138 S.W.3d 591, 602 (Tex.App.Houston [14th Dist.] 2004, no pet.). In his first amended petition, Israel seeks damages against relators as a result of his fall on Planet Ford’s premises. The petition states that relators owed a duty to Israel to keep their premises in a safe condition, relators’ negligent disregard of that duty caused him to suffer damages, and they breached the standard of care to properly maintain the premises. These are allegations of negligence and, as a tort, fall within the plain language of the Program’s provisions.

Israel does not cite to any authority that establishes a negligence claim against a non-subscriber constitutes a claim for workers’ compensation benefits under the Workers’ Compensation Act. Israel acknowledges that Planet Ford is a nonsub-scriber under the Act and therefore, his remedy is governed by principles of common-law negligence. See Tex. Lab.Code Ann. § 406.033 (Vernon Supp.2005). Finally, Israel does not argue, and there is no indication in the Program, that the parties intended “workers’ compensation benefits” to mean benefits other than those provided for under the Workers’ Compensation Act. For these reasons, coupled with the presumption favoring arbitration, we reject Israel’s argument and conclude that his claim falls within the scope of the arbitration agreement.

Because relators established the existence of a valid arbitration agreement encompassing the dispute, the burden shifted to Israel to prove the agreement is unenforceable. Israel asserts his claim is not subject to arbitration because the McCar-ran-Ferguson Act reverse preempts application of the FAA. He does not contend that the arbitration agreement is unenforceable under principles of contract law.

3. Does the McCarran-Ferguson Act Preempt Application of the FAA Here?

To the extent a state statute is inconsistent with the FAA, the state statute is preempted. In re R & R Pers. Specialists of Tyler, Inc., 146 S.W.3d 699, 703 (Tex.App.-Tyler 2004, orig. proceeding). Israel does not argue that the FAA preempts any particular provisions of the Workers’ Compensation Act; rather, he contends that his claims are for benefits under the Act and that, even if the FAA preempts the Act, the McCarran-Fergu-son Act (“MFA”) reverse preempts the FAA.

In part, the MFA provides as follows:

No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance

15 U.S.C. § 1012(b). In short, under the MFA, state laws enacted for the purpose of regulating insurance prevail over general federal laws that do not specifically relate to the business of insurance. See id.; see also In re Kepka, 178 S.W.3d at 288-89. In determining whether the MFA applies to reverse preempt a federal statute, the following requirements must be met: 1) the federal statute at issue does not “specifically relate[ ] to the business of insurance”; 2) the state law was “enacted ... for the purpose of regulating the business of insurance”; and 3) application of the federal statute would “invalidate, impair, or supersede” the state insurance law. Lovilia Coal Co. v. Williams, 143 F.3d 317, 324 (7th Cir.1998) (citing U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 500-01, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993)); In re Kepka, 178 S.W.3d at 288. All three factors must be satisfied to preclude application of a federal statute. Lovilia, 143 F.3d at 324.

In support of his reverse preemption argument, Israel relies upon In re Kepka, a case in which, the relator sued a nursing home for negligence in caring for her deceased husband. When the nursing home moved to compel arbitration in accordance with an agreement signed by the relator, she argued the arbitration agreement failed to comply with Revised Civil Statute article 4590i, the health care liability law in effect. In re Kepka, 178 S.W.3d at 285-86. Under that statute, a health care provider could not require execution of an arbitration agreement unless the form of agreement was written in ten point boldface type, clearly and conspicuously informing the patient that he should consult with an attorney prior to signing the agreement because he was waiving his legal rights. Id. at 287-88. The nursing home argued the FAA preempted application of article 4590i, and relator argued the FAA was reverse preempted under the MFA. Id. Agreeing with relator, the appellate court held the MFA prevented the FAA from preempting the notice requirements under article 4590L Id. at 292. Kepka is distinguishable.

Under the circumstances in Kepka, the notice requirements contained in the state statute were not required in the FAA, and it was evident that application of the FAA interfered with the requirements of the state statute. Id. at 288; see also In re AdvancePCS Health, 172 S.W.3d at 606 n. 5 (stating FAA preempts state contractual requirements that apply only to arbitration clauses). This is not the case here.

Israel’s reverse preemption argument depends upon a state law that is preempted by the FAA. The FAA preempts a state law only when that state law is inconsistent with the FAA’s policy favoring arbitration. Even were we to hold that Israel’s claim is governed by the Workers’ Compensation Act, which we do not, he has not shown that any provision in the Act that might be applicable to his claim is inconsistent with the FAA. Thus, there is no state law preempted by the FAA and there can be no reverse preemption by the MFA.

In sum, relators established the existence of a valid arbitration agreement, encompassing Israel’s claim, and he has failed to show that the arbitration agreement is otherwise unenforceable. Therefore, the trial court abused its discretion in denying relators’ motion to compel arbitration. We conditionally grant relators’ petition for writ of mandamus. The writ will issue only if the trial court fails to comply with our holding.

      . See generally Tex. Lab.Code Ann. §§ 401.001-410.301 (Vernon 1996 & Supp.2005).

      . Whether the agreement involves interstate commerce is not at issue in this case.

      . See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2039-64, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex Civ. Prac. & Rem.Code Ann. §§ 74.001-.507 (Vernon Supp. 2004-2005)).


author: Justice MAZZANT.

text:
    BBQ BLUES TEXAS, LTD and CNW Enterprises, Inc., Appellants v. AFFILIATED BUSINESS BROKERS, INC. and Edward (Eddie) Calogero, Appellees.
    No. 05-05-00265-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 24, 2006.

      Robert S. Leithiser, Dallas, for Appellant.
    T. Rick Frazier, Law Office of T. Rick Frazier, Dallas, for Appellee.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

After a jury trial, judgment was entered against appellants, BBQ Blues Texas, LTD and CNW Enterprises, Inc., for breach of an oral contract with appellees, Affiliated Business Brokers and Edward (Eddie) Ca-lagero. Appellants were ordered to pay $33,500 in actual damages and $13,500 in attorney’s fees to appellees. For the following reasons, we affirm the judgment of the trial court.

Factual and Procedural Background

In a series of conversations, which began on October 11, 2002, appellants and appellees entered into an oral agreement. The parties agreed that, if appellees found a buyer for appellants’ business in Round Rock, Texas, appellants would pay them a commission equal to ten percent of the sales price. Appellees introduced appellants to a group that ultimately purchased the business in December 2002 for $335,000. As a part of the final purchase and sale agreement, the purchasers assumed appellants’ lease on the property where the restaurant was located. Appellants refused to pay appellees the ten percent commission and commenced a declaratory judgment action in Dallas County. Appellees filed counterclaims alleging alternative causes of action based on breach of contract, quantum meruit, promissory estoppel and for attorney’s fees. Appellants did not contest the fact that there had been an oral commission agreement but rather filed answers and counterclaims alleging that appellees’ claims were barred by the statute of frauds provision of the Occupations Code. Tex. Occ.Code. Ann. § 1101.806(c) (Vernon 2004). Appellants filed a motion for summary judgment based on their statute of frauds defense which was denied by the trial court. The case was tried before a jury which rendered a verdict for appellees.

Oral Commission Agreement

In issues one through five, appellants contest the factual and legal sufficiency of the evidence to support the find-mg that the oral commission agreement did not involve the sale or purchase of real estate. Specifically, they assert that the oral commission agreement between the parties included the sale or purchase of real estate and therefore violated Section 1101.806(c) of the Occupations Code which states:

A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.

Tex. Rev. Occ. Code Ann. § 1101.806(c) (Vernon 2004); see also Stroble v. Tearl, 148 Tex. 146, 221 S.W.2d 556 (1949).

Appellees argue the evidence presented at trial established that the oral commission agreement did not contemplate the transfer of real estate. They assert that appellants and the purchaser of the restaurant worked out a transfer of the lease agreement between themselves and they had no control over the ultimate structure of that transaction. They contend the oral commission agreement was a finder’s fee for bringing a willing buyer together with a willing seller. Appellees additionally observe that the business could have been sold without the transfer of the lease. Finally, they point out that this issue was clearly presented to the jury in Question 2, “Did a part of the agreement you have found include the transfer of the real estate lease for the restaurant in Round Rock, Texas?” To which the jury answered “No.”

The burden was on appellee to secure a finding that no real estate was included in the oral agreement. See Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584, 589 (1960). When, as in this case, the appellants are challenging the legal sufficiency of the evidence to support a finding on which they did not have the burden of proof at trial, the appellants must demonstrate on appeal that no evidence exists to support the adverse finding. See Coleman v. Coleman, 170 S.W.3d 231, 240 (Tex.App.-Dallas 2005, pet. filed); Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet. denied); Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). When reviewing the record, we look to see whether any evidence supports the challenged finding. King, 43 S.W.3d at 19. If more than a scintilla of evidence exists to support the finding, the legal sufficiency challenge fails. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); see generally City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005).

When appellants challenge the factual sufficiency of a jury finding, we must consider all the evidence. See Coleman, 170 S.W.3d at 240; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Findings may be overturned only if the evidence is so weak or the findings are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. However, we will not substitute our judgment for that of the jury. Lewis v. Anderson, 173 S.W.3d 556, 563 (Tex.App.Dallas 2005, pet. filed); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

There were two separate and distinct contracts in this case: (1) the oral commission agreement between appellants and ap-pellees which called for a ten percent commission to be paid to appellees if they found a buyer for the restaurant, and; (2) the sales contract between the buyer and the seller of the restaurant. Regardless of the terms of the final contract between the buyer and seller of the restaurant, the jury found that appellants breached the oral commission agreement and that the oral commission agreement did not involve the transfer of the real estate lease in Round Rock, Texas. There is more than a scintilla of evidence to support this finding. Further, after reviewing all of the evidence, we do not find the evidence in support of the findings so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. The evidence at trial was both factually and legally sufficient to support the finding that the oral commission agreement did not involve the sale or purchase of real estate. Accordingly, we find against appellants on their first five issues.

In issues six and seven, appellants assert that there is no evidence to support the alternative damages awarded by the jury for quantum meruit and for promissory estoppel. Since we affirm the trial court’s judgment that appellants breached the oral commission agreement and appellants have been ordered by the trial court to pay actual damages of $33,500, we do not need to address appellants’ issues regarding the alternative damages based on quantum meruit and promissory estoppel.

The judgment of the trial court is affirmed.

      . Appellants challenge this jury question citing C & R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). Pursuant to rule 274, “a parly objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question ... is waived unless specifically included in the objections.” Tex.R. Civ. P. 274. In this case, appellant failed to timely object to the question, so any objection was waived. Jury questions submitted without objection cannot serve as a basis for complaint on appeal. See Green Intern., Inc. v. Solis, 951 S.W.2d 384, 389-390 (Tex.1997).


author: Justice LANG.

text:
    Mona NAGUIB, Appellant v. Latif NAGUIB, Appellee.
    No. 05-05-00496-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 24, 2006.

      Judith A. Grantham, Carrollton, for Appellant.
    John J. Pfister, Pfister & Associates, Frisco, for Appellee.
    Before Justices O’NEILL, FITZGERALD, and LANG.
   OPINION

Opinion by

Justice LANG.

The parties were divorced on February 6, 2003. On August 6, 2004, appellee filed a petition to modify the parent child relationship. A jury trial was held and a final judgment modifying the conservatorship of the child was entered on January 7, 2005. Additionally, the trial court assessed attorney’s fees of $7,500 against appellant and ordered that the attorney’s fees were “for legal services rendered in relation to the child and in the nature of child support.” On appeal, the appellant asserts that the trial court erred when it ordered the assessment of attorney’s fees “in the nature of child support.” For the following reasons, we modify the trial court’s order to delete all characterizations of the attorney’s fees as “in the nature of child support” and, as modified, affirm the order.

I. Standard of Review

Appellant does not challenge the order assessing against her attorney’s fees and costs, nor the amount at which they were assessed. However, she challenges the trial court's characterization of these fees and costs as being “in the nature of child support.” She contends that Texas law prohibits assessing attorney’s fees and costs as “child support” in a suit to modify the parent-child relationship. Awarding attorney’s fees in the nature of child support is a legal conclusion. Accordingly, we review the trial court’s order de novo. See Finley v. May, 154 S.W.3d 196, 197-199 (Tex.App.-Austin 2004, no pet.); In re Moers, 104 S.W.3d 609, 611 (Tex.App.Houston [1st Dist.] 2003, no pet.).

II. Applicable Law

The legislature specifically distinguished between the assessment of fees and costs in child support enforcement actions as opposed to assessment of attorney’s fees and costs in modification suits because of the potentially serious consequences that stem from an award of attorney’s fees as child support. See Tex. Fam.Code Ann. §§ 106.002,157.167 (Vernon 2006); Finley, 154 S.W.3d at 197. In a suit affecting the parent-child relationship, the trial court has the discretion to “render judgment for reasonable attorney’s fees and expenses” and such fees may be enforced “by any means available for the enforcement of a judgment for debt.” Tex. Fam.Code Ann. § 106.002. Texas law prohibits imprisoning a person for debt. Tex. Const, art. I § 18. Attorney’s fees awarded in a suit involving child support enforcement are not viewed as debt and may be enforced by contempt. Tex. Fam.Code Ann. § 157.167; see also Finley, 154 S.W.3d at 199; Moers, 104 S.W.3d at 611. Additionally, attorney’s fees awarded in a suit seeking enforcement of child support may be collected by withholding earnings of the party against whom the award is assessed. Tex. Fam.Code Ann. § 158.0051 (Vernon 2006).

III. Analysis and Conclusion

Appellee asserts that attorney’s fees awarded in a suit affecting the parent-child relationship may be denominated as necessaries to the children. See In the Interest of A.J.L. and E.M.L., 108 S.W.3d 414, 421-22 (Tex.App.-Fort Worth 2003, pet. denied); London, 94 S.W.3d at 146. This proposition is premised on the concept that a parent has an obligation to support her minor children. A.J.L., 108 S.W.3d at 422. However, the A.L.J. and London cases are distinguishable from the issue and facts before us. Those cases focus solely upon the recovery of attorney’s fees as “necessaries to the child.” They do not address the precise issue before us which is the characterization of, and enforcement of, attorney’s fees as child support.

In the case before us, the appellee sought to modify the conservatorship of the child and the attorney’s fees awarded the appellee were incurred only in pursuing the suit to modify the parent-child relationship. The record does not reflect any claims for enforcement of delinquent child-support obligations. Tex. Fam.Code Ann. §§ 106.002, 157.167; Finley, 154 S.W.3d at 197. Consequently, there is no basis in the facts or the law to characterize the award of attorney’s fees as “in the nature of child support.” We decide in appellant’s favor on his issue. Accordingly, we modify the order regarding attorney’s fees in the amount of $7,500 to assess them only as a judgment debt, not as child support.

The trial court’s order is affirmed as modified.

      . Texas appellate courts disagree about the appropriate standard of review when attorney’s fees are awarded as child support in non-enforcement cases. The Fourteenth Court of Appeals has stated that it reviews the award of attorney’s fees in the nature of child support for an abuse of discretion. Hardin v. Hardin, 161 S.W.3d 14, 18-19 (Tex.App.Houston [14th Dist.] 2004, pet. granted, judgm’t vacated w.r.m.); London v. London, 94 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2002, no pet.).


text:
    Randy T. McCOY, Appellant v. TEXAS INSTRUMENTS, INC., David Cotton, Ken Melvin, and David Solomon, Appellees.
    No. 05-05-00388-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 2, 2006.

      Randy T. McCoy, Sachse, TX, for appellant.
    Eric J. Mayer, Susman Godfrey LLP, Houston, TX, for appellees.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Appellant Randy T. McCoy filed suit against appellees Texas Instruments, Inc. (“TI”), David Cotton, Ken Melvin, and David Solomon for race discrimination, retaliation, and slander after his layoff in a company-wide reduction in force. Appel-lees were granted summary judgment. Tex.R. Civ. P. 166a(c), (i). McCoy appeals asserting: (1) he received ineffective assistance of counsel and (2) the trial court erred in granting summary judgment on his racial discrimination and retaliation claims. For the following reasons, we affirm the trial court’s judgment.

Factual and Procedural Background

On April 25, 2001, McCoy, a senior test engineer at TI’s Semiconductor Group, Wireless Catalog Products Branch, was laid off. He met with Cotton, his immediate supervisor, who informed him that the reason for his separation was a company-wide reduction in force resulting from the downturn in the semiconductor industry. McCoy was informed that a ranking was done by management at TI to determine who would be included in the reduction in force. The ranking was based on job performance, job skills/flexibility, and length of service. McCoy received lower skills/flexibility ranking because of his inflexibility to travel to Japan for the product he was working on and because he had only exhibited proficiency in running voice CODEC.

The Wireless Catalog Products Branch was closed and existing customers were handled by other TI business units. McCoy received a 60-day paid leave of absence and interviewed for other jobs at TI. Before his paid leave had ended, he was rehired by the High Volume Analog business at TI. He did not lose any pay or benefits and his base earnings increased with the job change.

In October 2001, McCoy raised charges of race discrimination and retaliation in a complaint to the Equal Employment Opportunity Commission. In April 2002, he filed suit alleging racial discrimination, retaliation, and slander. Besides Cotton, who was the Branch Manager Wireless Catalog Products, Semiconductor Group, McCoy also named two other TI employees in his original petition, Melvin, the Director of the MS Wireless Semiconductor Group, and Solomon, the Human Resources Manager.

TI submitted the affidavits of Cotton, Melvin, and Solomon, as well as the deposition testimony of McCoy, to establish that the layoff was based on a need to reduce its costs based on business conditions at the time. The evidence established that, consistent with TI policy, management ranked the employees taking into account job performance, skills, and length of service. The ranking was supervised by Human Resources.

McCoy is black. He alleged that he was laid off after complaining to Cotton that a 6-inch by 4-inch Confederate flag in Cotton’s office was offensive. Cotton is British, and a British flag in his office was replaced with a Confederate flag as a practical joke by his coworkers. Cotton told McCoy he did not know the Confederate flag was offensive, and he threw it away.

McCoy admits that he has no evidence that race or retaliation were factors considered in the reduction in force. Additionally, he cannot think of any inappropriate comments made to him by Solomon, Melvin, or Cotton. He claims that, based on his subjective belief, a disproportionate share of those laid off were black, and as such, the reduction in force was discriminatory.

The only summary judgment evidence presented by McCoy was his own affidavit and deposition testimony. He does not present any facts to refute that the reduction in force was due to business conditions. He asserts that he was the top engineer in his Branch and that he had been nominated for an award at TI based on his high technical qualifications and his contribution to the revenue and profits at TI. He also claims that, although he was successful at being rehired by TI, he was “humiliated” by being forced to interview for a new position.

Appellees’ motion for summary judgment pursuant to Rules 166(a)(c) and (i) was granted. Tex.R. Civ. P. 166a(c), (i). The district court did not specify the grounds relied upon in granting summary judgment.

Ineffective Assistance of Counsel

Appellant is representing himself in this appeal. He asserts that he received ineffective assistance of counsel in the trial court. The doctrine of ineffective assistance of counsel does not extend to civil cases. See Green v. Kaposta, 152 S.W.3d 839, 844 (Tex.App.-Dallas 2005, no pet.); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Accordingly, we decide against appellant on his first issue.

Summary Judgment

In his second and third issues, appellant argues the trial court erred in granting summary judgment on his racial discrimination and retaliation claims. We disagree.

Standard of Review

In their motion for summary judgment, appellees raised both traditional and no-evidence points. The standards for reviewing both types of summary judgment are well established. See Tex.R. Civ. P. 166a(c), 166a(i); Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 191-92 (Tex.App.-Dallas 2005, pet. denied). Under a traditional motion for summary judgment, the moving party carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). After the movant produces evidence entitling it to summary judgment, the burden then shifts to the nonmovant to present evidence of any issues that would preclude summary judgment or create a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied). Any doubts about the existence of a genuine issue of material fact are resolved against the movant, and all evidence and any reasonable inferences must be viewed in the light most favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). In determining whether the non-movant has met its burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in its favor. Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.Dallas 2002, no pet.); Gen. Mills Rest, 12 S.W.3d at 833. When the trial court does not specify the basis for its ruling, it is appellant’s burden on appeal to show that each of the independent grounds asserted in support of summary judgment is insufficient to support summary judgment. See Smith, 3 S.W.3d at 83.

A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 368 (Tex.App.-Dallas 2004, no pet.). Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Benners, 133 S.W.3d at 368. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id.

Employment Discrimination and Retaliation Claims

Appellant asserts that the trial court erred in granting summary judgment on his employment discrimination and retaliation claims. The legislature enacted the Texas Commission on Human Rights Act (“TCHRA”) to correlate state law with federal law in the area of employment discrimination. See Tex. Lab.Code Ann. § 21.051 (Vernon 1996); Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). One purpose of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Tex. Lab.Code Ann. § 21.001(1); NME Hosp., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999). The TCHRA prohibits an employer from discriminating against an individual with respect to compensation, or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, and national origin. Tex. Lab. Code Ann. § 21.051; Williams v. Vought, 68 S.W.3d 102, 107 (Tex.App.-Dallas 2001, no pet.). The TCHRA also makes it an unlawful employment practice for an employer to retaliate against an employee who opposes a discriminatory practice or makes or files a complaint. Tex. Lab.Code Ann. § 21.055.

In a circumstantial evidence race discrimination case, such as the one before us, the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden shifting test applies. Under this test, the plaintiff must first establish a prima facie case of discrimination. To meet this burden, a plaintiff must show: (1) he was a member of a protected class, (2) he suffered an adverse employment action, and (3) non-protected employees were not treated similarly. Id. at 792-93, 93 S.Ct. 1817; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Subjective beliefs alone are insufficient to establish a prima facie case. Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate legitimate, non-diseriminatory reasons for any alleged unequal treatment. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. 1817; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex.2001). The offer of a legitimate reason eliminates the presumption of discrimination created by the plaintiffs prima facie case. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden then shifts back to the plaintiff to show the employer’s stated reason was a pretext for discrimination. Quantum Chem., 47 S.W.3d at 477. A plaintiff can raise a fact issue as to pretext if the evidence, taken as a whole, shows the employer’s stated reason was not what actually motivated the employer and creates a reasonable inference that race was a determinative factor in the complained-of actions. Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 138, 140 (Tex.App.-Fort Worth 2000, pet. denied). The plaintiff retains the burden of persuasion to prove by a preponderance of the evidence he was discriminated against because of his race. See Burdine, 450 U.S. at 254, 101 S.Ct. 1089.

The elements of a retaliation claim are: (1) the employee engaged in a protected activity, (2) the employer took adverse employment action against the employee, and (3) the employer took the adverse action based on the employee’s engagement in the protected activity. Jones v. Jefferson County, 15 S.W.3d 206, 210 (Tex.App.-Texarkana 2000, pet. denied); Cox & Smith Inc. v. Cook, 974 S.W.2d 217, 223 (Tex.App.-San Antonio 1998, pet. denied); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 739 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The same burden-shifting analysis used in discrimination claims is also used in a retaliation claim. Jones, 15 S.W.3d at 210. Once the plaintiff has established a prima facie case, the defendant employer must articulate a non-discriminatory reason for the adverse employment action. Gold v. Exxon Corp., 960 S.W.2d 378, 381 (Tex.App.-Houston [14th Dist.] 1998, no writ). McCoy alleges that his layoff was in retaliation for his complaint to Cotton about the Confederate flag.

McCoy established that he is a member of a protected class and suffered an adverse employment action, but in order to establish his prima facie discrimination claim, he needed to establish that non-protected employees were not treated similarly. He established that he complained about the Confederate flag and that he was subjected to the layoff, but to establish the prima facie case of retaliation, he needed to show a causal connection between the complaint and the subsequent layoff. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir.2001); Benners, 133 S.W.3d at 369. McCoy admitted in his Response to the Motion for Summary Judgment that he had no direct evidence of discrimination or retaliation. The only evidence he presented was his own affidavit and deposition testimony outlining his subjective belief of racial discrimination and retaliation. An employee’s subjective belief of discrimination or retaliation, no matter how genuine, cannot serve as the basis for judicial relief. See Cox v. NextiraOne, 169 S.W.3d 778, 782 (Tex.App.-Dallas 2005, no pet.); Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 576 (Tex.App.Houston [14th Dist.] 2004, no pet.); Gold, 960 S.W.2d at 384; Farrington, 865 S.W.2d at 251-52; see also Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.1996).

As further evidence of TI’s discriminatory and retaliatory intent, McCoy asserted that he was better qualified than several employees that were not laid off. Merely disputing TI’s assessment of his qualifications will not create an issue of fact. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.2002). Federal and state laws protecting employees against discrimination and retaliation were not intended to be vehicles for judicial second-guessing of employment decisions nor intended to transform courts into personnel managers. See Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 332 (Tex.App.-Austin 1999, no pet.). Absent a discriminatory motive, a disagreement between an employer and employee over assessment of job performance is not actionable. Evans, 246 F.3d at 355. Even an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, non-discriminatory reason for a termination. Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991). McCoy failed to establish that non-protected employees were not treated similarly, thus failing to establish a prima facie case of discrimination. McCoy also failed to show any connection between the complaint regarding the Confederate flag and his subsequent layoff, thus failing to establish a prima facie case of retaliation.

Even if McCoy had been able to make a prima facie case of discrimination or retaliation, under the burden shifting analysis of McDonnell Douglas, TI then had the burden of offering a legitimate, non-discriminatory reason for terminating McCoy. TI met that burden by producing evidence that McCoy was terminated as part of a company-wide reduction in force precipitated by a downturn in the semiconductor industry. A reduction in force is a legitimate, non-discriminatory reason for terminating an employee. Cox, 169 S.W.3d at 781. TI’s evidence established as a matter of law that there was a legitimate, nondiscriminatory and non-retaliatory reason for McCoy’s lay off. See Willrich, 28 S.W.3d at 25.

The burden would then have shifted back to McCoy to produce evidence that the reason given by TI to terminate McCoy was pretextual. Willrich, 28 S.W.3d at 25; Jaso, 6 S.W.3d at 329; see also Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.2001). To avoid summary judgment, McCoy had to provide more than a scintilla of evidence that the true reason TI fired him was racial discrimination or retaliation. Cox, 169 S.W.3d at 782. Reviewing the evidence in the light most favorable to McCoy, he did not produce a scintilla of evidence that the company-wide reduction in force in response to the downturn in the semiconductor industry was a pretextual reason for his termination.

The trial court properly granted summary judgment. McCoy failed to establish a prima facie case of discrimination or retaliation. Additionally, there was no evidence that TI’s stated reason for McCoy’s layoff was a pretext for discrimination or retaliation. We decide against McCoy on his second and third issues.

We affirm the judgment of the trial court.

      . A CODEC (COmpressor/DECompressor) is an algorithm for taking voice or video and compressing the information. CODECs are used within voice and video systems, including DVD players. CODEC is also a contraction of COder and DECoder. A codec is a device or program capable of performing transformations on a data stream or signal. The word describes the two basic functions of digital communication. An (A)nalog signal is coded (converted) into a (D)igital equivalent in the A to D converter. At the other end of the digital circuit, it is decoded from the (D)igital equivalent, through the D to A converter, back into an (A)nalog signal. See Crystal Semiconductor Corp. v. TriTech Microelectronics Int'l, Inc., 246 F.3d 1336, 1344 (Fed.Cir.2001); AT & T v. Microsoft Corp., 414 F.3d 1366, n. 1 (Fed.Cir.2005).

      . McCoy does not raise the slander claim on appeal so it will not be discussed. When an appellant does not properly challenge each of the independent grounds asserted for summary judgment as to a particular claim, we affirm the summary judgment as to that claim. See Smith v. Tilton, 3 S.W.3d 77, 83 (Tex.App.-Dallas 1999, no writ).

      . Appellants Melvin, Cotton, and Solomon in their individual capacities are not liable for damages for unlawful employment practices. See City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex.App.-Austin 1992, no writ).