author: Justice GARZA. CASTILLO, Justice,

text:
    Xavier Rolando RESENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 13-01-183-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    March 3, 2005.

      Amoldo R. Pena, Brownsville, for appellant.
    Armando R. Villalobos, Dist. Atty., Cynthia L. Garza, Court Reporter, Brownsville, for appellee.
   OPINION

Opinion by

Justice GARZA.

On the Court’s motion, Resendez v. State, No. 13-01-183-CR, 2004 WL 1795270 (Corpus Christi, August 12, 2004, no pet. h.) is withdrawn and this en banc opinion is issued. See Tex.R.App. P. 49.7.

Appellant, Xavier Rolando Resendez, was convicted of bribery with enhancement after a jury trial and was sentenced to fifteen years’ imprisonment and a fine of $5,000. Appellant appeals his conviction to this Court in three issues. We conclude appellant was not entrapped, the trial court did not make improper comments and remarks, and appellant’s counsel provided effective representation. We affirm the judgment of the trial court.

I. Background

In July of 2000, Michael Garza, a bail bondsman in Cameron County, Texas, contacted the district attorney’s office and informed Rebecca Rubane, an assistant district attorney, that his client, Xavier Resendez, had asked Garza if there was any way to dispose of charges against him for cocaine possession “under the table” (i.e., by bribing someone at the district attorney’s office). Garza agreed to record a telephone conversation between himself and appellant and to provide appellant the name and telephone number of an undercover agent posing as Rubane’s boyfriend in order to facilitate a sting operation. Upon receiving the undercover agent’s name and number from Garza, appellant immediately contacted the agent and discussed the price for getting his charge dismissed. Appellant then called Garza one more time, complaining about the high price being demanded. These calls were all recorded and transcribed.

Appellant and the undercover agent then had a series of telephone conversations and personal meetings where appellant provided cash payments for the bribe. Appellant also requested that the agent pass bribes to Rubane on behalf of his brother and his friend and negotiated the price for each additional bribe. A total of $7,800 in cash was delivered to the undercover agent by appellant for these bribes. All phone calls and personal meetings involving appellant were recorded by the agent. Appellant was then arrested and indicted for bribery.

Appellant pled not guilty at trial, claiming that he was entrapped by the actions of Garza, his bail bondsman and initial contact. While on the stand during the punishment phase of the trial, appellant admitted to committing bribery. On appeal, appellant argues: (1) the evidence was legally insufficient to support his conviction for the offense of bribery, as evidence of entrapment provided a defense to prosecution; (2) the trial court erred by making improper comments and remarks regarding evidence presented at trial; and (3) appellant’s trial counsel provided ineffective assistance of counsel. We address each issue in turn.

II. Legal Sufficiency

Appellant argues by his first issue that the evidence is legally insufficient to support his conviction for bribery. He claims that his defense of entrapment was successfully raised and thus constitutes a bar to prosecution. The State argues that appellant waived his right to challenge the sufficiency of the evidence when he admitted his guilt at the punishment phase of trial and that, in any event, the evidence is sufficient to support his conviction.

A. The De Garmo Doctrine

We first address the question of waiver: does the De Garmo doctrine bar appellant from challenging the legal sufficiency of the evidence? The State argues that because appellant admitted guilt during the punishment phase of trial, the De Garmo doctrine prevents him from challenging the legal sufficiency of the evidence. See De Garmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.1985). After reviewing the parties’ briefs and the case law, we conclude that appellant is not barred from challenging the legal sufficiency of the evidence on appeal.

The De Garmo doctrine is a doctrine of waiver: a defendant’s admission of guilt at the punishment phase of trial waives all non-jurisdictional errors that may have occurred at the guilt phase of trial. See Reyes v. State, 971 S.W.2d 737, 737 (Tex.App.-Houston [14th Dist.] 1998) (citing De Garmo, 691 S.W.2d at 660-61), rev’d, 994 S.W.2d. 151, 152 (Tex.Crim.App.1999). Despite the widespread attention given to the De Garmo doctrine, its potency is far weaker^ — at least against legal-sufficiency challenges — than its reputation has led some to believe.

We begin with Leday v. State, 983 S.W.2d 713, 720-26 (Tex.Crim.App.1998). In Leday, the court of criminal appeals abandoned the De Garmo doctrine as applied to certain constitutional, legal, and social guarantees — what the court described as “due process and those individual rights that are fundamental to our quality of life.” Id. at 725. One of these “guarantees” is that the judgment in a criminal trial must be supported by proof beyond a reasonable doubt. Id. Thus, under a literal reading of Leday, a legal-sufficiency challenge is not waived by a defendant’s admission of guilt at the punishment phase. See id. at 725-26.

Unfortunately, the holding in Leday is not as broad as it appears. Leday did not involve a challenge to the sufficiency of the evidence; the issue was whether the trial court erred by admitting evidence over the defendant’s objection. Id. at 715. Thus, the holding in Leday is limited to the court’s resolution of the issue presented: a defendant’s admission of guilt does not waive a court’s erroneous admission of evidence. See id. at 724-26.

In reaching this holding, the Leday court addressed and refuted the numerous justifications offered for the De Garmo doctrine, including, among other things, waiver, estoppel, harmless error, characterization of the doctrine as a “commonsense rule of procedure,” and any “analogy to the guilty plea.” See id. at 720-26. Although the court’s analysis was strongly worded, the Leday decision did not overrule the De Garmo doctrine completely. Leday involved only one issue: the admissibility of evidence. See id. at 724-26. To the extent Leday overruled the De Garmo doctrine, it did so only on that issue.

We are thus back where we started: does the De Garmo doctrine preclude appellant from challenging the legal sufficiency of the evidence? We find the answer in the holding of the De Garmo opinion itself. In De Garmo, the defendant admitted guilt at the punishment phase of trial. De Garmo, 691 S.W.2d at 660. He then challenged the legal sufficiency of the evidence on appeal. Id. at 660-61. After submission of the case, the court of criminal appeals “carefully reviewed the evidence” and found it “more than sufficient to sustain the verdict of the jury_” Id. at 661. According to the court, the evidence “would permit a rational trier of fact to find guilt beyond a reasonable doubt.” Id.

At this point, the holding of the De Garmo case ends and “the De Garmo doctrine” begins. Despite its conclusion that the evidence was sufficient, the court stated that a defendant such as De Garmo, who admits guilt at the punishment stage of trial, “not only waives a challenge to the sufficiency of the evidence ... but ... also waives any error that might have occurred during the guilt stage of the trial.” De Ganno, 691 S.W.2d at 661. This “breathtaking” statement — now called the De Garmo doctrine — is not the actual holding of the De Garmo case: the De Garmo doctrine was not applied in the De Ganno case. Leday, 983 S.W.2d at 722-23 (“Having made, without citation of authority, this sweeping statement, De Garmo has a justifiable claim to its eponymous status in this area of the law.”). As the Leday court later explained, “the De Garmo doctrine portion of the De Garmo opinion is dictum, since the Court proceeded to consider and overrule the sufficiency of the evidence point that De Garmo raised.” Id. at 723 n. 14.

The State’s brief cites no post-De Garmo precedent from the court of criminal appeals in which a legal sufficiency issue was held to be waived by a defendant’s admission of guilt during the punishment phase of trial. This Court has also failed to uncover any such precedent. We are thus faced with a choice between the “ill-written dictum” of De Garmo and De Garmo’s actual holding. See Reyes, 994 S.W.2d at 153 (describing the De Gar-mo doctrine as “ill-written dictum”). For the reasons articulated in Leday, which are excerpted below, we decline to follow the De Garmo doctrine. See id. at 720-26. We hold that a defendant’s admission of guilt during the punishment phase of trial does not waive errors related to the legal sufficiency of the evidence.

In reaching this conclusion, we note, as did the court in Leday, that the De Garmo doctrine is consequential only when an admittedly guilty person has been convicted. Id. at 724. But “the ascertainment of truth is not the only objective of our law of criminal procedure.” Id. “We as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial.” Id. “Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.” Id. at 725 (quoting Morrison v. State, 845 S.W.2d 882, 884 (Tex.Crim.App.1992)). Among these is the fundamental right that the judgment in a criminal trial be supported by proof beyond a reasonable doubt. Id. This right is not waived by a defendant’s admission of guilt after the jury has returned its verdict. See Leday, 983 S.W.2d at 726 (“Insofar as the De Garmo doctrine estops a defendant from raising on appeal a violation of any of these guaranties, it cannot be justified on the ground that the verdict of guilt was correct.”).

Accordingly, we overrule this Court’s prior decisions to the extent they have applied the De Garmo doctrine to legal-sufficiency challenges or suggested that the De Garmo doctrine remains a viable bar to legal-sufficiency challenges. See, e.g., Nunez v. State, 117 S.W.3d 309, 321 (Tex.App.-Corpus Christi 2003, no pet.). In doing so, we believe it is important to explain exactly where these decisions went awry. Take Nunez, for instance. See id. Nunez relied on two cases in addition to De Garmo: Leday, 983 S.W.2d at 725-26 and Reyes, 994 S.W.2d at 153. Nunez, 117 S.W.3d at 321. Neither of these cases applied the De Garmo doctrine to legal-sufficiency challenges.

Nunez cited Leday for the proposition that the De Garmo doctrine still applies to legal-sufficiency challenges. Id. But as we have already explained, Leday did no such thing: Leday involved the admissibility of evidence, not a legal-sufficiency challenge. See Leday, 983 S.W.2d at 715. Nunez’s reliance on Leday is even more inexplicable given that Leday lambasted the De Garmo doctrine. See id. at 725 (“[T]he De Garmo doctrine ... cannot be justified on the ground that the verdict of guilt was correct.”). Leday did not continue to apply De Garmo: it abrogated it. See id. at 725-26 (“We hold that the De Garmo doctrine cannot be invoked to prevent ... appellate review.”).

Nunez also cited Reyes, 994 S.W.2d at 153. According to Nunez’s interpretation of Reyes, a “defendant’s admission of guilt at [the] punishment phase waives sufficiency challenge[s].” Nunez, 117 S.W.3d at 321. Just like Leday, however, Reyes did not involve a challenge to the sufficiency of the evidence. The issue in Reyes was whether the trial court erred in dismissing a juror. Reyes, 994 S.W.2d at 152. Reyes therefore provides no authority on legal-sufficiency issues or on whether the De Garmo doctrine applies to such challenges.

In short, Nunez cited three cases, only one of which — De Garmo — actually dealt with the issue of legal sufficiency. As explained above, the holding of the De Garmo case and the De Garmo doctrine are two different things. Nunez followed the De Garmo doctrine, not De Garmo’s holding. Today, we follow De Ganno’s holding and, like our sister courts, abandon the De Garmo doctrine on legal-sufficiency issues. To the extent our prior decisions have held to the contrary, we overrule them.

In overruling this Court’s precedent, we are mindful of the doctrine of stare decisis. Stare decisis dictates that we adhere to precedent and not disturb a settled principle of law except upon the most urgent of reasons. McGlothlin v. State, 896 S.W.2d 183, 188-89 (Tex.Crim.App.1995). We are compelled by the analysis of the Leday court and interpret the preservation of “due process and those individual rights that are fundamental to our quality of life” as an urgent reason for today’s holding. See Leday, 983 S.W.2d at 725-26.

In passing, we note that appellant has not challenged the factual sufficiency of the evidence. Accordingly, this opinion does not decide what effect De Gamo, Leday, Reyes, and their progeny have on factual sufficiency claims when a defendant admits guilt during the punishment phase of trial. Such a decision would be warranted only if the issue of factual sufficiency were presented to this Court.

B. Entrapment

As we find no waiver, we now address appellant’s claim that the evidence against him was legally insufficient to overcome his defense of entrapment. A review of the jury’s rejection of an entrapment defense focuses on the legal sufficiency of the evidence. Flores v. State, 84 S.W.3d 675, 681 (Tex.App.-Houston [1st Dist.] 2002, pet. ref d); Torres v. State, 980 S.W.2d 873, 875 (Tex.App.-San Antonio 1998, no pet.). We review legal sufficiency challenges by considering all the evidence that supports the conviction and reviewing it in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Sanders v. State, 119 S.W.3d 818, 821 (Tex.Crim.App.2003). Our review of the sufficiency of the evidence will turn on whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found against the defendant on a defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 910 (Tex.Crim.App.1991).

Entrapment is a defense to prosecution when “the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” Tex. Pen.Code Ann. § 8.06(a) (Vernon 2003); see Williams v. State, 848 S.W.2d 777, 781 (Tex.App.-Houston [14th Dist.] 1993, no pet.) (provid ing a party with the phone number of a contact, cash and marijuana merely affords the opportunity to commit a crime and does not constitute entrapment). To satisfy the requirements of the entrapment defense, a party must produce evidence demonstrating that (1) she was actually induced to commit the offense, and (2) the inducement would have caused an ordinarily law-abiding person of average resistance nevertheless to commit the offense. See England v. State, 887 S.W.2d 902, 908 (Tex.Crim.App.1994). Because entrapment is a defense to prosecution rather than an affirmative defense, the defendant has the initial burden to produce evidence raising the defense; the burden then shifts to the State to disprove the defense beyond a reasonable doubt. Tex. Pen.Code Ann. § 2.03 (Vernon 2003); Russell v. State, 904 S.W.2d 191, 197 (Tex.App.-Amarillo 1995, pet. ref d).

Appellant argues that the testimony at trial proved that Garza, who was acting as an agent of law enforcement, entrapped appellant and caused him to commit the crime of bribery. In support of this claim, appellant points to testimony from Garza regarding the first recorded call. Garza admitted that appellant did not initially understand what he was talking about when the subject of bribery was brought up. The transcript of this phone conversation, which was admitted into evidence and read to the jury, is as follows:

Garza: Remember what we talked about the other day?
Appellant: About what?
Garza: About what you were asking me — if something could be done.
Appellant: Ah-huh.
Garza: I’ve got a number and a name for you.
Appellant: Oh ... what do you mean?
Garza: A guy for you to contact.
Appellant: I don’t understand. What?
Garza: If something could be done under the table ...
Appellant: Ah-huh.

Appellant also points to testimony from his brother and himself that indicated it was Garza, not appellant, who initially broached the idea of bribing the district attorney.

However, the trial record also includes testimony from Garza, asserting that appellant first brought up the idea of bribing someone in relation to his cocaine charges. The above conversation between Garza and appellant, in which Garza re-introduces the previously-discussed topic of bribery, shows that, once appellant understood what Garza was talking about, he vigorously assented (“Drop [the charges]! Right on!”) and began asking for detailed instructions on how to initiate the conversation with Garza’s contact. Transcripts admitted as evidence show that the only other conversation appellant had with Garza occurred immediately after appellant first contacted the undercover agent and consisted of a brief exchange during which appellant primarily complained about the high price he was being charged for the bribe. There is no evidence in the record of any further interaction between appellant and Garza. The record also includes testimony from the undercover agent who posed as the assistant district attorney’s boyfriend and arranged to collect the bribes. His testimony, which was corroborated by transcripts, revealed that appellant, after getting the contact information from Garza, called the agent repeatedly to arrange the bribe, came to prearranged meetings, gave the agent a total of $7,800 in cash, and on his own initiative, began arranging for additional bribes on behalf of two other individuals.

It is clear from the verdict that the jury did not choose to accept appellant’s entrapment defense. See Adelman, 828 S.W.2d at 421 (“the trier of fact — not the appellate court — is free to accept or reject all or any portion of any witness testimony.”). It is similarly clear from the evidence that a rational trier of fact could conclude beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict, that Garza’s conduct would not likely cause an otherwise unwilling person to bribe an official or that it actually induced appellant to do so. See Flores v. State, 84 S.W.3d 675, 684 (Tex.App.-Houston [1st Dist.] 2002, pet. refd); Williams, 848 S.W.2d at 781. Accordingly, we overrule appellant’s first issue.

III. Improper Comments

By his second issue, appellant argues that the trial court erred by making improper comments and remarks in violation of article 38.05 of the code of criminal procedure. See Tex.Code Crim. PRO. Ann. art. 38.05 (Vernon 1979). Appellant complains in his brief about three separate instances in which the trial court made comments from the bench. In the first instance, appellant’s counsel objected to a line of questioning by the State; the court noted that appellant’s counsel had been engaged in similarly inappropriate questioning tactics earlier. On the second occasion, appellant’s counsel objected to a question on grounds that essentially informed his witness how to answer, for which the court admonished counsel to “quit testifying.” In the third instance, the court noted that appellant was being unresponsive in his answers to the prosecutor. Appellant claims that these comments violate article 38.05, which reads in part, “the judge shall not ... make any remark calculated to convey to the jury his opinion of the case.” Id.

It is clear from the record that these comments do not violate this section of the code of criminal procedure, as they do not convey the judge’s opinion about the case. Further, the trial record demonstrates appellant’s counsel failed to object to any of the these comments. In order to preserve an error for appellate review, a party must make an objection to the court and the court must explicitly or implicitly make an adverse ruling or refuse to rule on that objection. Tex.R.App. P. 33.1; see Flores v. State, 871 S.W.2d 714, 723 (Tex.Crim.App.1993). Thus, appellant has waived this complaint by not stating his objection with specificity and preserving it for appeal. Mestiza v. State, 923 S.W.2d 720, 724 (Tex.App.-Corpus Christi 1996, no pet.) (“[a] timely proper objection is necessary to preserve error concerning a trial judge’s comment”).

IV. Ineffective Assistance of Counsel

By his third issue, appellant contends he was not afforded effective assistance of counsel. He points to the same three comments from the bench he complained of in his second issue and argues that his attorney demonstrated his ineffectiveness by failing to object to the trial court’s improper comments and remarks. Because this argument is based on constitutional considerations, appellant’s admission of guilt does not affect his right to bring an appeal on this ground. See Leday, 983 S.W.2d at 725-26; Reyes, 994 S.W.2d at 153.

This Court has adopted the two-pronged Strickland test to determine whether representation was so inadequate that it violated a defendant’s Sixth Amendment right to counsel. . See Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (recognizing the Sixth Amendment right to counsel); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex.App.-Corpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but-for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Hernandez, 726 S.W.2d at 57. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App.1995).

The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex.App.-Corpus Christi 2000, no pet.). Appellant must overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. Also, the acts or omissions that form the basis of appellant’s claim of ineffective assistance .must be evidenced by the record. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999).

As we have already concluded, the remarks from the bench did not constitute improper comments, and thus, counsel’s failure to object to them does not constitute error. Also, the record affirmatively demonstrates that throughout the trial, counsel more than adequately represented and protected the interests of his client. He filed a motion in limine before the trial to exclude a prior arrest, filed a motion to dismiss based on the defense of entrapment, and filed a motion to dismiss based on a violation of the attorney-client privilege by the State. He presented witnesses and cross-examined the State’s witnesses vigorously, raising an issue as to whether the audio tapes implicating his clients could have been altered, and introduced evidence that allegedly demonstrated that Garza had a financial motive for entrapping appellant. ■ Counsel asserted objections throughout the trial and received favorable rulings on some of them, including the first instance appellant complains of above. He also submitted jury instructions to the court which included an instruction on the defense of entrapment, as well as further instructions ensuring that the jury knew it was to disregard any comments from the judge expressing an opinion about the guilt or innocence of the defendant.

Because the comments from the bench were not improper, appellant cannot demonstrate that the result of the trial would have been different had his desired objections been made. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly we overrule appellant’s remaining issue on appeal, and AFFIRM the judgment of the trial court.

Concurring and Dissenting Opinion by Justice CASTILLO.

CASTILLO, Justice,

concurring and dissenting.

Respectfully, I concur with the decision to affirm. However, I respectfully dissent to the overruling of our precedent for the reasons stated in Manning v. State, 112 S.W.3d 740, 747 n. 4 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

      . The State relies on Lemons v. State, 953 S.W.2d 825, 828 (Tex.App.-Corpus Christi 1997, no pet.) ("[0]ur review of the record reveals that appellant’s only point of error has been waived by appellant’s testimony during the punishment phase of his trial.”) (citing De Garmo v. State, 691 S.W.2d 657, 657 (Tex.Crim.App.1985)).

      . In the words of the Leday court:
      The stated reason for refusing to reverse a conviction of such an appellant for insufficient evidence was that on the retrial the State would certainly obtain conviction by using the appellant's testimony from the first trial. If that reason ever had validity, it disappeared after the Supreme Court's holding that the Double Jeopardy Clause of the Fifth Amendment would be violated by a retrial after an appellate court held that the evidence of guilt was legally insufficient. Insofar as these early precedents which underly our "De Garmo doctrine” held that appellate complaints about insufficient evidence of guilt would be futile when the appellant admitted his guilt at the punishment phase, they cannot be relied on.

        Leday v. State, 983 S.W.2d 713, 721 (Tex.Crim.App.1998) (citations omitted).
      The Leday opinion also illustrates the basic unfairness imposed upon defendants by the De Garmo doctrine: if the defendant admits guilt at the punishment phase, the De Garmo
        doctrine prevents an appeal. However, if the defendant continues to deny guilt, the potential consequences include punishment for perjury and a potentially longer sentence for failure to show remorse. If the defendant tries to avoid this problem by refusing to testify at all during the punishment phase, the opportunity is lost for the defendant to give the jury meaningful mitigating information that only the defendant can provide. Id. at 723-24.

      . See also Lemons v. State, 953 S.W.2d 825, 828 (Tex.App.-Corpus Christi 1997, no pet.); Lopez v. State, 852 S.W.2d 695, 697-98 (Tex.App.-Corpus Christi 1993, no pet.); Landry v. State, No. 13-03-489-CR, 2004 WL 2335980 at *1-2 (Tex.App.-Corpus Christi June 24, 2004, no pet. h.) (not designated for publication); Grier v. State, No. 13-03-590-CR, 2004 Tex.App. LEXIS 2914, at *9 (Tex.App.-Corpus Christi April 1, 2004, no pet.) (not designated for publication).

      . See Cochran v. State, 107 S.W.3d 96, 100 (Tex.App.-Texarkana 2003, no pet.) ("the [Le-day ] case has ... cast doubt on the continued viability of the De Garmo rule as it relates to sufficiency of the evidence challenges”); Duffy v. State, 33 S.W.3d 17, 22 (Tex.App.-El Paso 2000, no pet.) (stating that "the Court of Criminal Appeals has essentially abrogated the De Garmo doctrine in recent years”). See also Thomas v. State, No. 07-99-0035-CR, 2003 WL 124824, at 3 (Tex.App.-Amarillo Jan.15, 2003, no pet.) (not designated for publication) (stating that "admissions of guilt at punishment should not be viewed as waivers of several types of trial errors, including challenges to the admission of evidence and the legal sufficiency of the evidence”); Grant v. State, No. 14-01-475-CR, 2002 WL 835016, at 2 (Tex.App.-Houston [14th Dist.] May 2, 2002, pet. ref d) (not designated for publication) ("Because the Texas Court of Criminal Appeals has abrogated the DeGarmo doctrine, we will consider the merits of appellant's [sufficiency of the evidence] complaints.”); Washington v. State, No. 01-01-417-CR, 2001 WL 1589112, at *2 (Tex.App.-Houston [1st Dist.] Dec. 13, 2001, no pet.) (not designated for publication) ("[Because] Leday v. State abrogated the DeGarmo case[,] ... we look to the merits and determine whether the facts in this case were sufficient to sustain appellant's conviction.”); Cloud v. State, No. 03-99-165-CR, 2000 WL 719405, at *4 n. 3 (Tex.App.-Austin May 25, 2000, pet. ref’d) (not designated for publication) ("The Leday court excluded from that sweeping waiver [(i.e., the De Garmo doctrine) ] certain values fundamental to the justice system .... [, including] that convictions be supported by sufficient evidence.”); Richardson v. State, No. 05-98-1728-CR, No. 05-98-1729-CR, 1999 WL 796757, at 1 n. 1 (Tex.App.-Dallas Oct. 7, 1999, no pet.) (not designated for publication) ("The Texas Court of Criminal Appeals abrogated the De Garmo doctrine; therefore, we will consider the merits of appellant's [sufficiency of the evidence] complaints.”).

      . The State is not contesting that Garza was acting as an agent of law enforcement when he recorded his conversations with appellant. Therefore, the only question remaining is whether Garza ''induced” appellant to commit the offense. See Flores v. State, 84 S.W.3d 675, 682 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d).


source: Caselaw Access Project

author: JOHN CAYCE, Chief Justice.

license: Public Domain

text:
    IAC, LTD., Bonded Structures, Ltd., Van Horn Aviation, L.L.C., and Parts Manufacturing Associates, Appellants, v. BELL HELICOPTER TEXTRON, INC., Appellee.
    No. 2-04-142-CV.
    Court of Appeals of Texas, Fort Worth.
    March 3, 2005.

      Whitaker, Chalk, Swindle & Sawyer, L.L.P., David R. Childress, Richard L. Schwartz, Mack Ed Swindle and Thomas F. Harkins, Jr., Fort Worth, TX, for Appellants.
    Smith & Moore, LLP, Charles H. Smith, David V. Denny and Andrew M. Gilbert, Dallas, TX, for Appellee.
    PANELA: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

In this interlocutory appeal, appellants appeal the trial court’s order enjoining them from using trade secrets relating to Bell Helicopter Textron, Inc.’s 206B and OH-58 helicopter blades. In eight issues, appellants contend that the trial court erred in granting the temporary injunction, excluding the testimony of an absent witness, and setting the amount of the bond, and that the temporary injunction is defective on its face. We will affirm.

In an appeal from an order granting or denying a temporary injunction, the scope of review is restricted to the validity of the order granting or denying relief. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex.App.-Fort Worth 2003, no pet.). Whether to grant or deny a request for a temporary injunction is within the trial court’s discretion, and we will not reverse its decision absent an abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Fox, 121 S.W.3d at 857. Accordingly, when reviewing such a decision, we must view the evidence in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor, and determine whether the order was so arbitrary that it exceeds the bounds of reasonable discretion. Fox, 121 S.W.3d at 857; Univ. Health Svcs. v. Thompson, 24 S.W.3d 570, 576 (Tex.App.Austin 2000, no pet.). A trial court does not abuse its discretion if it bases its decision on conflicting evidence and evidence in the record reasonably supports the trial court’s decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Fox, 121 S.W.3d at 857. An abuse of discretion does not occur as long as there is some evidence to support the trial court’s decision. Int’l Fid. Ins. Co. v. Wise County Bail Bd., 83 S.W.3d 257, 260 (Tex.App.Fort Worth 2002, no pet.).

Appellants are trying to compete with Bell in the helicopter replacement blade market. They have spent approximately one million dollars to design and prepare for the manufacture of a replacement blade for Bell’s 206B helicopter, which would be priced slightly lower than Bell’s blade. In 2001, Jim Van Horn formed Van Horn Aviation, L.L.C. to develop the 206B replacement blade. Randy Stevens, principal of IAC, Ltd., agreed to manufacture and market the replacement blade.' At the time, IAC, Ltd. was a Customer Service Facility (“CSF”) for Bell. As a CSF, IAC, Ltd. received proprietary data relating to the Bell 206B rotor blade. Stevens agreed to use the data disclosed by Bell to IAC, Ltd. solely for the purpose of repairing Bell helicopters.

Van Horn planned to use public domain documents, reverse engineering, and his original design to design the replacement blade. Knowing that Bell’s OH-58 blade was similar to its 206B blade, for which he was unable to obtain public documents, Van Horn purchased the Depot Maintenance Work Report (“DMWR”) for Bell’s OH-58 helicopter from Newport Aeronautical Sales. Using the information in the DMWR, he then performed tests on a 206B blade to determine the degree of similarity between it and the OH-58 blade. His tests showed that the contour and twist data for the two blades were identical. Van Horn used the OH-58/206B contour and twist data for the replacement blade as well as some of the same sealants and adhesives that Bell uses for the 206B blade.

When Bell learned that appellants were marketing their replacement blade, it sued them for misappropriation of trade secrets, unfair competition, theft of trade secrets, breach of contract, and breach of fiduciary duty. On March 16, 2004, Bell applied for and received a temporary restraining order. On May 6, 2004, after a hearing, the trial court signed an order granting Bell a temporary injunction.

In appellants’ first, second, third, and sixth issues, they contend that the trial court abused its discretion in granting the temporary injunction because Bell failed to establish the existence of a trade secret and show irreparable harm.

To be entitled to a temporary injunction, the applicant must plead a cause of action and show a probable right to recover on that cause of action and a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. A probable right of recovery is shown by alleging a cause of action and presenting evidence tending to sustain it. Fox, 121 S.W.3d at 857; Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597 (Tex.App.-Amarillo 1995, no writ). An in jury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Fox, 121 S.W.3d at 857. -

One of the causes of action upon which Bell based its request for a temporary injunction was its trade secret misappropriation claim. Under Texas law, trade secret misappropriation is established by showing that a trade secret existed, the trade secret was acquired through a breach of a confidential relationship or was discovered by improper means, and the defendant used the trade secret without the plaintiffs authorization. Avera v. Clark Moulding, 791 S.W.2d 144,145 (Tex.App.-Dallas 1990, no writ); Alcatel USA, Inc. v. DGI Tech., 166 F.3d 772, 784 (5th Cir.1999). In determining whether to grant a trade secret protection by a temporary injunction, a trial court does not determine whether the information sought to be protected is, in law and fact, a trade secret; rather, the trial court determines whether the applicant has established that the information is entitled to trade secret protection until the trial on the merits. Mabrey v. SandStream, Inc., 124 S.W.3d 302, 311 (Tex.App.-Fort Worth 2003, no pet.); Ctr. for Econ. Justice v. Am. Ins. Ass’n, 39 S.W.3d 337, 343 (Tex.App.-Austin 2001, no pet.). That an order is issued granting trade secret protection does not mean the protected information is a trade secret. Ctr. for Econ. Justice, 39 S.W.3d at 343.

A trade secret is “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” In re Bass, 113 S.W.3d 735, 739 (Tex.2003) (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996)). The supreme court has identified six nonexclusive criteria a comb should consider in determining whether information is entitled to trade secret protection:

(1) the extent to which the information is known outside the holder’s business; (2) the extent to which it is known by employees and others involved in the holder’s business; (3) the extent of the measures taken by the holder to guard the secrecy of the information; (4) the value of the information to the holder and its competitors; (5) the amount of effort or money expended by the holder in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Id. Information generally known and readily available is not protectable, but the fact that information is discoverable by lawful means does not deprive its owner of protection from one acquiring it by unfair means. In re Bass, 113 S.W.3d at 739; Fox, 121 S.W.3d at 858.

When Bell’s evidence is viewed in light of the Bass factors, it supports the trial court’s finding that the 206B data Bell disclosed to IAC, Ltd. and the DMWR obtained by Van Horn are entitled to trade secret protection until trial on the merits in the underlying case.

With respect to the 206B data, Bell produced evidence showing the measures it takes to guard the secrecy of the data, the amount of effort Bell expended in developing the data, the data’s value, and the difficulty with which the data could be duplicated by others. Bell showed that it guards the secrecy of its data by storing the originals of its drawings and specifications in a vault, posting security guards at its plants, requiring persons entering the plant to identify themselves and wear identification badges, checking material going in and out of the plant, limiting access to data on its internal computer system to persons with appropriate system identification and passwords, and using confidentiality agreements with its vendors to whom it supplies proprietary data. A Bell engineer testified that thirty to forty thousand hours were required to develop the design of the blade and another thirty to forty thousand hours were needed to develop techniques for its production. An employee in Bell’s marketing and sales department estimated that the replacement blade market was worth approximately twelve million dollars a year. Further testimony showed that it would not be possible to duplicate the specifications for the blade with the necessary degree of precision through reverse engineering.

With respect to the DMWR, Bell produced evidence of the measures it takes to protect the secrecy of the data contained in the DMWR and the extent to which the information is known outside of Bell’s business. Bell showed that the DMWR was created using Bell drawings that would have been marked “confidential to Bell” and that the DMWR states on its face that it is not available through Attorney General publication centers. Additional evidence revealed that the drawings used to create the DMWR are not available through a Freedom of Information Act (“FOIA”) request. Moreover, Newport Aeronautical, Van Horn’s source of the DMWR, provides the DMWR only on a “need to know basis” and does not provide electronic access to it.

This evidence is some evidence that the 206B data and the DMWR are entitled to trade secret protection. Therefore, we turn to the second element of Bell’s trade secret misappropriation claim, namely, whether appellants acquired the trade secrets through a breach of a confidential relationship or discovered it by improper means.

Several witnesses testified, and Bell’s Customer Service Facility Agreement showed, that Bell disclosed 206B data to IAC, Ltd. so that IAC, Ltd. could repair Bell’s helicopters. Pursuant to a confidentiality agreement, however, IAC, Ltd. had an obligation to keep the Bell data confidential. Stevens, the president of IAC, Ltd., was a partner with Van Horn in appellants’ 206B replacement blade project. IAC, Ltd. kept the 206B data from Bell in its library, and Van Horn had access to it. The contour and twist data for the 206B blade is identical to that for the replacement blade. Such evidence tends to support a reasonable inference that appellants acquired the 206B data through a breach of IAC, Ltd.’s confidential relationship with Bell. Furthermore, Bell’s showing that the DMWR was not available through Attorney General publication centers, the drawings upon which the DMWR was based were not available through a FOIA request, and Newport Aeronautics provided the DMWR on a “need to know” basis is evidence that raises the possibility that the disclosure of the DMWR was improper. See Williams v. Curtiss-Wright Corp., 681 F.2d 161, 164 (3d Cir.1982) (holding that under section 757 of the Restatement of Torts, the apparently erroneous disclosure of jet engine specifications through a FOIA request did not affect appellant’s liability for misappropriation of those trade secrets).

Bell also supported the third element of its misappropriation of trade secrets claim by producing some evidence that appellants used the 206B data and DMWR without Bell’s authorization. Bell showed that appellants used contour and twist data contained in both the 206B data disclosed to IAC, Ltd. and the DMWR and that they used primer and adhesive specifications present in the 206B data. In addition, Van Horn created his certification plan to submit to the Federal Aviation Administration for the 206B project the same day he purchased the DMWR. IAC, Ltd.’s confidentiality agreement expressly prohibited it from using the 206B data, and Bell did not authorize Van Horn to use the Bell data contained in the DMWR. Because Bell presented some evidence to support each element of its trade secret misappropriation claim, it has shown a probable right to recover under this cause of action. Miller Paper Co., 901 S.W.2d at 597.

Next we review whether Bell met its burden of showing that a probable, imminent, and irreparable injury will result before trial absent a temporary injunction. The evidence shows that appellants have possession of Bell data entitled to trade secret protection and are actively using that information to compete with Bell in the replacement blade market. When a defendant possesses trade secrets and is in a position to use them, harm to the trade secret owner may be presumed. Fox, 121 S.W.3d at 860; see also T-N-T Motorsports, Inc. v. Hennessey Motorsports, 965 S.W.2d 18, 24 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (holding that appellant possessed confidential information and was in a position to use it; thus, appellant was likely to use information to former employer’s detriment). The threatened disclosure of trade secrets constitutes irreparable injury as a matter of law. Williams v. Compressor Eng’g Corp., 704 S.W.2d 469, 471 (Tex.App.-Houston [14th Dist.] 1986, writ refd n.r.e.) (citing FMC Corp. v. Vareo Int’l, Inc., 677 F.2d 500, 503 (5th Cir.1982)).

Additional evidence shows that appellants’ blades were going to be available for shipment around June 15, 2004 and would be priced lower than Bell’s blade. Bell’s Executive Director of Integrated Product Solutions testified that the creation of a lower-priced 206B replacement blade market would undermine the goodwill that Bell has with its clients, leading to an incalculable loss of business goodwill. Loss of business goodwill or loss that is not easily calculated in pecuniary terms is sufficient to show irreparable injury for purposes of obtaining a temporary injunction. Byrd Ranch, Inc. v. Interwest Sav. Assoc., 717 S.W.2d 452, 454-55 (Tex.App.-Fort Worth 1986, no writ); Martin v. Linen Sys. for Hosp., Inc., 671 S.W.2d 706, 710 (Tex.App.-Houston [1st Dist.] 1984, no writ). Accordingly, Bell has satisfied the imminent and irreparable injury requirement.

Based on all the foregoing evidence, we hold that Bell satisfied the temporary injunction requirements for its trade secret misappropriation claim. Therefore, the trial court did not abuse its discretion by granting the temporary injunction. We overrule appellants’ first,' second, third, and sixth issues.

In their fourth and fifth issues, appellants complain that the temporary injunction is unduly vague, imprecise, and devoid of required findings. Specifically, they complain that the temporary injunction fails to set forth the reasons for its issuance, explain why Bell would suffer irreparable harm without an injunction, and state the precise conduct proscribed by the injunction. They also complain that the injunction is overbroad in its limitation of their livelihood beyond the scope of any putative trade secret or contractual protection.

Every order granting an injunction shall set forth the reasons for its issuance. Tex.R. Civ. P. 683. The trial court is not required to explain its reasons for believing that the applicant has shown a probable right to final relief, but it must give the reasons why injury will be suffered if the interlocutory relief is not ordered. Cook United, Inc., 464 S.W.2d at 106, Transp. Co. of Tex. v. Robertson Transp., 152 Tex. 551, 261 S.W.2d 549, 553 (1953); Hamby, 609 S.W.2d at 868. The reasons given by the trial court for granting or denying a temporary injunction must not be mere conclusionary statements. Int’l Bhd. of Elec. Workers Local Union 479 v. Becon Const. Co., Inc., 104 S.W.3d 239, 244 (Tex.App.-Beaumont 2003, no pet.); Byrd Ranch, Inc., 717 S.W.2d at 454. The requirement of specifying the reasons for granting a temporary injunction is mandatory, and noncompliance amounts to an abuse of discretion. Hamby, 609 S.W.2d at 868; Toby Martin Oilfield Trucking, Inc. v. Martin, 640 S.W.2d 352, 355 (Tex.Civ.App.-Houston [1st Dist.] 1982, no writ).

In this case, the injunction identifies Bell’s harm and explains why it is irreparable. It explicitly states that Bell has shown that appellants have possession of Bell data entitled to trade secret protection and are actively using that information to compete with Bell in the replacement blade market. Because harm to the trade secret owner may be presumed when a defendant possesses trade secrets and is in a position to use them, Fox, 121 S.W.3d at 860; T-N-T Motorsports, Inc., 965 S.W.2d at 24, the trial court’s findings about appellants’ possession and use of Bell helicopter blade information constitute a reason that Bell would be harmed without injunctive relief. The injunction further states that Bell’s injury is irreparable because “it cannot be adequately compensated in damages or the damages cannot be measured by any pecuniary standard” and that “a legal remedy may be also inadequate since an award of damages may come too late.” Accordingly, we hold that the injunction adequately sets forth the reasons for its issuance by identifying Bell’s harm and explaining why it is irreparable.

We now turn to appellants’ complaint that the trial court failed to state the precise conduct proscribed by the injunction. Appellants argue that the injunction specifies neither the information at issue nor the manner in which it may be used.

Every order granting an injunction shall be specific in terms; it shall describe in reasonable detail and not by reference to the complaint or other document the act or acts sought to be restrained. Tex.R. Civ. P. 683. In this case, the injunction enjoins appellants and their agents, officers, servants, employees and attorneys, and anyone in active concert or participation with them, who receive actual notice of the injunction by personal service or otherwise, from the following behavior:

(1) using Bell trade secrets and confidential information in the manufacture of replacement blades for Bell’s 206B helicopter in competition with Bell; (2) disclosing Bell trade secrets to additional third parties; (3) directly or indirectly disclosing, transferring or using Bell’s proprietary information in any way, shape, manner or form; (4) destroying, altering, concealing or modifying any of their documents, records, electronic data, related to their activity in connection with the design, manufacture and testing of replacement blades; (5) copying, communicating, transmitting, publishing, disclosing or transferring to any person, any of Bell’s proprietary information related to this case; and (6) destroying, altering, concealing, or modifying any documents or records, including electronic data, concerning the gathering, use and/or disclosure of Bell proprietary information.

The meaning of “Bell trade secrets and information” is apparent from the text of the injunction. The injunction states that “Bell has shown that the information at issue is proprietary to Bell and is trade secret.” It goes on to identify the “information at issue” as information pertaining to Bell’s 206B and OH-58 helicopter blades. The injunction clearly prohibits appellants from using, disclosing, destroying, transferring, copying, communicating, transmitting or publishing this information. Thus, the injunction is sufficiently specific.

Because the injunction meets the requirements of Rule 683 by specifying the acts from which appellants are restrained and stating the reasons for its issuance, we overrule appellants’ fourth and fifth issues.

In appellants’ seventh issue, they contend that the trial court erred in excluding the testimony of George Posey, the president of Newport Aeronautical Sales. Appellants sought testimony from Posey that he obtained the DMWR through a FOIA request. They obtained an affidavit from Posey and arranged for him to testify by telephone. The trial court sustained Bell’s objection to Posey’s testimony in either form because appellants did not list him as a witness. Appellants argue that the trial court abused its discretion in excluding Posey’s testimony because the expedited nature of the temporary injunction hearing was good cause for his nondisclosure and because his testimony was rebuttal testimony.

A trial court must exclude a witness besides a named party if the witness was not disclosed unless the court finds that there was good cause for the failure to timely respond or that the failure to timely respond would not unfairly surprise or prejudice the other parties. Tex.R. Civ. P. 193.6(a). The burden of establishing good cause or the lack of unfair surprise or prejudice is on the party seeking to call the witness. Tex.R. Civ. P. 193.6(b). The Tarrant County Local Rules also require that the parties deliver to the court and the other parties a witness list at the time they report for trial. Fort Worth (Tex.) Civ. Dist. Ct. R. 3.03(c). On appeal, the party objecting to the exclusion of the testimony of an unidentified witness must show that the trial court abused its discretion in making its ruling. Beam v. Chaney, Inc., 56 S.W.3d 920, 922 (Tex.App.-Fort Worth 2001, pet. denied).

Here, the trial court did not abuse its discretion in excluding Posey’s testimony because appellants could have, and should have, listed Posey as a witness before the hearing. Appellants obtained an affidavit from Posey two days before the hearing, yet they did not disclose their intention to call him as a witness until they sought to admit his testimony during their case-in-chief. Because they offered Posey’s testimony during their case-in-chief, it cannot properly be characterized as rebuttal testimony. See Tex.R. Crv. P. 265 (stating that rebuttal testimony shall be offered after both sides present their cases-in-chief). Furthermore, the record is devoid of any-showing by appellants that Bell would not be unfairly surprised or prejudiced by Po-sey’s testimony.

Posey’s proffered testimony was also inadmissible hearsay. See Tex.R. Evid. 802. His affidavit did not fall under any exception to the hearsay rule and his telephonic testimony was inadmissible because he had not been previously deposed and it would not have been visually recorded. See Tex. Civ. PRAC. & Rem.Code Ann. § 30.012 (Vernon Supp.2004-05).

Finally, even if the exclusion of Posey’s testimony had been error, it would not have been harmful because Bell produced some evidence that the DMWR contained trade secrets, and the apparently erroneous disclosure of trade secrets through a FOIA request does not affect appellants’ liability for misappropriation of those trade secrets. Williams, 681 F.2d at 164. For all these reasons, we overrule appellants’ seventh issue.

In appellants’ final issue, they complain that the trial court erred in setting the amount of Bell’s bond at $350,000 because it is entirely insufficient. The trial court is required to set a bond when it grants a temporary injunction. Tex.R. Civ. P. 684. The applicant must post the bond, and it is payable to the adverse party if the temporary injunction is dissolved at trial. Id. The purpose of a bond is to provide protection to the enjoined party for any possible damages occurring as a result of the injunction. Bayoud v. Bayoud, 797 S.W.2d 304, 312 (Tex.App.-Dallas 1990, writ denied). The determina tion of the adequacy of the bond set by the trial court is to be made on a case-by-case basis based upon the record before the reviewing court. Maples v. Muscletech, Inc., 74 S.W.3d 429, 431 (Tex.App.-Amarillo 2002, no pet.); Stone v. Griffin Communications & Sec. Sys., Inc., 53 S.W.3d 687, 696 (Tex.App.-Tyler 2001, no pet.). The amount of a bond is within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Four Stars Food Mart, Inc. v. Tex. Alcoholic Beverage Comm’n, 923 S.W.2d 266, 269 (Tex.App.-Fort Worth 1996, no writ); Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 286 (Tex.App.-San Antonio 2003, no pet.); Maples, 74 S.W.3d at 431.

The record before us does not indicate that the trial court abused its discretion in setting the amount of the bond. Although appellants put on evidence that their investment costs exceeded the bond amount, they would not be able to recover those costs if the temporary injunction were dissolved at trial because their investment costs would not be damages caused by the issuance of the injunction. See Bayoud, 797 S.W.2d at 312. Furthermore, nothing in the record shows that appellants’ lost profits for the duration of the injunction would exceed $350,000. Van Horn merely testified that “the income that we expected to derive from the manufacturing and selling rotor blades to support my family would be lost.” This testimony is insufficient to prove lost profits. See Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994) (holding that lost profits should be supported with data from which they may be ascertained with a reasonable degree of certainty and exactness and will not be supported by uncertain or speculative evidence). Therefore, we overrule appellants’ final issue and affirm the trial court’s order granting the temporary injunction.

      . See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2004-05).

      . IAC, Ltd., fj.k/a IAC Co., d/b/a International Aviation Composites; Bonded Structures, Ltd., f/k/a Parsons Composites, L.L.C.; Van Horn Aviation, L.L.C.; and Parts Manufacturing Associates

      . The other appellants, Bonded Structures, Ltd. and Parts Manufacturing Associates, are owned by Randy Stevens and are also associated with the manufacture of the replacement blade.

      . Relying on Numed, Inc. v. McNutt, 724 S.W.2d 432, 435 (Tex.App.-Fort Worth 1987, no writ), appellant argues that the 206B data lost its trade secret protection when Bell disclosed the OH-58 data to the Army because then it could be "discovered by anyone.” Appellant assumes that the Army disclosed the DMWR for the OH-58 helicopter to its vendors without restricting its use. The fact that the DMWR was not available through Attorney General publication centers, however, is some evidence that the Army took steps to limit the availability of the DMWR and that it was not discoverable "by anyone.”

      . This case is distinguishable from Flotec, Inc. v. S. Research, Inc., 16 F.Supp.2d 992, 1004-05 (S.D.Ind.1998). In Flotee, an oxygen tank pressure valve producer sought injunctive relief against a competitor to whom it had given drawings of several component parts. The court affirmed the trial court’s denial of relief, citing the appellant’s failure to "take even the most elementary steps to protect the technical drawings it provided to [the appellee].” Flotee, 16 F.Supp.2d at 1004-05. Unlike the appellant in Flotee, who did not mark its drawings confidential or obtain a confidentiality agreement from the appellee, Bell marked its OH-58 drawings confidential, used confidentiality agreements with its vendors, and took additional measures to safeguard its proprietary information.

      . Even if the DMWR was properly obtained through a FOIA request, Bell may still prevail on its misappropriation of trade secrets claim by proving its allegation that appellants actually used the 206B data that Bell had disclosed to IAC, Ltd., rather than the OH-58 data contained in the DMWR. The fact that information is discoverable by lawful means does not deprive its owner of protection from one acquiring it by unfair means. See In re Bass, 113 S.W.3d at 739; Fox, 121 S.W.3d at 858.

      . The pertinent part of the Restatement states, "[o]ne who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if ... he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake.” Restatement (First) of Torts § 757 (1939); Stewart & Stevenson Svcs., Inc. v. Serv-Tech, Inc., 879 S.W.2d 89, 95 (Tex.App.-Houston [14 Dist.] 1994, writ denied). The trade secret sections of the Restatement of Torts are now found in the Restatement (Third) of Unfair Competition. See Restatement (Third) of Unfair Competition §§ 39-45 (1995); In re Bass, 113 S.W.3d at 739.

      . Because Bell satisfied the temporary injunction requirements for its trade secret misappropriation claim, we do not address whether Bell presented sufficient evidence to sustain the temporary injunction based on its other causes of action. ‘See Tex.R.App. P. 47.1.

      . The trial court was not required to explain its reasons for believing that Bell had shown a probable right to final relief. See State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex.1971); Smith v. Hamby, 609 S.W.2d 866, 868 (Tex.Civ.App.-Fort Worth, 1980 no writ). Therefore, we will not address appellants’ arguments attacking that portion of the injunction.

      . The injunction order in this case is distinguishable from the order in Hamby, which did not state why the applicant would suffer harm or be endangered by probable injury if not granted the preliminary injunction. Hamby, 609 S.W.2d at 868.


author: ANNE GARDNER, Justice.

text:
    Julio Alfonso ACOSTA, Appellant, v. The STATE of Texas, State.
    No. 2-03-258-CR.
    Court of Appeals of Texas, Fort Worth.
    March 3, 2005.

      Sally G. Goodman, Dallas, TX, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Chief Appellate Division, and Michael R. Casillas and Elizabeth Bourland, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Ap-pellee.
    PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant was indicted for possession of a controlled substance, cocaine, of more than 400 grams with intent to deliver. On January 9, 2003, the State proceeded on the lesser offense of possession of a controlled substance, cocaine, of 200 grams or more, but less than 400 grams, with intent to deliver and Appellant entered an open plea of guilty to the trial court. On May 28, 2003, the trial court conducted a sentencing hearing and sentenced Appellant to twenty-five years’ confinement. Appellant filed a motion for new trial arguing his plea was involuntary due to ineffective assistance of counsel and violation of his Eighth Amendment rights. The trial court conducted a hearing and denied Appellant’s motion for new trial. In three issues, Appellant argues that: (1) the trial court erred in denying his motion for new trial on the basis that his guilty plea was involuntary due to ineffective assistance of counsel; (2) his sentence violates his Eighth Amendment rights under the United States Constitution because his sentence is grossly disproportionate to the crime and inappropriate towards him; and (3) his sentence violates his Article I, Section 13 rights under the Texas Constitution because the sentence is grossly disproportionate to the crime and inappropriate towards him. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was arrested for attempting to sell a “kilo” of cocaine. Testimony showed that Appellant’s brother-in-law introduced him to a man named Joe, whom Appellant was told was looking for a drug supplier. Testimony further showed that Appellant obtained the “kilo” of cocaine from a man he knew only as Pekachu. Appellant testified that Pekachu gave him the cocaine and Appellant was supposed to meet him later at a predetermined location to deliver his money. However, Appellant stated that he did not know anything about Pekachu, other than his phone number. Appellant further testified that he went to Joe’s apartment after receiving the cocaine from Pekachu, Joe got into his car, exited, and Appellant was blocked in by Hurst police officers and arrested. It was later learned that Joe was a confidential informant. Appellant stated that once in custody he gave a written statement and signed a consent to search his home, where police recovered a stolen gun.

Appellant entered an open plea of guilty to the trial court and was fully admonished orally and in writing. Appellant answered affirmatively that he had an opportunity to discuss his case with his attorney, and he understood the range of punishment, the significance of his judicial confession, and that he was pleading guilty without a plea-bargain agreement. After receiving a pre-sentence investigation report, the trial court proceeded to sentencing on May 28, 2003. At the sentencing hearing, the trial court reminded Appellant of the charge against him and his plea of guilty on January 9, 2003. At the sentencing hearing, Appellant testified that he rejected two plea-bargain agreements of fifteen and eight years because he was hoping the court would give him another chance to be with his family. Appellant’s trial counsel asked the trial judge to consider placing Appellant on deferred adjudication or community supervision. The trial court rejected Appellant’s request and sentenced him to twenty-five years’ confinement.

Appellant filed motions for a new trial on July 2 and July 7, 2003. In his motions, Appellant argued that he received ineffective assistance of counsel, which resulted in an involuntary plea of guilty, and that his sentence violated the Eighth Amendment as cruel and unusual punishment. The trial court conducted a hearing on the motions for new trial on August 1 and August 8,2003.

HEARING ON MOTION FOR NEW TRIAL

Appellant’s trial counsel was the first to testify at the hearing on the motion for new trial. Appellant’s trial counsel stated he was retained the day after Appellant’s arrest and began meeting with Appellant and soon learned the details of Appellant’s arrest and the involvement of the confidential informant. Appellant’s trial counsel stated he first considered trying to federalize Appellant’s case because Appellant would face a lesser sentence, but that this would be contingent on Appellant being able to provide “substantial assistance” to the government. According to Appellant’s trial counsel, Appellant told him not to talk to the federal prosecutor, stating “[tjhis case is going to go away.” Appellant’s trial counsel stated Appellant “refused” to provide additional information and he thought Appellant “was not telling me the whole picture.” Appellant’s trial counsel also testified that he wanted to investigate Appellant’s brother-in-law to determine his connection with Appellant’s arrest, but Appellant refused. Appellant’s trial counsel recommended that they file a motion for an examining trial, but again Appellant refused. Appellant’s trial counsel stated he believed Appellant refused the examining trial because he feared that his bond might have been set higher. Appellant’s trial counsel stated that he also inquired into the details surrounding Appellant’s written statement and the consent to search, and although Appellant stated he was scared, he never disclosed that he was lied to or threatened by police.

Appellant’s trial counsel stated that while representing Appellant, the State offered a plea bargain of fifteen years, but Appellant rejected the offer. Appellant’s trial counsel testified that he spoke again with the prosecutor and was able to get the State to reoffer a plea of fifteen years, however Appellant again rejected the offer.

Appellant’s trial counsel testified that he filed a motion to suppress and a hearing was set for January 9, 2003. Appellant’s trial counsel testified that the State did not provide him with the full name of the informant until he arrived for the hearing on the motion to suppress and he was unsure whether the prosecutor informed him that they did not know his whereabouts, but he speculated with Appellant that the State might not be able to locate the informant. Appellant’s trial counsel said he recommended that they seek a continuance so he could fully investigate the informant before proceeding on the motion to suppress. Appellant’s trial counsel testified he did not feel that he would be acting in his client’s best interests if he proceeded on the motion to suppress without first investigating the informant. However, Appellant’s trial counsel stated he never told Appellant not to pursue the motion to suppress; rather Appellant’s trial counsel stated Appellant told him he did not want to pursue a continuance, but instead wanted to enter an open plea. Appellant’s trial counsel stated he explained the dangers of entering an open plea of guilty and further explained that he believed Appellant would be facing a sentence between twenty-five and thirty-five years if he entered an open plea, especially since he learned that the trial judge tended to render harsh sentences.

Additionally, Appellant’s trial counsel testified he negotiated with the prosecutor and was able to obtain a plea offer of eight years if Appellant accepted that day. Appellant’s trial counsel testified that he believed this was a good offer and he encouraged Appellant to take it. Appellant’s trial counsel testified that Appellant refused and Appellant told him “I don’t want to do a day in jail.” Appellant’s trial counsel testified that ultimately Appellant went against his advice and entered an open plea of guilty.

Appellant’s trial' counsel stated that he believed that' throughout his representation Appellant was relying on the “spiritual advice” of his godfather in making all of his decisions. Appellant’s trial counsel stated that Appellant seemed to believe that the charges were just going to go away. Appellant’s trial counsel also related the events of an encounter he had with Appellant and his godfather. He stated that at one of the proceedings, Appellant and his godfather asked him if he thought the judge took his gavel with him at the end of the day. Appellant’s trial counsel testified that he thought that Appellant’s godfather was going to take the gavel and use it in some sort of black magic ritual. Appellant’s trial counsel stated he told both Appellant and his godfather not to do anything illegal and further told Appellant to keep his godfather away from him.

Appellant’s trial counsel testified that he discussed every available option with Appellant regarding his case, including trying the case before the judge or a jury, pleading guilty to a jury and having the jury assess punishment, and entering an open plea. Appellant’s trial counsel stated that Appellant told him he did not want to go before a jury at any point. Additionally, Appellant’s trial counsel testified that the State was only willing to reduce the offense if Appellant entered a plea. Appellant’s trial counsel stated that if Appellant entered an open plea to the lesser offense, the trial judge could consider community supervision or deferred adjudication, but he did tell Appellant that he wasn’t necessarily going to get either.

Appellant’s trial counsel testified that he explained the plea papers to Appellant and Appellant indicated that he understood the paperwork. Furthermore, Appellant’s trial counsel “absolutely” believed Appellant made his own decision freely and voluntarily to enter an open plea of guilty.

The prosecutor assigned to the case was also called as a witness at the hearing on the motion for new trial. She testified she thought she had informed Appellant’s trial counsel of the full name of the confidential informant about a week before the suppression hearing was set, but she could not specifically recall. The prosecutor also testified that, although she learned the informant had moved and she had not attempted to locate him, she believed she could prove the State’s case without the informant based on the testimony of the police officers.

The prosecutor further testified that on the day the suppression hearing was scheduled, Appellant’s trial counsel talked her into offering eight years. She expressed that she made the offer to get rid of the case because she stated that Appellant’s ti'ial counsel had repeatedly called her and she was tired of dealing with him. Additionally, the prosecutor stated that she believed Appellant’s trial counsel had provided Appellant with good representation.

Finally, Appellant was called to testify at the hearing on the motion for new trial. Regarding the signing of his statement and the consent to search, Appellant testified that the officers told him to think how his family would suffer if he were to go to prison. Appellant stated this made him think about his family and made him decide to provide his statement. He also testified that he was told that officers were at his house and if he didn’t sign the consent to search “they were going to go anyway and pull down the door.” Appellant stated his wife was pregnant at the time and he said the officers told him “she might lose the baby” and this was the reason he signed the consent to search. Appellant testified that he told his trial counsel that the officers had lied to him in order to obtain the statement and the consent to search and he stated that his trial counsel replied, “[TJhat’s their job, that’s what they’re supposed to do.” He testified that his trial counsel did not ask him how they lied to him; however, Appellant stated he did not tell his trial counsel what the officers had supposedly said to him.

Appellant testified that his trial counsel never told him he had learned the full name of the informant, nor did he tell him he wanted to seek a continuance in order to investigate the informant. Appellant stated that he would have agreed to a continuance if he had been told. Furthermore, Appellant testified that he was interested in pursuing the motion to suppress and he did not know why a hearing had not been held, but he stated he assumed it was because the informant could not be located. Appellant also testified that his trial counsel never told him the consequences to the State’s case if the informant could not be located. Appellant stated that his trial counsel told him his only option was to accept the offer from the prosecutor and did not discuss any other options with him. However, Appellant did testify that his trial counsel did advise him not to enter an open plea to the judge and Appellant further stated that it was his decision to enter an open plea.

In addition, Appellant denied telling his trial counsel that the case was going to go away, but he stated that his trial counsel told him that he and his investigator were working to make the case go away. Further, Appellant stated he was not relying on the advice of his godfather, but rather his godfather was merely providing moral support. Appellant did not know where his trial counsel came to the idea that his godfather was going to perform black magic on the judge’s gavel. Appellant denied telling his trial counsel to stay away from his brother-in-law and testified that although he told his trial counsel that he did not believe his brother-in-law had anything to do with his arrest or being set up by the informant, had his trial counsel given him a good reason to investigate his brother-in-law, he “most likely would’ve said yes.”

Appellant testified that when he entered his plea, he signed two documents, only one of which he said he read. He stated that he didn’t get to read the other one and his trial counsel did not read either document to him. Appellant stated that he was told by his trial counsel to answer “yes” to the judge’s questions; however, Appellant didn’t testify he did not understand what was occurring and, to the contrary did state he understood that he was pleading guilty. Appellant stated that he would not have entered an open plea of guilty that- day if he had realized that they could have proceeded on the motion to suppress.

At the conclusion of the hearing, the trial judge overruled Appellant’s motion for new trial, stating “we’ve got a swearing match between the attorney and your client.”

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Appellant argues that the trial court erred in overruling his motion for new trial because the record shows that he entered his guilty plea involuntarily due to ineffective assistance of counsel.

A trial court’s ruling denying a defendant’s motion for new trial is reviewed under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or unreasonable. Id. We must view the evidence in the light most favorable to the trial court’s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court’s ruling. Id. At a hearing on a motion for new trial, the trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Woodall v. State, 77 S.W.3d 388, 393 (Tex.App.-Fort Worth 2002, pet. ref d).

When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999). 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 v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id.

As detailed above, the testimony of Appellant and his trial counsel at the hearing on the motion for new trial was in sharp conflict. In overruling the motion for new trial, the trial judge made it clear on the record that “we’ve got a swearing match between the attorney and your client.” Thus, the trial judge, as the sole judge of the credibility of the witnesses, was free to disbelieve the assertions made by Appellant that formed the basis of his claim of ineffective assistance of counsel. Additionally, the record confirms that Appellant was fully admonished orally and in writing when he entered his guilty plea, and he indicated that he understood the nature of the charges, the range of punishment, and that there was no plea-bargain agreement. Moreover, Appellant acknowledged that he decided to enter an open plea of guilty against the advice of his trial counsel and he understood that he was pleading guilty to the charges against him. A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998). Once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. McNeill v. State, 991 S.W.2d 300, 302 (Tex.App.-Houston [1st Dist.] 1999, pet. ref d, untimely filed).

Based on our review of the record, we conclude that Appellant has failed to overcome the strong presumption that his trial counsel provided adequate assistance and that his plea was voluntarily entered. Thus, we hold that the trial court did not abuse its discretion in overruling Appellant’s motion for new trial on Appellant’s ineffective assistance of counsel claim. We overrule Appellant’s first issue.

PROPORTIONALITY OF SENTENCE

In his second and third issues, Appellant argues that his sentence violates both his Eighth Amendment rights under the United States Constitution and his Article I, Section 13 rights under the Texas Constitution because the sentence is grossly disproportionate to the crime and inappropriate to him.

We first note that Appellant did not argue in his motion for new trial to the trial court that his rights under the Texas Constitution were violated. Therefore, Appellant’s claim under the Texas Constitution has not been preserved for appeal. Tex.R.App. P. 33.1(a); see Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App.1996) (holding that defendant waived any claim that his Article I, Section 13 rights under Texas Constitution were violated when no objection was lodged in trial court); Buster v. State, 144 S.W.3d 71, 81 (Tex.App.-Tyler 2004, no pet.) (holding that because the accused made no objections to the trial court regarding the issue of cruel and unusual punishment, he waived that issue with respect to any alleged violation of his rights under the Texas Constitution). Therefore, we will turn our attention to Appellant’s Eighth Amendment claim.

In addressing his Eighth Amendment claim, Appellant admits that there is confusion in the law regarding whether the Eighth Amendment contains a proportionality guarantee after the United States Supreme Court decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). However, we have previously chosen to follow the United States Court of Appeals for the Fifth Circuit in applying a proportionality analysis in addressing Eighth Amendment proportionality complaints. Moore v. State, 54 S.W.3d 529, 542 (Tex.App.-Fort Worth 2001, pet. refd). In conducting a proportionality analysis, we must first make a threshold comparison of the gravity of the offense against the severity of the sentence. Id. We are to judge the gravity of the offense in light of the harm caused or threatened to the victim or society, and the culpability of the offender. Id.

In this case, Appellant was originally indicted for possession, with intent to deliver, of more than 400 grams of cocaine, but was ultimately allowed by the State to plead guilty to the lesser offense of possession, with intent to deliver, of 200 grams or more but less than 400 grams of cocaine. The record reveals that the cocaine found in the possession of Appellant had a total weight of 976.74 grams. The lesser offense to which Appellant pleaded guilty carried a punishment of imprisonment “for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000.” Tex. Health & Safety Code AnN. § 481.112(e) (Vernon 2003). The trial court sentenced Appellant to twenty-five years’ confinement and no fine. In sentencing Appellant, the trial judge remarked that “this offense is one that greatly disturbs the court” and “I’m alarmed because of the amount of substance involved.”

Appellant argues that based on the record “[t]he trial court should have provided Appellant the opportunity for probation.” He points to the fact that he has no prior felony convictions, he previously successfully completed probations for the misdemeanor offenses of terroristic threat and driving while license suspended, he accepted responsibility for his actions, and there was no evidence that he was a known drug dealer.

We first note that there is no fundamental right to receive probation; it is within the discretion of the trial court to determine whether an individual defendant is entitled to probation. Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1720, 146 L.Ed.2d 642 (2000); Flores v. State, 904 S.W.2d 129, 130 (Tex.Crim.App.1995), cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). Additionally, possession, with intent to deliver cocaine, especially in the amount in the possession of Appellant, is a very grave offense. The greater the amount of illicit drugs possessed, the more likely use is widespread and delivery to others is intended, and the greater the harm to society. Smith v. State, 737 S.W.2d 933, 938 (Tex.App.-Dallas 1987, pet. ref'd). And as the San Anto nio Court of Appeals recognized in Thomas v. State,

Delivery of cocaine, a controlled substance, known for its addictive powers, is a serious offense. It is common knowledge that possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our' population. Studies clearly demonstrate the direct nexus between illegal drugs and crimes of violence.

916 S.W.2d 578, 583 (Tex.App.-San Antonio 1996, no pet.).

Furthermore, the twenty-five year sentence imposed on Appellant was well within, and toward the lower end, of the range of punishment set by the legislature. Notably, we are also cognizant that the Supreme Court in Harmelin upheld the imposition of a mandatory life sentence, without the possibility of parole, for possession of more than 650 grams of cocaine, and without any consideration of mitigating factors, such as the fact that the defendant had no prior felony convictions. 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-02, 115 L.Ed.2d 886. Contrasted to Harmelin, there is the possibility of parole in this case. Therefore, given the gravity of the offense, we hold that Appellant’s sentence is not grossly disproportionate in violation of his Eighth Amendment rights. Thus, Appellant’s second issue is overruled.

CONCLUSION

Having overruled Appellant’s first and second issues and concluding that his third issue was waived, we affirm the trial court’s judgment.

      . The record contains a lab report showing the total weight of the cocaine was 976.74 grams.

      . In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, concluded that "the Eighth Amendment contains no proportionality guarantee.” 501 U.S. at 965, 111 S.Ct. at 2686. Justice Kennedy, joined by Justices O’Connor and Souter, concluded that the Eighth Amendment "encompasses a narrow proportionality principle.” Id. at 997, 111 S.Ct. at 2702 (Kennedy, J., joined by O’Connor & Souter, JJ., concurring in part and concurring in judgment). Justice White, joined by Justices Blackmun and Stevens, found that the Eighth Amendment does include a "proportionality principle.” Id. at 1012, 111 S.Ct. at 2710 (White, J., joined by Blackmun and Stevens, JJ., dissenting).

      . In McGruder v. Puckett, the Fifth Circuit Court of Appeals concluded that "dispropor-tionality survives” based on a "head-count analysis” of the decision in Harmelin. 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849, 113 S.Ct. 146, 121 L.Ed.2d 98 (1992).


author: Justice WHITTINGTON.

text:
    Mark and Monica BENNETT, Appellants, v. SECURITY INSURANCE COMPANY OF HARTFORD, Appellee.
    No. 05-03-01798-CV.
    Court of Appeals of Texas, Dallas.
    March 9, 2005.
    Rehearing Overruled April 29, 2005.

      Charles L. Hoedebeck, Charles L. Hoe-debeck, P.C., Irving, Charles W. McGarry, Law Office of Charles McGarry, Dallas, for Appellants.
    Randy A. Nelson, Wade Caven Crosnoe, Beth D. Bradley, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

Mark and Monica Bennett appeal the jury’s take-nothing verdict in favor of Security Insurance Company of Hartford (SIC). In two issues, the Bennetts contend the trial judge erred in submitting the wrong issues in the jury charge. We affirm the trial court’s judgment.

BACKGROUND

Mark worked for General Aluminum as a service technician. On March 4,1996, he fell while on the job and was injured. The following day, Mark gave a statement to a claims adjuster for SIC. Mark had his first doctor’s appointment on March 7, 1996. Following several weeks of physical therapy, medication, rest, a lower back MRI, a cervical MRI, and numerous doctor’s examinations, Mark was told, on April 19, 1996, that he would need surgery to correct the large ruptured disc in his neck. That same day, SIC received a request to approve Mark’s spinal surgery. SIC formally disputed coverage on May 2, 1996 and continued its investigation of the accident and Mark’s injury. In a letter dated June 5, 1996, Mark was informed by the Texas Workers’ Compensation Commission (TWCC) that the cost of surgery would be covered. Mark’s surgery occurred on August 7,1996.

Following surgery, the Bennetts sued SIC for violations of the Texas Insurance Code and the common-law duty of good faith and fair dealing by “creating and implementing corporate policies, environments, and schemes that required its employees to create artifices or pretexts to deny, delay or refuse reasonable and necessary medical treatment once the liability for the same became reasonably clear.” Following a seven-day trial, the jury found in favor of SIC. This appeal followed.

Juky Charge

In two issues on appeal, the Bennetts claim the trial judge erred in (i) failing to submit the instructions they requested and (ii) submitting incorrect instructions in the jury charge. The Bennetts claim their requested instructions reflected what they pleaded and proved and the trial judge incorrectly submitted a different theory of liability. They argue this jury charge error caused rendition of an improper judgment as evidenced by the take-nothing verdict. We disagree.

We review a trial court’s decision to submit or refuse a particular instruction under an abuse of discretion standard of review. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000) (citing Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998)). The trial judge has “considerable discretion to determine necessary and proper jury instructions.” Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex.2000) (citing Louisiana-Pacific Corp., 976 S.W.2d at 676); In re V.L.K, 24 S.W.3d at 341. When a trial judge “refuses to' submit a requested instruction, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict.” Mandlbauer, 34 S.W.3d at 912. An incorrect jury instruction is grounds for reversal only if it probably caused the rendition of an improper judgment. Louisiana-Pacific Corp., 976 S.W.2d at 675. “To determine whether an improper jury charge constitutes reversible error, we consider the pleadings, the evidence, and the charge in its entirety.” Dallas County Sheriff’s Dept. v. Gilley, 114 S.W.3d 689, 691 (Tex.App.-Dallas 2003, no pet.).

Although the Bennetts claim the trial judge abused his discretion in submitting the wrong instructions to the jury and not giving their proposed instructions, we cannot agree. The Bennetts sued SIC for “violating the Texas Insurance Code and for breaching the common-law duty of good faith and fair dealing that was owed [Mark] in the processing of his claim for worker’s compensation benefits” by “creating and implementing corporate policies, environments, and schemes that required its employees to create artifices or pretexts to deny, delay, or refuse reasonable and necessary medical treatment once the liability for same became reasonably clear.” During voir dire, the jury pool was informed that Mark had received benefits and the case involved only bad faith in the investigation of the claim, specifically the delay in approving surgery.

The evidence showed Mark fell on March 4, 1996. SIC was informed of his injury on March 5, 1996, and that same day, one of the company’s claims adjusters, Johnna Durham, began investigating the report by taking Mark’s statement about the accident. At trial, Durham was questioned extensively about her background, how the claims process worked, why she questioned Mark’s injury, her job performance reviews at SIC generally and, specifically, whether her decision to investigate Mark’s injury was based on her March 19th job performance review. She also testified in detail about the delay in ordering copies of Mark’s medical files and requesting a second opinion as well as SIC’s decision to formally dispute coverage on May 2, 1996. Durham testified that, in a letter dated June 5, 1996 addressed to the Bennetts and copied to Dr. Capello, the TWCC stated the “second-opinion doctor” concurred with Dr. Capello’s recommendation for surgery and that “the carrier is liable for the reasonable and necessary costs of spinal surgery related to the com-pensable injury.”

Dr. Juan Capello, an orthopedic surgeon with a subspecialty in the spine, testified he first saw Mark on March 7, 1996 and concluded he had a pinched nerve in the neck and a muscle-ligament injury to the lumbar spine area. He prescribed medication, physical therapy, and rest. Dr. Capello saw Mark again on March 14 and he felt “quite strongly” Mark had a pinched nerve or a herniated disk. In early April, Mark had a lower back MRI and two appointments with Dr. Capello who told Mark to continue with physical therapy and ordered a cervical MRI.

Following his cervical MRI, Mark met with Dr. Capello on April 19, 1996, at which time the doctor recommended Mark have surgery. Dr. Capello faxed his recommendation to SIC who requested copies of Mark’s medical records and ordered a second opinion. Dr. Capello testified it was his opinion that Mark’s condition “would not get better with conservative management.” He also opined that if Mark did not have surgery, he would continue to have pain, headaches, muscle spasms, sleeplessness at night, a heaving feeling in his legs, arm pain, and numbness in his fingers. Although Mark’s surgery was scheduled for June 28, 1996, it was postponed until August 7, 1996. Dr. Ca-pello testified he did not cancel the June surgery.

Dr. Capello saw Mark on August 16, 1996 for a post-operative examination. In late August, he indicated Mark might be ready for light duty in two weeks. The following month, Dr. Capello released Mark to drive a car and mow his lawn. In November, General Aluminum had a light-duty job for Mark which involved answering phones, writing up service calls, and dealing with sales and customer supervisors by phone. Dr. Capello stated it would be “okay” for Mark to do light duty work provided he started out “at four hours a day sitting and standing intermittently, no climbing or lifting over 15 to- 20' pounds, and no frequent bending.” Mark told his therapist he could not go back to work because it was a “dangerous place to be.” In a report dated January 1997, Dr. Capel-lo stated Mark had reached his maximum medical improvement level. Three months later, General Aluminum sent Dr. Capello a letter detailing job opportunities for Mark. Believing Mark could perform one of the jobs, he asked a staff member to contact Mark. Dr. Capello testified Mark did not want to go back to light-duty work at General Aluminum. In May, Mark’s physical therapist reported to Dr. Capello

Patient cannot be compliant with physical therapy secondary to his school schedule. Patient should start biofeedback which is verified. Patient needs to go to gym/health club for workout and do maintenance at home. He needs to wean off modalities which he wants in physical therapy. He does not want to exercise when he does come to physical therapy.

In late July, in response to a letter from SIC; Dr. Capello stated he felt Mark could return to light duty. Mark complained and asked Dr. Capello for “work hardening” physical therapy instead of being released to return to work. In August 1997, Mark asked Dr. Capello to look over Mark’s nursing school application to El Centro College. In response to the question “Do you have any physical limitations which would affect your ability to lift, turn, or transfer patients?”, Mark answered, “No.” Mark also indicated he only took medication for hypertension.

In response to the question whether he had “an opinion as to whether or not [the] six-week delay [in Mark’s surgery] caused any additional damage,” Dr. Capello testified, during his deposition, “I can’t recall right now any objective evidence.” On November 21, 1997, Dr. Capello wrote “[n]o longer treating physician” on Mark’s file.

By deposition, Dr. Brooks Trotter, Mark’s internist, testified he had seen Mark fifteen times since April 1996. According to Dr. Trotter’s records, Mark had not complained of any long-term neurological deficits. Furthermore, Dr. Trotter’s examinations of Mark revealed “nothing in [Mark] to indicate irreversible injury as a result of any delay in surgery.”

Dr. R. Craig Saunders, the orthopedic surgeon who performed the second opinion examination concurring in the need for surgery, also testified by deposition. Dr. Saunders saw Mark on February 7, 1997 for an independent medical evaluation. At that time, he saw “no evidence of any acute motor process going on” and did not see “any contraindication for the patient to continue driving, lifting, and other activities other than trying to avoid heavy lifting, specifically try to stay within the 50-pound limit.” Dr. Saunders stated Mark was “overall deconditioned.” He spoke with Mark about certain activities and exercises he could do to help with his overall physical conditioning. Dr. Saunders stated that, with an active reconditioning program, Mark might be able to lift 75 to 100 pounds. He noted that Mark complained of pain in his arm and a dropped foot but that, in his opinion, these were not associated with any delay in surgery. Dr. Saunders testified that the neurological losses he would expect to find as a result of a delay in surgery such as Mark’s included loss of balance, bladder and erectile dysfunction, weakness in the extremities, and sensory paresthetic complains. According to Dr. Saunders, Mark did not present any of these issues. Dr. Saunders stated that, in his opinion, the delay in surgery did not cause an injury to Mark.

Following the close of evidence, the judge pi'ovided the proposed jury charge to the parties. Question Number 1 of the jury charge asks, “Did Security Insurance Company of Hartford fail to comply with its duty of good faith and fair dealing to Mark Bennett?” The Bennetts requested the judge instruct the jury that:

An insurer fails to comply with its duty of good faith and fair dealing by:
Failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim when the insurer’s liability has become reasonably clear;
or
Refusing to pay a claim without conducting a reasonable investigation of the claim;
or
Failing to provide workers’ compensation benefits without conducting a reasonable investigation of the claim for benefits.

The trial judge denied the request and instructed the jury:

An insurer fails to comply with its duty of good faith and fair dealing by:
Failing to pay benefits when the insurer’s liability has become reasonably clear;
or
Refusing to pay benefits without conducting a reasonable investigation.

Although the Bennetts assign this instruction as error, we cannot agree. The Bennetts’ suit against SIC was based on their belief that SIC unnecessarily delayed Mark’s surgery. The Bennetts’ presentation of evidence focused on (i) the amount of time between Mark’s March 4 injury and his August 7 surgery, (ii) SIC’s purported delay in requesting medical records and a second opinion, (iii) the postponement of the June 28 surgery, and (iv) Mark’s purported long-term injuries resulting from the delay. During closing argument, the Bennetts argued the timing of the events, emphasizing that, although SIC found out about Mark’s injury on March 5 and his doctor recommended surgery on April 19, SIC delayed or did not timely request medical records and a second opinion, resulting in Mark’s having to wait until August for surgery. The instruction given in the charge, fading to pay benefits when the insurer’s liability has become reasonably clear, focuses on this issue of timing and delay. Thus, if SIC had failed to pay when SIC’s liability on Mark’s surgery was “reasonably clear1,” the company would have failed to comply with its duty of good faith and fair dealing. Because the jury charge instruction given fairly encompassed the pleadings and the evidence, we cannot conclude the trial judge abused his discretion in denying the Bennetts’ requested instructions and submitting the instruction that was given. We overrule the Bennetts’ first and second issues.

We affirm the trial court’s judgment.

      . Due to circumstances outside the doctor's control, the report was not delivered until July 1997.

      . Work hardening is an "aggressive type of physical therapy for getting back to work.”