author: HOLLIS HORTON, Justice.

text:
    SILSBEE HOSPITAL, INC. d/b/a Columbia Silsbee Doctors Hospital, Appellant, v. Lonny GEORGE, Appellee.
    No. 09-04-368-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Feb. 24, 2005.
    Decided April 28, 2005.

      Travis R. Brewer, Law Office of Travis R. Brewer, Austin, Darrin M. Walker, Law Office of Darrin Walker, Kingwood, for appellant.
    Curtis W. Leister, John Werner, Reaud, Morgan & Quinn, LLP, Beaumont, for ap-pellee.

      Before GAULTNEY, KREGE-R and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

In this case, an employee of a nonsub-scriber to workers’ compensation insurance voluntarily elected to participate in an employee benefit plan that provided specified benefits in lieu of a common law remedy. The employer, Silsbee Hospital, Inc. d/b/a Columbia Silsbee Doctors Hospital, contends that under the employee benefit plan the employee, Lonny George, waived his common law rights to sue for personal injuries. The Hospital raises additional errors regarding: (1) the trial court’s refusal to grant it additional strikes for certain veniremembers it challenged for cause, (2) the trial court’s evidentiary rulings to exclude evidence arguably relevant to its affirmative defenses of waiver, release and estoppel, (3) the trial court’s broad form damage submission and refusal to submit a damage charge with segregated elements of damage, (4) the jury’s arguably excessive damage award, and, (5) the refusal of the trial court to allow it to amend its pleadings to assert the affirmative defense of ratification.

While descending a ladder on February 29, 1996, George was injured when the ladder slipped and he fell. He received multiple fractures of the bones in his foot and, subsequently, had three surgeries as a result of his injuries. A jury awarded George $1,000,000 in his suit against the Hospital. The award consisted of $100,000 for past damages and $900,000 for future damages.

Applying the rules of contract construction, as further discussed below, we hold that the waiver George signed does not expressly apply to relieve the Hospital of its potential liability at common law. We find the trial court erred in failing to grant additional strikes in jury selection. We also find this error was harmful and requires us to reverse and remand.

The Waiver Agreement

Prior to his injury, George elected to participate in an employee benefit plan and, in doing so, waived certain rights to bring negligence suits for on-the-job injuries. On February 14, 1996, George signed a document titled “ELECTION TO PARTICIPATE IN THE EMPLOYEE HEALTH AND SAFETY PROGRAM BENEFIT PLAN OF COLUMBIA/HCA HEALTHCARE CORPORATION.” The document (hereafter referred to as the “waiver agreement”) states, in all capital letters, “EXECUTION OF THIS DOCUMENT INVOLVES THE WAIVER AND RELEASE OF VALUABLE LEGAL RIGHTS.” The waiver agreement further provides:

By execution of this document, I hereby voluntarily elect to participate in the Employee Health and Safety Program Benefit Plan of Columbia/HCA Healthcare Corporation (the “Plan”). AS REQUIRED BY THE TERMS OF THE PLAN, I, THE UNDERSIGNED, HEREBY FREELY, IRREVOCABLY AND UNCONDITIONALLY RELEASE,. WAIVE AND AGREE NOT TO SUE UPON, ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST COLUMBIA/HCA HEALTHCARE CORPORATION, ITS SUBSIDIARIES, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND EMPLOYEES, THAT ARISE OUT OF OR ARE RELATED TO INJURIES OR DEATH SUSTAINED BY ME IN THE COURSE AND SCOPE OF MY EMPLOYMENT BY COLUMBIA/HCA HEALTHCARE CORPORATION AND ARE CAUSED BY THE SOLE NEGLIGENCE OF COLUMBIA/HCA HEALTHCARE CORPORATION OR THE NEGLIGENCE OF COLUMBIA/HCA HEALTHCARE CORPORATION CONCURRENT WITH THE NEGLIGENCE OF ANY OTHER PERSON OR ENTITY....

The Hospital maintains that by participating in the plan and accepting benefits , George waived his right to sue the Hospital. George contends that his injury was sustained in the course and scope of his employment with the Hospital, and not in the course and scope of his employment with Columbia/HCA Healthcare Corporation, the parent corporation of the Hospital. George further contends that under the express terms of the plan he waived only his rights to sue the parent, but retained his rights to sue the Hospital, a subsidiary of Columbia/HCA.

In its first issue, the Hospital asks this Court to reverse the trial court and render judgment in the Hospital’s favor. Alternatively, the Hospital seeks reversal and remand. To support its rendition argument based on waiver, the Hospital relies on Lawrence v. CDB Services, Inc., 44 S.W.3d 544, 551-53 (Tex.2001), and Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 191(Tex.2004). In Lawrence, the Texas Supreme Court determined that agreements by workers to limit their employers’ liability in exchange for non-subscriber benefit plans were not prohibited by law. Lawrence, 44 S.W.3d at 551-53(superseded by Tex. Lab.Code Ann. § 406.033(e) (Vernon Supp.2005)) (“Any agreement by an employee to waive a cause of action or any right described in Subsection (a) before the employee’s injury or death is void and unenforceable.”). Although superseded by statute, Lawrence remains the law for the claims asserted by George, who both signed the waiver agreement and sustained his injury before September 1, 2001. See Reyes, 134 S.W.3d at 192.

The Texas Supreme Court further determined that employers who enroll employees in non-subscriber benefit plans as allowed by Lawrence must satisfy both components of the fair notice requirements, namely, the express negligence doctrine and conspicuousness. Id. at 191. When the fair notice requirements apply, a contract must satisfy both requirements to avoid being unenforceable as a matter of law. Id. at 192 (citing Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509-10 (Tex.1993), and U.S. Rentals, Inc. v. Mundy Serv. Corp., 901 S.W.2d 789, 792 (Tex.App.-Houston [14th Dist.] 1995, writ deniéd)). The express negligence doctrine requires that the parties’ intent to release an employer from liability for its own future negligence “must be expressed in unambiguous terms within the four corners of the release.” Lawrence, 44 S.W.3d at 553.

Relying on Victoria Bank, George maintains the document addresses only his right to pursue claims arising from injuries he received while working as an employee of Columbia/HCA, the parent, and not while working as an employee of the Hospital. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.1991) (to effectively release a claim the releasing document must “mention” the claim). The pertinent language in the agreement here provides that George released and waived all claims and causes of action, including future ones, that he “may have against Columbia/HCA Healthcare Corporation [or] its subsidiaries, .... ” “that arise out of or are related to injuries or death sustained by [George] in the course and scope of [his] employment by Columbia/HCA Healthcare Corporation and are caused by the sole negligence of Columbia/HCA Healthcare Corporation or the negligence of Columbia/HCA Healthcare Corporation concurrent with the negligence of any other person or entity.” (Emphasis added) While the Hospital concedes that the release and waiver is written in terms of George’s being an employee of Columbia/HCA rather than the Hospital, it argues that the summary plan description and surrounding circumstances make clear the intent that the Hospital is included in the term “employer.”

In our review of the waiver agreement, we utilize the rules of contract construction applicable to indemnity agreements and releases. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 284 (Tex.1998); see also Fisk Elec. Co. v. Constructors & Associates, Inc., 888 S.W.2d 813, 814 (Tex.1994). Under Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705 (Tex.1987), the Texas Supreme Court held the express negligence doctrine, a rule of contract construction, requires that “the intent of the parties must be specifically stated within the four corners of the contract.” Id. at 708; see also Fisk, 888 S.W.2d at 814-15. The purpose of the express negligence rule is “to require scriveners to make it clear when the intent of the parties is to exculpate an indemnitee for the indemnitee’s own negligence.” Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex.1989). “Either the indemnity agreement is clear and enforceable or it is not.” Fisk, 888 S.W.2d at 815.

In addition to the express negligence rule, we also consider other rules of contract construction in construing non-subscriber agreements. See Associated Indem. Corp., 964 S.W.2d at 284; see also Fisk, 888 S.W.2d at 814. “Deciding whether a contract is ambiguous is a question of law for the court.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). A contract is unambiguous if it can be given a definite or certain legal meaning. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999).

The agreement George signed is not ambiguous as it can be given a definite legal meaning. The clear and unambiguous language found within the fur corners of the document here addresses only injuries arising out of George’s employment by Columbia/HCA Healthcare Corporation. It is not disputed that George’s injuries arose out of his employment by the Hospital, which, although a subsidiary of Columbia/HCA, is a distinct legal entity under Texas law. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798 (Tex.2002); Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336, 339-41 (Tex.1968).

The Hospital argues that the agreement it drafted, if interpreted as limited to claims arising out of the employment by Columbia/HCA, would be absurd. However, we note that an employee under Texas law may move into, and out of, his employer/employee relationship with one entity and into an employer/employee relationship with another entity depending upon which entity controls the details of his work at the time of the injury. See Producers Chem. Co. v. McKay, 366 S.W.2d 220, 225-26 (Tex.1963)(whether general employees of one employer become borrowed employees of another is often a difficult question). Additionally, a landlord may have potential liability for accidents that occur on premises over which it has some control. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993) (control over security and safety on leased premises may be fact issue regarding potential liability to tenant’s employee injured on leased premises). This is not to say that there was a fact issue here on whether the Hospital or Columbia/HCA controlled George’s work, or that Columbia/HCA leased the premises where George suffered his injury, but just to observe that Columbia/HCA, as the parent corporation, might have had its reasons to want a waiver from employees such as George. Thus, we conclude that Columbia/HCA could have an interest, separate and apart from the interest of the Hospital, making a waiver of common law claims against it desirable.

We further note that in the Bill of Exceptions the Hospital presented affidavits of the Risk Manager for Silsbee Hospital, Inc., Alice O’Quin, and the Vice President — Legal & Corporate Secretary for Columbia/HCA Healthcare Corporation, John Franck II. However, there was no testimony from either of them explaining the reason the waiver agreement limited the waiver to injuries arising from employment by Columbia/HCA. We also note there was no testimony from any witness at trial, or testimony offered and excluded by the trial court, explaining why the waiver agreement limited the injuries released to those arising out of employment by Columbia/HCA, and did not expressly extend to include injuries arising out of employment by its subsidiaries. There was no explanation by any of the witnesses establishing who owned the premises where George’s accident occurred, who owned the ladder involved in George’s accident, or the degree to which Columbia/HCA controlled safety procedures in place on the premises.

The Hospital did introduce a document titled Columbia/HCA “Employee Guide to Health and Safety” containing a section on safety with ladders, indicating there may have been some direction by the parent over the subsidiary regarding ladder safety. Kenny Gibson, the Hospital’s maintenance supervisor, testified that management communicated to employees the safety concepts in the Columbia/HCA safety guide prior to the Hospital’s promulgating its own safety rules. In summary, based on the record in this case we cannot imply that there would be no purpose in Columbia/HCA’s desire to benefit from a waiver.

Therefore, under the facts of this case, and applying the express negligence rule as well as other rules of contract construction to the waiver agreement, we decline to imply that the drafters of the waiver agreement intended to include the Hospital as a party against whom George waived his common law remedies where the waiver agreement does not expressly so provide. Therefore, we decline the Hospital’s request that we reverse the trial court’s judgment and render judgment in favor of the Hospital. Issue one is overruled.

Ratification, Release, Waiver and Estoppel

Issues two, three, and seven concern the Hospital’s affirmative defenses. - In issues two and three, the Hospital complains that the trial court erred in denying its request to admit evidence it contends raises a fact issue regarding its affirmative defenses, namely, waiver, release, and estoppel. In issue seven, the Hospital complains that the trial court erred in refusing the Hospital’s requested trial amendment to assert ratification as an affirmative defense.

With respect to estoppel, the Hospital argues George’s acceptance of payments, totaling $78,167.24, requires the en-foreement of an agreement (albeit not the one expressly agreed to in the written contract) that George would not sue the Hospital at common law. The Hospital contends that by accepting voluntary payments for medical expenses and lost wages, George ratified the waiver agreement. At the outset, we note that George signed the waiver agreement and never disputed that he was bound by the written terms' of the agreement.

Under Texas law, a tortfeasor may voluntarily pay the person it injures, and the payment cannot then be asserted as an admission that the tortfeasor was negligent. See Tex.R. Evid. 409. Therefore, the payments to George for medical and lost wages, and George’s acceptance of them, do not raise evidence sufficient to prohibit George from enforcing the terms of the written agreement. The only case the Hospital cites, Miller v. Kennedy & Minskew, Prof'l Corp., 142 S.W.3d 325 (Tex.App.-Fort Worth 2003, pet. denied), is not on point. Instead, Miller deals with whether a lawyer’s client, who refused to pay attorney’s fees under a retainer fee agreement, ratified his attorney’s engaging in unauthorized acts when, with full knowledge of his attorney’s unauthorized acts, the client subsequently accepted the benefits of the attorney’s services under the fee agreement. See Miller, 142 S.W.3d at 330. Other than citing the case for the general proposition that acceptance of benefits under a contract can, in some circumstances, prohibit a party from disavowing a contract, nowhere does the Hospital explain how Miller would apply under the facts and circumstances in this case. No other cases on estoppel are cited.

The Hospital also asserts that George ratified the understanding that the Hospital was released. However, the Hospital did not plead its affirmative defense of ratification as required under Rule 94 of the Texas Rules of Civil Procedure. Thus, the Hospital waived its ratification defense. See Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex.1980).

In issue seven, the Hospital asserts the trial court erred in not granting leave for the Hospital to amend its pleadings to assert the ratification defense. A trial court’s order granting or denying a request for a trial amendment is reviewed under an abuse of discretion standard. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994). Under Texas Rule of Civil Procedure 66, a trial court is required to freely grant the request unless “(1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face.” Id. at 658. When the record shows a lack of diligence in bringing the reshaped cause before the court and. when the matter pleaded appears to have been known by the party seeking to amend and is not based on any newly discovered facts, the court does not abuse its discretion in refusing to allow the amendment. See Trailways, Inc. v. Clark, 794 S.W.2d 479, 492(Tex.App.-Corpus Christi 1990, writ denied).

The Hospital indicates that it argued ratification as a defense in support of its Motion for Summary Judgment when it filed its Supplemental Argument and Authority in Support of Its Motion for Summary Judgment on July 16, 2001. The jury trial in this case did not occur until 2004. It is clear from the record that the Hospital was aware of its contention that George’s conduct allegedly resulted in a ratification to waive his claims against the Hospital long before the trial.

When the trial court denies leave to file an amended pleading injecting a new substantive defense, the burden shifts to the party who offered the amended pleading to clearly demonstrate on appeal that the trial court abused its discretion. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980). The Hospital contends that its ratification defense was tried by consent, but fails to include any record references showing when such evidence was presented to the jury. Thus, the Hospital failed to clearly demonstrate the trial court abused its discretion in failing to grant the requested trial amendment to assert ratification when the terms agreed to in writing were in fact enforced at trial.

With respect to its waiver and release defenses, the Hospital asserts that George had actual knowledge that by executing the waiver he was waiving negligence claims against the Hospital, and argues that George’s actual knowledge makes the waiver effective to protect the Hospital. For this proposition, the Hospital relies on Reyes, which states that “if both contracting parties have actual knowledge of the plan’s terms, an agreement can be enforced even if the fair notice requirements were not satisfied.” Reyes, 134 S.W.3d at 192.

As discussed above the Hospital’s Bill of Exceptions offered no testimony regarding the Hospital’s understanding of the plan’s terms; instead it offered only George’s testimony about his understanding. The affidavits of Mr. Franck II, and Ms. O’Quin, offered by the Hospital, contain no evidence regarding the Hospital’s understanding of how the waiver applied when the injury arose in the course and scope of an injury to a Hospital employee.

We have held that the contract was not ambiguous, and is therefore construed under the “foui' corners” rule. Although the Hospital attempted to offer George’s understanding of the waiver agreement into evidence, and this evidence was excluded, we note that George’s testimony of his understanding of the waiver agreement would have injected testimony inconsistent with the express terms of the written agreement in violation of the parol evidence rule, which is a rule of substantive law.

When the parties have made an unambiguous written agreement with respect to a particular subject matter, the parol evidence rule prohibits the presentation of extrinsic evidence to vary or contradict the terms of a written instrument. See Friendswood Development Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex.1996); Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958); Muhm v. Davis, 580 S.W.2d 98, 101 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref d n.r.e.). No party pled or contends that the written waiver agreement is ambiguous. As a result, it was not error for the trial court to deny the offer of George’s understanding of the release arid waiver agreement. Issues two, three and seven are overruled.

Error in Jury Selection

In Issue four, the Hospital complains the trial court erred in failing to strike four veniremembers for cause—Ms. Hazleton, Ms. Phillips, Mr. Stevenson, and Mr. Troup. During voir dire, Ms. Hazle-ton indicated that her feelings about all that Mr. George had been through would cause her to “give him money even in a situation where he did not carry the burden of proof that the Court [asked her] to look at.” Ms. Phillips indicated' “I would have trouble not giving him money—something, anyway,” even if George failed to carry his burden of proof. Mr. Stevenson stated that even if the evidence showed no negligence he would not be able to award no money. Mr. Troup stated that he knew Mr. George and Mr. George’s wife, Wendy, and that he did not think that knowing them would cause him to lean either way.

The Hospital’s attorney used four of his peremptory strikes on these venire-members, and used his other two peremptory strikes as well. The Hospital’s attorney requested the trial court allow the Hospital four additional strikes, but the trial court denied the request. At that point, the Hospital’s attorney made a record that had he been allowed four additional strikes, he would have stricken Mr. Richardson, Ms. Goins, Mr. Anders, and Mr. Dausel. Mr. Richardson, Ms. Goins, Mr. Anders and Mr. Dausel joined six of the other jurors in the issues found against the Hospital, resulting in the trial court’s rendering judgment against the Hospital.

The Hospital used all six of its peremptory strikes provided under the rules. Tex.R. Civ. P. 233. There is no requirement that a party identify the reasons the remaining veniremembers that it would have stricken were objectionable. Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 89-91 (Tex. 2005) (not yet released for publication, subject to revision or withdrawal). The Hospital properly preserved error by using its peremptory challenges against veniremembers it requested the trial court strike for cause, exhausting its other peremptory challenges, and notifying the trial court that other veniremembers objectionable to it remained on the jury panel. Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 890 (Tex.1985).

Because the error was preserved, we analyze the information provided by the four veniremembers the trial court refused to strike for cause to evaluate whether any of the four were disqualified to serve as a matter of law. We consider the entire examination, and not just the answers of these four veniremembers that arguably reflect bias. Cortez, 159 S.W.3d 87, 93-94.

Under Texas law, a prospective juror who has a bias or prejudice in favor of or against a party is disqualified to serve on the jury. See Tex. Gov’t Code Ann. § 62.105(4) (Vernon 1998); Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex.1998) (error in failing to strike a juror who stated she could not be fair to the defendant because of the results of medical treatment to her father). On the other hand, an expression of a bias that is subject to more than one interpretation or is uncertain, referred to as equivocal bias, is not a ground for disqualification. Cortez, 159 S.W.3d 87, 89-90, 93-94 (no error where veniremember stated he had a bias against lawsuits but he was willing to try to listen and decide it on the law and the evidence); Goode v. Shoukfeh, 943 S.W.2d 441, 452 n. 4, 453 (Tex.1997) (no error where venire-member stated that although he leaned a little toward the defendant based upon what he had heard so far that he could make a decision based on the evidence that came from the witness stand).

The purpose of jury selection is “to provide a jury composed of persons who are not biased or prejudiced. The object is an impartial jury.” Hallett, 689 5.W.2d at 889. Bias has been defined as “an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality.” Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963). In Compton, the Supreme Court held that a juror’s statements that he did not believe in lawsuits, and had not brought a suit as a result of an accident he was in, were insufficient to show bias as a matter of law. Id. at 181-82.

In this case, as is true in most trials, many of the jurors expressed their views in response to the lawyers’ questions during voir dire. The trial judge heard the responses of the individual veniremembers and the requests of the lawyers, and disqualified a number of veniremembers who expressed bias. In fact, the trial judge struck fourteen of the veniremembers for cause, and we note that the vast majority of these strikes were at the request of the attorney for the Hospital.

With respect to the venire-members the trial court refused to strike, we imply that the trial court ruled that they were not biased or prejudiced. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963). We agree the trial court ruled properly in refusing to strike Mr. Troup, who acknowledged that his acquaintance with Mr. and Mrs. George would not play a role in his service as a juror. Mr. Troup was not disqualified as a matter of law. See Swap Shop, 365 S.W.2d at 153-54 (defendant’s being father-in-law of juror’s friend and hunting companion insufficient to show bias as a matter of law when questioning indicated juror would follow court’s instructions).

However, the trial court’s rulings and implicit finding of no disqualification regarding the biases expressed by jurors Hazleton, Phillips, and Stevenson are more troublesome. Hazleton and Stevenson indicated without equivocation that they would favor George in this case with an award even if he failed to prove his case. Hazleton stated in voir dire that she would give Mr. George money even if plaintiff failed to carry his burden of proof. Stevenson acknowledged that if at the end the evidence showed no negligence, he would still not be able to award no money. Ha-zleton and Stevenson’s statements are unequivocal, and there is nothing in the record indicating that either would try to follow the instructions of the trial court.

Phillips, on the other hand, indicated an equivocal bias regarding awarding money despite George’s failure to carry his burden of proof when she acknowledged that she “might have trouble”, and then went further and stated that she “would have trouble not giving him money — something, anyway.” We observe that Phillips’s statements, although subjecting her to the trial court’s discretion to disqualify her for cause, remain susceptible to the interpretation that although she would have trouble reaching a verdict that awarded no money to George, she still had the capacity to follow the instructions and do so if required by the court’s instructions. Phillips’s statements about having “trouble,” although a close question, are not in the same category as the unequivocal statements of Hazleton and Stevenson.

We hold that Hazleton and Stevenson expressed an unequivocal bias in George’s favor because both tacitly indicated they would disregard instructions by the trial court on the burden of proof, and there was no indication that they would try to follow the trial court’s instructions. The trial court had no discretion to refuse to strike them for cause. See Shepherd, 962 S.W.2d at 34. As a result, we hold that it was error for the trial judge to refuse the Hospital’s request to strike venire-members Hazleton and Stevenson for bias. See Tex. Gov’t Code Ann. § 62.105(4) (Vernon 1998).

With respect to veniremember Phillips, it was within the trial court’s discretion to leave her on the jury on the record made of her potential bias in this case. The trial court did not err in denying the Hospital’s request to strike her. ' See Glenn v. Abrams/Williams Bros., 836 S.W.2d 779, 783 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

Our holding under the voir dire conducted in this case is distinguished from those conducted in Cortez, Goode, and Swap Shop in that the veniremembers in these cases stated they could set their views aside and decide the cases based upon the evidence presented them. No similar inquiry occurred in the voir dire under review here.

Harm is presumed where other objectionable jurors made the jury by virtue of the failure to strike the disqualified jurors. Cortez, 159 S.W.3d 87, 90-91. Harmful error in jury selection requires us to reverse and remand the case for a new trial. Shepherd, 962 S.W.2d at 34.

Damages Submission

In issue five and six, the Hospital complains that the trial court gave the jury a global charge that segregated only the past from the future damages, and failed to segregate certain future damages such as future medical expenses from other future damages such as future pain and suffering. In addition, the Hospital complains that the damage award was excessive. In light of our ruling on issue four, we need not reach issues five or six.

Accordingly, we reverse the trial court’s judgment and remand this cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Approximately $78,000 in plan benefits were paid to George as a result of his injuries.

      . The conspicuousness requirement is not an issue in this case.

      . We observe that, in the trial court and on appeal, George never denied or disputed that he signed the written agreement or that he was bound by its terms. Rather, the dispute at trial and on appeal is whether the waiver George signed protects both the Hospital and Columbia/HCA.

      . We further note that Reyes is distinguishable from this case. In Reyes, the employer contested the application of the fair notice requirements, but also conceded that if the conspicuousness requirement applied, then the waiver signed by the employee was inconspicuous. The appellate court remanded the cause for a fact determination of whether the employee had actual knowledge of the terms of the plan. Reyes, 134 S.W.3d at 193. Reyes did not specifically apply the "actual knowledge” exception to the express negligence requirement. Id. at 192-94. Further, as support for applying the actual notice exception, Reyes cites Dresser, 853 S.W.2d at 505(which applies "actual notice” to the conspicuousness requirement) and Dresser cites Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex.1990)(holding inconspicuous written disclaimer to be unenforceable absent actual knowledge of the disclaimer). The Hospital does not direct us to any case applying the "actual knowledge” exception to avoid an employee’s recovery where the pertinent document fails to comply with the express negligence requirement. And finally, we note that Reyes does not overrule Ethyl, which established the "four corners” rule. Reyes, 134 S.W.3d at 192-94; Ethyl, 725 S.W.2d at 707-08.

        . Nevertheless, we note that Texas Rule of Appellate Procedure 44.1(a)(2) allows an appellate court to reverse where the trial court's error "probably prevented the appellant from properly presenting the case to the court of appeals.” Id. The Texas Pattern Jury Charge states:
      Broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to support one or more of the elements submitted. Harris County v. Smith, 96 S.W.3d 230 (Tex.2002). If there is any question about the sufficiency of the evidence to support one or more of the elements, the Committee recommends that the elements of damages be separately submitted....
      Comm. On Pattern Jury Charges, State Bar Of Tex., Texas Pattern Jury Charges-General Negligence PJC 8.2 cmt. (2003) (emphasis added). “[Ajsking the jury to record its verdict as to each element of damages when there is doubt as to the legal sufficiency of the evidence will permit the losing party to preserve error without complicating the charge or the jury’s deliberations.” Smith, 96 S.W.3d at 236.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Ruben APODACA and Christine Apodaca, Appellants, v. Joe RIOS and Leslie Rios, Appellees.
    No. 08-03-00523-CV.
    Court of Appeals of Texas, El Paso.
    April 28, 2005.
    Rehearing Overruled May 25, 2005.

      Anthony C. Aguilar, El Paso, TX, for Appellants.
    Woodrow Wilson Bean III, El Paso, TX, for Appellees.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal filed by Appellants, complaining of the trial court’s entry of judgment in favor of Appellees after a bench trial. The trial court judge found in favor of Appellees and awarded money damages for a breach of contact and claims related to fraud. The trial court entered Findings of Fact and Conclusions of Law. Appellants filed a Motion for New Trial and/or Judgment N.O.V. which was denied by the trial court. This appeal follows. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellees originally sued Appellants for damages based upon a breach of contract claim arising from Appellants’ failure to repay a loan in the amount of $40,000 made by Appellees. The case was tried to the judge. During the presentation of the evidence during the case-in-chief, evidence was presented by Appellees that they contend establishes the elements of fraud on the part of Appellants. Appellees moved for an oral trial amendment which was granted by the court. After the trial of the case and before judgment was entered, Appellees filed a Motion for Leave to file their First Amended Original Petition. The trial court granted the motion and the First Amended Original Petition, which included a claim for fraud, was filed shortly before the filing of the court’s Judgment. The trial court entered a judgment finding that Appellees were entitled to judgment against Appellants for damages in the amount of $32,000, pre- and post-judgment interest, and costs of court. The court included a finding that Appellants were responsible for false representations constituting fraud against Appellees. The court filed minimal Findings of Fact and Conclusions of Law which essentially tracked the judgment. Appellants did not tender requested findings nor did they object to the findings as filed. Appellants timely filed a Motion for New Trial and or Judgment N.O.V.

The underlying factual basis for the claim is not disputed. Appellant Ruben Apodaca was a certified public accountant who performed accounting services for Ap-pellees. Appellant Christine Apodaca, the wife of Ruben Apodaca, was employed by her husband’s firm. Appellants provided general accounting services on a monthly basis for Appellees and were familiar with Appellees’ business. On February 22, 2002, Christine Apodaca telephoned Leslie Rios and inquired whether the Rioses wanted to loan $40,000 to an undisclosed client of the Apodacas. The Rioses prepared a check for $40,000 payable to Christine Apodaca which was endorsed by Christine Apodaca and deposited into Ruben Apodaca’s account. Appellees believed that the money was a loan for one of the Appellants’ clients on a short-term basis and would be repaid in one week’s time. Appellant Christine Apodaca represented that a client of the Apodaca firm needed a short-term loan to cover payroll and she offered to repay the $40,000 plus an additional $15,000. In response to several questions about the specific details of the transaction, Christine Apodaca “invoke[d] the fifth” and refused to answer the question. The judge informed Christine Apo-daca that she would “take notice and take that into consideration.” Ruben Apodaca was also questioned about the various transactions that Christine Apodaca was involved in and “invoke[d] the Marital Privilege to [not] testify against her” and refused to answer the specific questions asked.

The money originally came from a business account belonging to both Appellees. Once the money was not repaid, Appellees went to Appellants’ business office and demanded repayment. Both Appellants assured Appellees that they would repay the money within a short time. Appellants presented two separate checks to Appel-lees as repayment of the loan, but both checks were dishonored pursuant to a “stop payment” instruction received by the issuing bank. Ultimately, Appellants made a partial payment in the amount of $8,000 paid to Appellees’ attorney’s trust account. Appellees filed suit for the balance.

II. ISSUES ON APPEAL

On appeal, Appellants present eight issues attacking the judgment entered by the trial court awarding Appellees $32,000 in damages, pre- and post-judgment interest, and costs of court. Issue No. One complains about the timing of an oral trial amendment allowed by the court that they contend alleged a new cause of action. We read this issue as a complaint that the allowance of the amendment was an abuse of discretion. Issue Nos. Two through Five and Issue No. Seven complain of the sufficiency of the evidence to support the judgment as written. Issue No. Six appears to be a rhetorical question regarding whether the judgment as entered was based upon a breach of contract or fraud. We read this as a redundant issue attacking the judgment on the grounds of legal and factual sufficiency of the evidence. We will address Issue Nos. Two through Seven together. Issue No. Eight complains that the trial court should have entered judgment in favor of Appellants on the basis of a counterclaim for usury.

A. Trial Amendment

The case was tried to the judge. During the course of the trial, Appellant Christine Apodaca was questioned by Ap-pellees’ attorney regarding the specific details of the transaction surrounding the $40,000, but refused to answer the questions propounded. Appellees’ attorney requested leave of court to file an oral trial amendment regarding allegations of fraud. Appellants’ attorney objected and requested a recess. The trial court granted the oral trial amendment and denied the recess. After the conclusion of the trial but before judgment had been entered, Appel-lees filed a Motion for Leave to File First Amended Pleading. The court signed an Order granting same and they filed their First Amended Original Petition on September 26, 2003, immediately before the Judgment was filed.

Rule 66 of the Texas Rules of Civil Procedure governs the procedure at issue in the present case:

[I]f during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence. Tex.R. Civ. P. 66.

The standards for reviewing the grant of a trial amendment and denial of a motion for continuance are well established: The decision of the trial court may not be overturned on appeal except on a showing of abuse of discretion. Celotex Corp., Inc. v. Gracy Meadow Owners Ass’n, Inc., 847 S.W.2d 384, 387 (Tex.App.-Austin 1993, writ denied); see Missouri-Kansas-Texas R.R. v. Alvarez, 703 S.W.2d 367, 370 (Tex.App.-Austin 1986, writ ref'd n.r.e.) (trial amendment). A court abuses its discretion when it makes a decision without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In other words, if the trial court’s action was arbitrary and unreasonable, such action constitutes an abuse of discretion. However, the mere fact that the trial judge decided the matter differently than an appellate court would have does not demonstrate an abuse of discretion. Celotex Corp., 847 S.W.2d at 387; Downer, 701 S.W.2d at 242.

We agree with Appellants that a trial amendment that is prejudicial must have three defining characteristics. First, the pleading must assert a new matter into the proceedings that changes the nature of the trial itself. Second, the amendment is of the type that it could not have been anticipated by the opposing party. Third, the allowance of the trial amendment must not detrimentally affect the opposing party’s case. See Celotex Corp., 847 S.W.2d at 387-88; Allegheny Cas. Co. v. State, 52 S.W.3d 894, 898 (Tex.App.-El Paso 2001, no pet.).

The trial court has authority to permit pretrial amendments pursuant to Tex.R. Civ. P. 63, but can only deny a request if there is a showing that the amendment would operate as a surprise to the opposite party. Tex.R. Civ. P. 63; Allegheny Cas. Co., 52 S.W.3d at 898; Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 747-48 (Tex.App.-Dallas 1996, writ denied). A trial court may also allow a trial amendment absent a showing that the amendment would prejudice the defense. Tex.R. Civ. P. 66; Allegheny Cas. Co., 52 S.W.3d at 898; Smith, 938 S.W.2d at 748.

Thus, the opposing party must show “prejudice” before the trial court may deny the amendment. Allegheny Cas. Co., 52 S.W.3d at 898; Smith, 938 S.W.2d at 748. Only upon a showing of abuse of discretion will the trial court’s ruling be overturned. Allegheny Cas. Co., 52 S.W.3d at 898; Ohio Med. Prod., Inc. v. Suber, 758 S.W.2d 870, 872 (Tex.App.Houston [14th Dist.] 1988, writ denied).

We do not agree that Appellants have met their burden on any of the elements. It is difficult to discern how Appellants could claim that Appellees’ allegation of fraud changed the nature of the trial, was unexpected, or detrimentally affected their case. Appellants were sued for their conduct related to the $40,000 that was obtained from Appellees under questionable circumstances and not repaid. Nothing that they have presented suggests that they should have been surprised by Appel-lees’ claims of fraud. Nothing that they presented suggests that they were in any way prejudiced by the trial court’s ruling. In fact, Appellants appeared reluctant to provide any testimony as explanation for the transaction due to the criminal charges pending against Christine Apodaca. Both the claims of the “fifth amendment” and “marital privilege” confirm that Appellants understood that magnitude of the claims being pursued against them. The fact that their trial attorney claims he was surprised does not make it so. We overrule Appellants’ Issue No. One.

B. Factual and Legal Sufficiency of the Evidence

In a bench trial, factual and legal sufficiency challenges to the trial court’s findings of fact are reviewable under the same standards that are applied in reviewing evidence supporting a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We review a trial court’s conclusions of law de novo. Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex.App.-El Paso 1995, writ denied).

In Issue Nos. Two through Five and Seven, Appellants allege that there is insufficient evidence to support a fraud judgment against each Appellant verses each Appellee and that there is insufficient evidence to support a ■ finding that Ruben Apodaca “breached any contract or that he was a party to the contract.!’ Issue No. Six does not present a question for review nor complain of error by the trial court. It merely asks the question of whether the judgment as entered was for breach of contract or fraud.

Because these issues are presented as a hybrid of various issues with multiple complaints about the ruling, we read this as a “no evidence” or legal insufficiency point of error challenging the legal sufficiency of the evidence as a matter of law or alternatively, as a challenge to the factual sufficiency of the evidence.

1. Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

An “insufficiency” point invokes a broader standard, requiring this Court to consider all of the evidence and ascertain whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding is factually insufficient or so against the great weight and preponderance as to be manifestly unjust. Id.

When a party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court’s judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nat’l Bank, 762 S.W.2d 196, 204 (Tex.App.-Dallas 1988, writ denied). Accordingly, findings of fact and conclusions of law are mandatory for a party to file to avoid the onerous presumptions that apply in an appeal from a nonjury trial. When an appellant does not request or file findings and conclusions by the trial court, the appellate court presumes the trial court found all fact questions in support of its judgment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987).

If the appellant does not challenge the trial court’s findings of fact, when filed, these facts are binding upon both the party and the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ. App.-Beaumont 1980, writ ref'd n.r.e.). Accordingly, it is incumbent for the appellant to attack the findings by appropriate legal and factual sufficiency points of error. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r.e.). In an appeal of a nonjury trial, findings are specifically and meaningfully tied to appropriate standards of appellate review and are therefore truly beneficial to appellate review. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992).

2. Discussion

As noted above, Appellants have presented six issues challenging the trial court’s specific findings with regard to the obligations owed by Appellees to Appellants in connection with the $40,000 transaction. We note that Appellants did not file requested findings of fact or conclusions of law. Appellants appear to be challenging the judgment as a whole and assert that the evidence does not support a finding for fraud • or breach of contract. They do not attack specific findings nor complain of specific legal or factual deficiencies of the findings as filed. The individual Findings of Fact and Conclusions of Law are not addressed. Instead, the Appellants challenge the Findings of Fact and Conclusions of Law in five issues which consolidate their complaints about the trial court’s actions, generally asking whether there is sufficient evidence to support the judgment against each individual Appellant as regards each Appellee. As stated previously, the sixth issue does not claim error.

Notwithstanding the shortcomings of these issues, we have reviewed the entire reporter’s record and find there was ample evidence to support the court’s judgment and the findings of fact are not against the great weight and preponderance of the evidence. Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 895 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ refd n.r.e.). The trial court’s findings of fact are renewable for legal and factual sufficiency of the evidence to support them, First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.), by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a special issue. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.).

We do not have to give details of supporting evidence when upholding factual sufficiency of the evidence underlying the trial court’s judgment. Zeptner v. Zeptner, 111 S.W.3d 727, 735 (Tex.App.Fort Worth 2003, no pet.); see Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994).

We have discerned however, that the appellate record establishes that the court heard ample evidence about the relationship among the parties to support its findings. The record established that Ruben and Christine Apodaca were operating out of one location and exploited the business relationship that Appellees had developed with the Apodacas by asking for and obtaining a loan of $40,000. The money was obtained from the Appellees and placed into Appellant Ruben Apodaca’s checking account. Though he testified that he did not know about the deposit of the money into his business account, this testimony was free to be disregarded by the finder of fact. Both Appellants discussed the financial obligation created by the $40,000 with both Appellees. It is clear that the trial court believed that Appellants were equally responsible for the obligation and entered judgment accordingly. We note that neither the judgment nor the findings are specific as to the basis for the award of the judgment. In light of the failure to request such findings' on the part of Appellants, however, we hold that they are sufficient to support the judgment under either theory.

The court heard evidence regarding the transaction from all the parties. We believe there was ample evidence presented to support the critical findings made by the trial court with regard to the claims asserted by Appellees. The trial court was free to evaluate the credibility of each witness and resolve conflicting testimony as the court determined to be appropriate. Specifically, the trial court found that Ap-pellees should “have judgment against Ruben Apodaca and Christine Apodaca, jointly and severally, in the amount of $82,000.00” and that “after hearing all testimony that the Plaintiffs established that Ruben Adodaca [sic] and Christine Apoda-ca, jointly and severally, were responsible for false representations constituting fraud and all elements have been met.” Such findings support a claim for damages as asserted by Appellees and further, are supported by the record.

We also note that Appellants did not object to the findings of fact as filed nor inform the court of the alleged error in the findings. Further, Appellants did not file requested findings of fact or conclusions of law. A party has an obligation to point out deficiencies in the filed findings of fact or conclusions of law or any complaints regarding same are waived. Because Appellants did not do so, and because there is ample evidence to support the trial court’s findings, we hold that Appellants’ Issue Nos. Two through Seven are overruled.

3. Usury

Issue No. Eight complains that the trial court erred in not entering a judgment in favor of Appellants based on their “counterclaim” for usury. We agree with Appellees that asserting a claim of usury as a matter of avoidance should be pleaded as an affirmative defense. Tex.R. Civ. P. 94. We also agree that in order to assert a claim that a contract sued upon is usurious, Appellants were required to file a verified pleading. Tex.R. Civ. P. 93(11). No such pleadings were filed. Appellants filed a general denial with no affirmative defenses plead.

We also agree with Appellees that Appellants cannot now complain on appeal of a non-finding by the trial court regarding any issue of usury when no findings of fact or conclusions of law on the matter were requested or proposed. See Wade, 602 S.W.2d at 349. We overrule Issue No. Eight.

Having overruled all of Appellants’ issues on appeal, we affirm the judgment of the trial court in its entirety.

LARSEN, J., not participating.

      . Apparently, on March 1, 2004, Christine Apodaca pleaded guilty to one count of mail fraud and was sentenced to serve fifty-four months in a federal penitentiary related to allegations of a "ponzi” type scheme that resulted in the loss of almost three hundred thousand dollars by various individuals.


author: JOHN HILL, Chief Justice (Ret.).

text:
    Robert Lee MERIDYTH, Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00344-CR.
    Court of Appeals of Texas, El Paso.
    April 28, 2005.

      J. Roxane Blount, Odessa, TX, for Appellant.

      John W. Smith, District Attorney, Odessa, for State.
    Before Panel No. 5 BARAJAS, C.J., CHEW, J., and JOHN HILL, C.J. (Ret.), sitting by assignment.
   OPINION

JOHN HILL, Chief Justice (Ret.).

Appellant Robert Lee Meridyth appeals his conviction by a jury of .the offense of possession of a controlled substance, cocaine, in an amount of less than one gram. The court, citing Appellant’s two prior felony convictions, assessed his punishment at ten years in the Texas Department of Criminal Justice, Institutional Division. Appellant contends in three issues that the trial court abused its discretion by overruling his motion to suppress, that the trial court erred by overruling his objection to an argument by the State that was a comment on his right not to testify, and that he received ineffective assistance of counsel when his trial attorney, who confessed error and incompetence, failed to object to the admission of a crack pipe and crack cocaine. We affirm.

Appellant contends in Issue One that the trial corut abused its discretion by overruling his motion to suppress. In reviewing the trial court’s ruling on a motion to suppress, we give almost total deference to a trial court’s determination of historical facts and review de novo the. trial court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). Where, as here, the trial court makes no finding of historical fact, we review the evidence in a light most favorable to the trial court’s ruling, assuming that the trial court made implicit findings of fact supported in the record that buttress its conclusion. Id. at 327-28.

In determining whether the record supports a trial court’s decision, we generally consider only evidence presented at the suppression hearing because the ruling was based on it rather than the evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996). However, when the alleged error is the admission of evidence at trial and the issue was consensually litigated there, we will consider the evidence to have been reopened. Barley v. State, 906 S.W.2d 27, 31 n. 2 (Tex.Crim.App.1995). At trial,.Appellant presented through the testimony of his brother, without any objection by the State, evidence that was pertinent only to the subject of the issue of standing. The State cross-examined Appellant’s brother concerning these matters. We hold that the issue was re-opened at trial. Therefore, in ruling on Appellant’s issue, we will consider evidence relating to standing that was presented both upon the hearing on the motion and during the trial.

The State’s sole argument in support of the trial court’s ruling is that Appellant lacked standing to challenge the search. The definition of Appellant’s rights under the Fourth Amendment are more properly placed in substantive Fourth Amendment law than in the concept of standing. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he or she personally has an expectation of privacy in the place searched and that the expectation is reasonable. An accused lacks standing to challenge the admission of evidence obtained in searching an area respecting which he or she does not have a legitimate expectation of privacy. Id. at 143, 99 S.Ct. at 430; Calloway v. State, 743 S.W.2d 645, 651 (Tex.Crim.App.1988). Texas cases continue to discuss this concept using the language of standing. The Texas Court of Criminal Appeals has held that the movant in a pretrial motion to suppress bears the burden not only of establishing the illegality of the search and seizure of evidence, but also of showing that he or she had standing to contest the search and seizure by establishing that he or she had a reasonable expectation of pi’ivacy in the premises searched. Granados v. State, 85 S.W.3d 217, 222-23 (Tex.Crim.App.2002), cert. denied, 538 U.S. 927, 123 S.Ct. 1578, 155 L.Ed.2d 321 (2003). Under either wording, Appellant had the burden of showing that he had a reasonable expectation of privacy in the premises searched.

The factors that we are to consider in determining whether an accused has standing, or a reasonable expectation of privacy, to challenge the search include: (1) whether the alleged aggrieved person has a property or possessory interest in the thing seized or the place searched; (2) whether he was legitimately on the premises; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the search, he took normal precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; and (6) whether the claim of privacy is consistent with historical notions of privacy. Calloway, 743 S.W.2d at 651.

At the hearing on the motion to suppress, the State presented evidence showing that officers with the Texas Department of Public Safety, the Federal Drug Enforcement Administration, as well as local officers, were engaged in a narcotics investigation. It was originally their intention to stop a motor vehicle, but that did not happen. Officers were advised by radio to “hit the house,” which was located in Odessa. Acting without a warrant, officers went probably 50-75 yards off the public roadway on private property to the point where they encountered Appellant. While standing outside the barn on the property, they encountered three males inside the barn and ordered them to sit down and let them see their hands. Appellant made overt movements and put his hands behind his back. At that point, the officers recovered a crack pipe that Appellant was trying to hide in the hay. After handcuffing and arresting Appellant, they found one rock of cocaine in the brim of his hat. At the hearing on the motion to suppress, David Meridyth, Appellant’s brother, testified that Margaret Leyva owns the property in question, and that he leased the property from her. He indicated that no one produced a search warrant prior to entering on his property nor obtained his consent to make a search on the premises. David indicated that Appellant was working for him as a groomer or stall cleaner on the day of Appellant’s arrest. David testified at trial that Appellant was living on the property, that he had possessions in the house, and that he enjoyed the usage of the property just as if it was his. He indicated that he would have stated that Appellant lived there in the suppression hearing if he had been asked. When asked what he put up to keep people from coming into the barn and barn area, David testified, ‘Well, I built, it is a gate on the front and it is made of screen that I keep it locked.” He emphasized that the barn was immediately adjacent to the property where the house is and that there were no open fields. David related that the property was about 200' by 200', or approximately an acre.

Evidence was presented showing that Appellant was a guest of his brother on the premises, without any ownership interest or any formal possessory interest. Evidence was presented showing that the property seized was in his possession. Appellant was shown to be legitimately on the premises, but we do not believe that the evidence that he enjoyed the usage of the property “just as if it was his” is conclusive evidence that he had complete dominion and control over the premises or the right to exclude others. He had the cocaine hidden in his hat, and had the crack pipe with him in the barn near the main house prior to the seareh. As previously noted, Appellant was attempting to hide it just prior to his arrest. The premises were being put to a private use and Appellant’s brother, the lessee, had taken steps seeking to insure its privacy. Appellant has failed to demonstrate that his claim of privacy is consistent with historical notions of privacy. We hold that the trial court did not abuse its discretion by overruling Appellant’s motion to suppress.

Appellant relies in part upon the cases of Bower v. State, 769 S.W.2d 887 (Tex.Crim.App.1989) and State v. Peyrani, 93 S.W.3d 384, 387 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). We find those cases to be distinguishable because in each of those cases the defendant was the owner of the property where the officers conducted their search. Bower, 769 S.W.2d at 896-97; Peyrani 93 S.W.3d at 387. Appellant was a guest and an employee of the lessee of the property. Appellant’s brother David, as the lessee of the home, had a reasonable expectation of privacy in the home and its curtilage that society is willing to recognize. United States v. Vega, 221 F.3d 789, 795 (5th Cir.2000). Assuming that Appellant was an overnight guest as well as an employee, Appellant had a reasonable expectation of privacy in the home. Minnesota v. Carter, 525 U.S. 83, 90, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998). We know of no authority, however, that would extend the guest or employee’s expectation of privacy in the home to the outbuildings or curtilage of the premises, as opposed to the home itself. Therefore, considering all of the facts as we have enumerated them, we find that the right of an overnight guest or employee to a reasonable expectation of privacy in the outbuildings of a home, or the curtilage of the home, especially in the absence of evidence that such guest or employee controls and exercises dominion over the outbuilding or curtilage, or has the right to exclude others from those premises, has never been recognized as a reasonable expectation of privacy that society is willing to recognize. Meridyth has cited us to no opinion in support of the recognition of such an expectation of privacy, and we are not aware of any. Accordingly, we overrule Issue One.

Meridyth argues in Issue Two that the trial court erred by overruling his objection to an argument by the State that was a comment on his right not to testify. To determine if a prosecutor’s comment violated article 38.08 and constituted an impermissible reference to an accused’s failure to testify, we must consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily consider it to be a comment on the failure of the accused to testify. Tex.Code Crim. Proc. Ann. art. 38.08 (Vernon 2005); see Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex.Crim.App.1999). The offending language must be viewed from the standpoint of the jury, and the implication that the comment referred to the accused’s failure to testify must be clear. Bustamante, 48 S.W.3d at 765. It is not sufficient that the language might be construed as. an implied or indirect allusion to the accused’s right to remain silent. Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App.1995).

The prosecutor argued, “There has been no controverting evidence that the cocaine marked as State’s Exhibit 2 was found in defendant’s hat brim. None whatsoever. Nobody got up there and said, ‘No, it is mine.’ ‘No, it is not cocaine.’ Nothing. The only evidence you have before you — .” At that point Appellant’s counsel objected to the argument as an improper argument on the defendant’s failure to testify. The prosecutor responded that he was just telling the jury that there was no evidence that the items in question were not found on the defendant. Appellant’s counsel responded, “He said nobody got up on the stand and testified, no, it wasn’t — .” The trial court then overruled Appellant’s objection and instructed counsel to stay within the record.

Under the facts before us, there were others besides Appellant who could have testified as to whether the substance found was cocaine, and as to whether it was found in his hat brim, or as to whether the cocaine was theirs. Consequently, as seen from the jury’s standpoint, there is no showing that the language used was manifestly intended or was of such character that the jury would naturally and necessarily consider it to be a comment on the failure of the accused to testify. Any implication that the argument referred to Appellant’s failure to testify was not clear.

Appellant argues that he would have to be the one to say that the drug was his because he was the only one of the three persons there who was in possession of a drug. However, the hat could have belonged to one of the others present or they might have put their cocaine in Appellant’s hat without his knowledge. We overrule Issue Two.

Appellant insists in Issue Three that he was afforded ineffective assistance of counsel when his attorney failed to object to the admission of the crack pipe and cocaine into evidence. We apply a two-pronged test to ineffective assistance of counsel claims. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). First, Appellant must show that his counsel’s performance was deficient; second, Appellant must show the deficient performance prejudiced the defense. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. A defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the alleged error. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of counsel’s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is rehable. Id. at 687, 104 S.Ct. at 2064. In other words, Appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694; 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Mat 697, 104 S.Ct. at 2070.

Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.

When the State introduced the crack pipe and the cocaine into evidence, Appellant’s counsel stated that he had no objection. After the State rested its case, Appellant’s counsel pointed out his failure to object to evidence of crack cocaine and confessed error and incompetence. Counsel then was permitted to make his objections to the introduction of the crack pipe and cocaine. The trial court did not rule on his objections. We have already held that the trial court did not abuse its discretion in denying Appellant’s motion to suppress because the trial court could reasonably have determined that the Appellant lacked the showing of a reasonable expectation of privacy required to support his claim of an illegal search and seizure. Consequently, there was no basis for an objection at the time the exhibits were introduced based upon an illegal search and seizure. Therefore, counsel was not ineffective for failing to make such an objection, and Appellant has failed to show that the result of the trial would have been different had counsel made such an objection. Appellant argues that not objecting to such evidence if the court sustained his motion to suppress and found there was a violation of his rights was not predicated on trial strategy. However, the trial court overruled, rather than sustained, Appellant’s motion to suppress, and we have upheld the trial court’s ruling. We overrule Issue Three.

The judgment is affirmed.


author: STEVE McKEITHEN, Chief Justice.

text:
    Donald Ray BROUSSARD, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-431 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted April 21, 2005.
    Decided May 4, 2005.

      Bruce A. Hoffer, Beaumont, for appellant.
    Tom Maness, Criminal District Attorney, Philip Babin, Assistant Criminal District Attorney, Beaumont, for State.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted appellant, Donald Ray Broussard, of the offense of Possession of a Controlled Substance (cocaine). See Tex. Health & Safety Code Ann. § 481.115(a), (c) (Vernon 2003). Enhancement paragraphs in the indictment raised his punishment exposure to a second degree felony. See Tex. Pen.Code Ann. § 12.42(a)(3) (Vernon Supp.2005). The jury assessed punishment at confinement in the Texas Department of Criminal Justice — Correctional Institutions Division for a term of ten years. Appellant presents two issues for our consideration, viz:

1. Reversible error occurred when the trial court failed to grant appellant’s objection to the charge and failed to grant appellant’s requested modification to the charge in either or in both phases of the trial, regarding a presumption of a unanimous decision thereby coercing a verdict.
2. Error occurred when the trial court overruled appellant’s relevance objection during the State’s direct [sic] of a witness prejudicing the jury against, the appellant.

Finding no error, we affirm the judgment.

At the conclusion of the guilt/innocence phase of the trial, the trial court submitted its instructions to the jury. Appellant objected to the last paragraph of the instructions and tendered an orally-requested instruction in its place. The trial court overruled appellant’s objection and denied the requested instruction. We reproduce the trial court’s instructions and then a portion of the same instructions with appellant’s requested changes in bold type:

After the attorneys present their arguments to you, you will retire, select a foreperson, and consider your verdict. The arguments are not evidence and you should give the arguments only the consideration you feel they deserve during your evaluation of the evidence. It is the duty of your foreperson to make certain that your deliberations are conducted in accordance with this charge. After you have reached a unanimous decision, your foreperson should sign the appropriate verdict attached to the charge. In returning your verdict, it is your responsibility to make certain that justice is done in this case.
... deliberations are conducted in accordance with this charge. If you have reached a unanimous decision, your foreperson should sign the appropriate verdict attached to the charge. In returning your verdict, if one is reached, it is your responsibility to make certain that justice is done in this case.

Following the punishment phase eviden-tiary presentation, the trial court again submitted written instructions to the jury. Appellant objected to the general instructions provided to the jury and tendered a written requested instruction in its place. Appellant’s requested instruction was denied by the trial court. We reproduce the trial court’s general instructions as submitted to the jury and then appellant’s written requested instructions, again with the differing portions emphasized:

GENERAL INSTRUCTIONS:
The attached verdict forms are supplied for your use. When you have reached your verdict, your foreperson should fill in the appropriate form and sign their name as foreperson.
In arriving at your verdict, it is not proper to fix the punishment you assess by any .system of averaging. Your verdict must be determined only by a full, fair and free exercise of the opinions of each juror based upon the evidence presented. Your verdict must be unanimous.
Your failure to follow the law contained in this charge could result in a mistrial being declared; and you [sic] deliberate violation of these instructions could result in your being held in contempt of Court.
GENERAL INSTRUCTIONS:
The- attached verdict forms are supplied for your use. If you reach a verdict, your foreperson should fill in the appropriate form and sign their name as foreperson.
In arriving at your verdict, if you reach one, it is not proper to fix the punishment you assess by any system of averaging. Your verdict, if you reach one, must be determined only by a full, fair and free exercise of the opinions of each juror based upon the evidence presented. If you are unanimous, then you have reached a verdict.
Your failure to follow the law contained in this charge could result in a mistrial being declared; and you [sic] deliberate violation of these instructions could result in your being held in contempt of Court.

In his brief, appellant acknowledges the applicability of several provisions in the Texas Code of Criminal Procedure to jury trials. We set them out below:

TexCode CRIM. PROC. Ann. art. 35.22 (Vernon 1989):
When the jury has been selected, the following oath shall be administered them by the court or under its direction: ‘You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.”
TexCode CRim. PROC. Ann. art. 37.01 (Vernon 1981):
A “verdict” is a written declaration by a jury of its decision of the issue submitted to it in the case.
TexCode Crim. PROC. Ann. art. 37.04 (Vernon 1981):
When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.
TexCode CRIM. Proc. Ann. art. 36.31 (Vernon 1981):
After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.
TexCode CRIM. Proc. Ann. art. 37.05 (Vernon 1981):
The State or the defendant shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if the verdict is his. If all, when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any juror answer in the negative, the jury shall retire again to consider its verdict.

In the instant case, the record does not indicate that the jury had difficulty in reaching a verdict in either the guilt/innocence or punishment phases of the trial. Nevertheless, appellant appears to argue that the trial court’s instructions at issue subjected the jury to improper coercion or duress in that the instructions “pre-sup-pose[d] that a verdict will be returned[.]” In doing this, appellant continues, the trial court violated appellant’s Sixth Amendment guarantee of due process because, in presupposing a verdict would be returned, the trial court negated “the free, fair and individual vote of each juror (without duress, coercion or compromise ...[)]” from which the due process guarantee springs. Appellant, however, provides us with no authority directly on point in support of this position.

The State interprets appellant’s essential argument as “the instructions of the Court make an assumption that the jury will, in fact, reach a verdict rather than allowing for the potential of a deadlocked jury.” The State’s interpretation is based upon the lone case appellant cites for his position: Garza v. State, 974 S.W.2d 251 (Tex.App.-San Antonio 1998, pet. refd). Garza involved a claim of an improperly coercive “dynamite charge” submitted to the jury by the trial court. Id. at 255-56. Appellant contends that the wording in his requested instructions would have cured the “coercive effect” of the trial court’s mandated unanimity, which “impliedly instruct[ed] [the] jury to forgo their free, fair and individual vote.”

When a defendant’s requested instruction is contrary to the existing law, there is no error in not submitting it. See Berrett v. State, 152 S.W.3d 600, 606 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). Furthermore, when a refused instruction is adequately covered by the charge submitted, there is no error in refusing it. See Moody v. State, 827 S.W.2d 875, 893 (Tex.Crim.App.1992); Thacker v. State, 889 S.W.2d 380, 399 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Appellant’s position that it was improper for the trial court to submit jury instructions “presupposing” the jury would render a verdict, and “presupposing” the verdict would be unanimous, is contrary to established precedent that has traditionally recognized the defendant’s “valued right” to have his guilt or innocence determined before a particular tribunal. See Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 2087, 72 L.Ed.2d -416 (1982) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)); Ex parte Alexander, 141 S.W.3d 798, 800 (Tex.App.Beaumont 2004, pet. ref'd) (orig. proceeding). As support for this observation and for our analysis of the issue, we find the discussion in Soria v. State, 933 S.W.2d 46, 66 (Tex.Crim.App.1996) to be instructive.

In Soria, a capital murder/death penalty review, the defendant complained of the trial court’s refusal to instruct the jury that a failure to agree on its answers to the special issues was an option, as well as answering “yes” or “no.” Id. at 49, 66. The Court’s rationale for overruling this point reads as follows:

In Robertson [v. State, 871 S.W.2d 701 (Tex.Crim.App.1993)], we rejected the defendant’s complaint that the trial court erred in refusing to submit a jury form' providing that the jury could respond, “yes”, “no” or “we can’t decide” in answering the special issues. We said:
It is the role of a juror simply to answer the special issues either “yes” or “no,” and nothing else. Conversely, it is not the role of the individual juror to skirt, this responsibility by failing to return a vote. The issues are framed in a manner which permits them to be answered either affirmatively or negatively, and it is the purpose of the deliberative process to resolve juror vacillation.
Id. at 709-10 (quoting Nobles v. State, 843 S.W.2d 503, 510 (Tex.Crim.App.1992)). In light of the fact that a jury functions to resolve the factual issues and reach a verdict, the trial court did not abuse its discretion in failing to inform the jury that it is an option for them to fail to agree in answering the special issues.

Id. at 66.

In addressing a similar issue, the Court in Moreno v. State, 858 S.W.2d 453, 460 (Tex.Crim.App.1993) stated the following:

There is no option for the jury not to reach a verdict. While that may be an eventuality, it isn’t a course for the jury to choose. Draughon v. State, [831 S.W.2d 331, 337 (Tex.Crim.App.1992)] supra. The jury charge submitted at punishment conformed with the requirements of Article 37.071, supra. It in no way forbad or prevented an individual juror from casting a negative vote to either of the special issues.

Id. at 460. As noted above, the Court in Draughon v. State, 831 S.W.2d 331, 337-38 (Tex.Crim.App.1992), observed the following in its analysis of the defendant’s erroneous instructions complaint:

Accordingly, inasmuch as Appellant argues that jurors should be informed about the consequence of their failure to agree because nonagreement is an optional verdict under our law, he is simply mistaken. Abstention is not a jury option. Rather, as in other cases, it is merely a consequence of the jury’s inability to exercise its available options by reaching a verdict. It is not, nor would it be appropriate to suggest that it is, a verdict itself.

As noted initially, article 37.01 states that a “ ‘verdict’ is a written declaration by a jury of its decision of the issue submitted to it in the case.” Tex.Code CRiM. PROC. Ann. art. 37.01 (Vernon 1981). Additionally, in all felony trials in Texas the jury’s verdict must be unanimous. Tex.Code CRiM. PROC. Ann. art. 36.29 (Vernon Supp. 2005). These statutory provisions were the proper “law applicable in this case,” and were appropriately included in the instructions submitted to the jury in the instant case.

Because “nonagreement” or “abstention” is not a statutorily recognized option for the jury to select, it was not error for the trial court to refuse to submit appellant’s requested instructions. See Draughon, 831 S.W.2d at 337-38; Berrett, 152 S.W.3d at 606. An appellate court’s first duty in evaluating a jury instruction issue is to determine whether error exists. See Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996)). Finding no error, we overrule issue one.

With regard to issue two, appellant directs our attention to the following portion of the direct examination of State’s witness A.B. Baise, a detective with the City of Port Arthur Police Department and a member of the Jefferson County Narcotics Task Force:

Q. [State] Okay. So, based on your scales there at the police — at the task force office, it [the contraband appellant was accused of possessing] actually weighed 4.3 grams?
A. [Baise] Yes, sir.
Q. Tell the jury the approximate value of that cocaine?
[Trial Counsel]: Your Honor, I object. This has no relevance to that.
THE COURT: Overruled.
[Trial Counsel]: Thank you, your Honor.
A. Street value, 4.3 grams about $420.00.
Q. Okay. And you get that figure from if it’s $20.00 a rock—
A. At 0.2 gram.
Q. That’s about two-tenths of a gram for one rock?
A. Yes, sir.

Citing only to Tex.R. Evm 401, appellant contends eliciting the monetary value of the contraband before the jury “prejudiced” him as the monetary value of contraband is not an element of the offense and is, therefore, irrelevant. The record reflects, however, that during an earlier portion of Detective Baise’s direct testimony, the following was elicited before the jury:

Q. [State] How much does a typical rock of crack cocaine weigh?
A. [Baise] About 0.2 grams and they sell it for $20.00 on the street.
Q. Two-tenths of a gram and that goes for $20.00?
A. Yes, sir.
Q. Typically. So, in fact, is there another kind of slang term for a $20.00 rock?
A.' There’s so many different slangs throughout the U.S.; a twenty — “Give me a twenty”. That means a $20.00 piece of crack cocaine. “Give me some butter”, $20.00 piece of butter because it looks just like butter, you know, just street slang.
Q. And there again it cuts up easily into those rocks, it’s not powder?
A. Yes, sir.
Q. So, out of 1 gram of crack cocaine, you can get five $20.00 rocks?
A. Typically, yes.

It is axiomatic that to preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. See Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App.2002); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.App.1998). “In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection.” See Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2003). An error, if any, in the admission of evidence is cured where the same evidence comes in elsewhere without objection, either before or after the complained-of ruling. See Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App.2004). In the instant case, the street value of 0.2 gram of rock-cocaine was testified to without objection as being $20.00. Later, testimony indicated that the rock-cocaine recovered near appellant had a weight of 4.3 grams. As the total weight of the contraband possessed was an element of the offense, this testimony was admissible. We find that appellant has forfeited our consideration of this issue as the street value of rock-cocaine was admitted before the jury without objection earlier in the trial, thus curing any alleged error as to relevancy. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). Issue two is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

      . A "dynamite” or "Allen "-charge is typically used in an attempt to break a deadlocked jury by instructing that the result of a hung jury is a mistrial and that jurors at a retrial would be faced with essentially the same decision, and by encouraging the jurors to try to resolve their differences without coercing one another. See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 ■ (1896); Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App. 1996).

      . We also find appellant's reliance on Garza misplaced because there, the judge included very explicit A&n-charge language in the initial charge at the guilt/innocence phase. Garza, 974 S.W.2d at 255-56. In our case, the trial court's instructions did not include such language which is usually intended to "dynamite” a deadlocked jury. As Garza was the only authority referenced by appellant as authority for its presumption-of-unanimity/coercion argument, we must look elsehere for authority to address the issue.