author: PAUL W. GREEN, Justice.

text:
    In the Interest of C.Z.B. and Minor Children.
    No. 04-02-00594-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 6, 2004.

      Per A. Hardy, Law Office of Per A. Hardy, James E. Hoffman, San Antonio, for appellant.
    Steven A. Sinkin, Karen L. Marvel, Law Offices of Sinkin & Barretto, P.L.L.C., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by

PAUL W. GREEN, Justice.

This case arises from a dispute over child support. In eight issues, appellant Roger Keith Burns (Burns) complains the trial court incorrectly calculated the amount of arrearage and interest he owes to his ex-wife appellee Diane Anglin (Ang-lin). He also complains of the trial court’s failure to grant a new trial, failure to apply the doctrine of judicial estoppel, and failure to grant a greater possession credit in his favor. Finally, Burns argues the trial court erred in awarding attorney’s fees to Anglin and in failing to award attorney’s fees to him. We affirm the judgment of the trial court.

Background

Roger Keith Burns and Diane Anglin were divorced in July of 1985. Under the terms of the divorce, Burns was ordered to pay $500 a month in child support for the couple’s two children. Between March 1, 1988 and April 20, 1989, Burns allegedly failed to make his child support payments. Anglin filed a motion for enforcement through the Bexar County Child Support Enforcement Office, and a Master’s recommendation was issued on April 20,1989 but never approved by the district court. Although the record indicates that Burns allegedly paid at least part of the $2550 recommended by the Master’s court, there is some dispute as to exactly how much he paid and whether or not he paid any interest due on the arrears.

In July of 2001, Anglin filed a motion for cumulative judgment, seeking past due child support and medical expenses, including reimbursement for her children’s past orthodontic bills. Burns counterclaimed, arguing that Anglin’s suit was frivolous and requesting attorney’s fees as sanctions. Following a trial, an associate judge found in favor of Anglin on the past due child support but denied any orthodontic fees, granted Anglin’s motion for attorney’s fees and denied Burns’s request for attorney’s fees. The district court followed the associate judge’s recommendation, denying Anglin’s request for orthodontic reimbursement but ordering Burns to pay $12,139.26 in past due child support, as well as $10,800.00 in attorney’s fees. The trial court also denied Burns’s request for attorney’s fees. Burns now appeals the district court’s decision in eight issues.

Sufficiency of the Evidence

In his first issue, Burns argues there was insufficient evidence to support the amount of arrears awarded by the trial court. We review the award of a judgment for child support arrears under an abuse of discretion standard. Worford v. Stamper; 801 S.W.2d 108, 109 (Tex.1990). When reviewing a question of legal sufficiency, we consider all of the evidence in the light most favorable to the finding, disregarding all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If there is more than a scintilla of evidence to support the trial court’s finding, then we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). In reviewing a question of factual sufficiency, we consider and weigh all of the evidence presented at trial in a neutral light, setting aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

At trial, Anglin had the burden of establishing the dollar amount of arrears owed by Burns. Tex. Fam.Code Ann. § 157.162 (Vernon 2002); see Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex.App.-Tyler 2000, no pet.); Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex.App.-Waco 1994, no writ). She presented evidence of all child support payments due from and paid by Burns by introducing the court orders setting forth Burns’s child support obligations, as well as his child support payment history from the Bexar County Child Support Registry and the State Case Disbursement Records. According to the divorce decree, Burns was required to pay $500 a month beginning on August 1,1985. In addition, under the terms of the decree, Burns was to provide medical and dental insurance for his two children. The decree was later modified, mandating that Burns pay $700 a month from December 1, 1986 until the couple’s son reached 18, at which point he was to pay Anglin $550 a month until their daughter reached 18. Using the County’s records, as well as her own recollection of payments made, Anglin and the Bexar County Child Support Collection Office compiled a chart which listed payments due, dates payments were made and the total arrears, including interest. Burns did not object to the introduction of this evidence as a general summary of what was owed and what had been paid. The total amount of arrears and interest as contemplated by these records was $26,838.45, giving Burns one month’s credit for the period of time when the couple’s son lived with him.

Once Anglin presented evidence establishing the amount of child support she believed was still owed her by Burns, the burden shifted to him, as the obligor, to show any amount claimed as an offset against the arrearage. Buzbee, 870 S.W.2d at 341. At trial, Burns introduced several affidavits signed by Anglin, one of which stated the amount of arrears owed in November of 1988 was $2500. The other affidavits listed the amount of arrears owed in 1988 and 1989. He testified that he had paid the original $2500 per the Master’s Recommendation by paying a $350 lump sum and an additional $100 a month in child support for the next two years. Bums also testified that his son had lived with him for ten months, not the one month claimed by Anglin, and argued that he was entitled to a $700 credit for each of the ten months. In addition, he presented testimony regarding expenditures made for his son, including a truck and a horse, as well as rodeo fees and living costs for the ten months his son allegedly lived with him. Burns, however, failed to present any documentation showing payments in addition to those listed on the Bexar County Child Support Registry’s list. After trial but before the associate judge entered his recommendation, Burns filed a motion for new trial with several additional checks. Although the court denied the motion as premature, it first held a hearing and gave Burns credit in the amount of $2550 for a number of the “new” checks.

Anglin’s evidence showed that Burns owed her almost $27,000 in child support and interest. Burns’s testimony, on the other hand, advocated a zero balance. Following the trial and the filing of Burns’s motion to reconsider, which included the checks not considered in Anglin’s original calculations, the trial court found Burns to owe past due child support in the amount of $5,842. The court found the total amount Burns owed to be $12,139.26 in arrears and interest after all credits and offsets. Considering all of the evidence in the light most favorable to the finding and disregarding all evidence and inferences to the contrary, we hold there is more than a scintilla of evidence to support the trial court’s finding which is within the range of arrears set forth by the parties’ evidence. Formosa Plastics Corp., 960 S.W.2d at 48; Davis, 752 S.W.2d at 522. In addition, we hold the evidence is factually sufficient. Viewing the evidence in a neutral light, the court’s ruling is not so against the great weight of the evidence as to be manifestly unjust. Cain, 709 S.W.2d at 176. Therefore, we overrule Burns’s first issue.

Motion for New TRIAL

In his second issue, Burns contends the trial court erred in failing to grant his motion for new trial. Burns specifically argues the trial court should have granted his motion for new trial based on “newly discovered evidence of canceled checks showing child support payments for which [he] was not given credit.” He contends that the existence of these cancelled checks refutes Anglin’s testimony that the list she compiled and introduced into evidence at trial contained all child support payments made by Burns.

Burns first filed his motion for new trial prior to the court’s final decision. As stated above, although the court gave Burns credit for six out of the nine “new” checks produced, it found his motion to be premature. Burns refiled the same motion after the court rendered its judgment. It is the denial of this second motion which Burns now appeals.

A party seeking a new trial on grounds of newly discovered evidence must show the trial court that: (1) the evidence has come to his knowledge since the trial; (2) it was not owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003); In re M.A.N.M., 75 S.W.3d 73, 80 (Tex.App.-San Antonio 2002, no pet.). Whether a motion for new trial on the ground of newly discovered evidence will be granted or refused is generally a matter left to the sound discretion of the trial court, and the trial court’s action will not be disturbed on appeal absent an abuse of such discretion. Jackson, 660 S.W.2d at 809; In re M.A.N.M., 75 S.W.3d at 80. In deciding whether to grant or deny a motion for new trial based on newly discovered evidence, the court will take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial. Jackson, 660 S.W.2d at 809.

Even if we assume that the evidence of which Burns complains meets the standard necessary for a new trial, we cannot find the trial court abused its discretion in denying Burns’s motion. Burns’s contention that he presents new evidence in his post-judgment motion is belied by the record. The court considered Burns’s new evidence prior to making its final ruling, specifically making a finding as to which checks were to be added to Burn’s total child support paid and which had already been credited to him. In addition, Burns’s arguments regarding the validity of Anglin’s testimony are a matter solely within the purview of the court as the trier of fact. See Texas Dept. of Mental Health & Mental Retardation v. Rodriguez, 63 S.W.3d 475, 480 (Tex.App.-San Antonio 2001, pet. denied).

Because the court has already reviewed what Burns terms as new evidence, we hold it did not abuse its discretion in denying his motion for new trial. We overrule Burns’s second issue.

Judicial Estoppel

In his third issue, Burns contends the trial court erred in failing to apply the doctrine of judicial estoppel to exclude evidence he claims was contrary to Anglin’s prior sworn pleadings and affidavits. Judicial estoppel, argues Burns, would have excluded Anglin’s exhibit C, her primary evidence of child support paid and arrears owed.

Judicial estoppel is a common law principle which precludes a party from asserting a position in a legal proceeding inconsistent with a position taken by that party in the same or a prior litigation. Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 649 (Tex.App.-El Paso 1997, writ denied). The doctrine is designed to protect the integrity of the judicial process by preventing a party from “playing fast and loose” with the courts to suit its own purposes. Id. (citing In re Phillips, 124 B.R. 712, 720 (Bkrtcy.W.D.Tex.1991)). Judicial estoppel most clearly applies where a party attempts to contradict its own sworn statements made in prior litigation. General Agents Ins. Co. of Am. v. Home Ins. Co. of Ill., 21 S.W.3d 419, 427 (Tex.App.-San Antonio 2000, pet. dism’d by agmt.).

In spite of his claims on appeal, Burns failed to object to the admission of exhibit C, the evidence on which his judicial estoppel complaint is based, at trial. Although his attorney objected to the admission of the evidence as to its calculation and totaling of interest, the exhibit was specifically admitted without objection for the purpose of establishing what Anglin believed to be “child support payments received and child support payments due.” Under the rules of appellate procedure, in order to preserve error for appellate review, an appellant must make a timely objection, state the grounds for the objection, and secure a ruling on the record from the trial court. Tex.R.App. P. 33.1. Burns failed to do so. Even if we assume that his objection as to the interest calculations was sufficient to preserve error under the appellate rules, grounds for evi-dentiary objections given at the trial level may not be enlarged on appeal to include grounds not asserted. Bohanan v. Hans, 26 Tex. 445, 452 (1863); Motor 9, Inc. v. World Tire Corp., 651 S.W.2d 296, (Tex.App.-Amarillo 1983, writ ref'd n.r.e.). Because Burns did not object to the admission of Exhibit C as a whole or raise the issue of judicial estoppel at trial, he has waived this issue on appeal. We overrule Burns’s third issue.

Possession Credit

In his fourth issue, Burns argues the trial court erred in failing to give him what he terms as “full credit” for the support he provided during the ten months his son allegedly lived with him. Specifically, he contends the evidence was insufficient to support the trial court’s grant of $200 a month as opposed to his requested $700 a month credit. The Texas Family Code provides that an obligor may plead as an affirmative defense to a motion for enforcement of child support that the obli-gee voluntarily relinquished to the obligor actual possession and control of a child. Tex. Fam.Code Ann. § 157.008(a)(Vemon 2002). In addition, any obligor who has provided actual support to the child during a time subject to an affirmative defense may request reimbursement for that support as a counterclaim or offset against the claim of the obligee. Id. at 157.008(d). To receive a credit against an arrearage based on the defense of voluntary relinquishment, the obligor must provide the court with some evidence of his expenditures on the child. Curtis, 11 S.W.3d at 472.

In the case at hand, Anglin argued that her teenage son lived with Burns for a time period of one month to five months while Burns contended that the boy lived with him for ten months. In addition, Burns presented the court with testimony regarding some of the expenditures resulting from his son living with him, including a horse, a truck, and rodeo entry fees. He also stated that he spent in excess of his monthly $700 child support payment in caring for his son. He did not, however, testify as to a specific amount or produce evidence showing the amount spent. In addition, there was no testimony regarding whether the child’s living with Burns was voluntarily agreed to by Anglin. At the close of the testimony, the trial court found that the couple’s son had resided with Burns for ten months and granted him a credit of $200 a month instead of his requested monthly credit of $700.

Because there is no evidence in the record regarding the amounts that Burns actually spent in support of the child during the period of claimed possession, the evidence is insufficient to show that he was entitled to a $700 a month credit for the time his son lived with him. The trial court did not err in granting Burns $200 of credit for each month he was in possession of the child. We overrule his fourth issue.

Anglin’s Attorney’s Fees

In his fifth, sixth, and seventh issues, Burns challenges the trial court’s award of attorney’s fees to Anglin. In issue five, Burns claims the evidence presented at trial was insufficient to support the court’s award. The decision to grant or deny an award of attorney’s fees and costs is within the sound discretion of the trial court. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); Knighton v. International Business Machines Corp., 856 S.W.2d 206, 210 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The award will be upheld unless we find the trial court’s actions to have been arbitrary and unreasonable. Oake, 692 S.W.2d at 455.

The prevailing party in a suit may recover costs from the opposing party under the Texas Rules of Civil Procedure. Tex.R. Civ. P. 131. A party seeking attorney’s fees must establish a contractual or statutory ground for the award. Henry v. Insurance Co. of N. Am., 879 S.W.2d 366, 368 (Tex.App.-Houston [14th Dist.] 1994, no writ); State v. Estate of Brown, 802 S.W.2d 898, 901 (Tex.App.-San Antonio 1991, no writ). Under the Family Code, the trial court has broad discretion in awarding attorney’s fees and costs, particularly in matters pertaining to the parent-child relationship. Tex. Fam.Code Ann. § 106.002 (Vernon 2002); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996). In a child support case, if the trial court finds the respondent has failed to make child support payments, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to arrearages. Tex. Fam.Code Ann. § 157.167 (Vernon 2002). The court may waive the requirement that the respondent pay these costs if it states the reasons supporting its finding. Id. If no such finding is made, then attorney’s fees and costs must be imposed on the respondent. Gross v. Gross, 808 S.W.2d 215, 222 (Tex.App.-Houston [14th Dist.] 1991, no writ).

Any award of attorney’s fees must be supported by evidence. Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex.App.-Waco 1995, writ denied). To support an award of reasonable costs, testimony should be presented regarding the number of hours spent on the case, the nature of the preparation, the complexity of the case, the experience of the attorney, and the prevailing hourly rates. Goudeau v. Marquez, 830 S.W.2d 681, 683 (TexApp.-Houston [1st Dist.] 1992, no writ). At trial, Anglin presented the testimony of Karen Marvel, an attorney with the firm that represented Anglin in this matter. Marvel testified as to her experience in matters relating to child support, the amount charged by the firm for her time, as well as the time of her co-counsel, and the amount of time spent in preparation and trial of the case. She also briefly described the type work done on the case and stated that the time spent was reasonable and necessary to the resolution of the case, coming to the conclusion that at least $10,800 had been expended during the course of the litigation. Based on this testimony and the accompanying exhibit, we hold the evidence is sufficient to support the court’s finding for attorney’s fees and costs. Thus, we overrule Burns’s fifth issue.

In issue six, Burns challenges the award as being unreasonable and excessive because Anglin did not prevail on claims regarding “health insurance coverage, orthodontic bills, and the amount of alleged arrears.” Under Texas Rule of Appellate Procedure 38.1(h), an appellate brief must contain clear and concise argument for the contentions made, along with citations to appropriate authorities. Tex.R.App. P. 38.1(h). Burns’s brief does not contain any authority in support of his argument regarding unreasonable and excessive attorney’s fees for the above claims. Therefore, we overrule Burns’s sixth issue.

In his seventh issue, Burns contends the trial court erred in awarding Anglin attorney’s fees for time expended on motions and hearings, which he claims was “specifically” denied during a pre-trial hearing. Although the trial court initially denied any award of attorney’s fees at the time of the pre-trial hearings, no all-encompassing ruling was made regarding a later award of cumulative attorney’s fees. As stated above, the decision to grant or deny attorney’s fees and costs is well within the trial court’s discretion. Oake, 692 S.W.2d at 455. Absent an abuse of discretion, we will affirm the trial court’s decision. Id. We overrule Burns’s seventh issue.

Burns’s Attorney’s Fees

In his eighth and final issue, Burns argues the trial court erred in concluding that he was not entitled to attorney’s fees as a matter of law. Burns contends that he should have been awarded attorney’s fees for his defense against Anglin’s “unfounded medical and dental insurance claims” under Texas Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code sections 9.011 and 9.012. Although Burns complains of the court’s failure to award attorney’s fees, his issue appears to actually be contesting the trial court’s failure to find Anglin’s claims frivolous and to impose sanctions on her. Burns’s brief asserts there was no basis in law or fact for Anglin’s claims regarding the arrearage, the medical expenses, and the dental expenses and that the evidence is “uncontroverted” that he “always” provided medical and dental insurance for his children.

We review a trial court’s award or denial of sanctions under an abuse of discretion standard. Herring v. Welborn, 27 S.W.3d 132, 143 (Tex.App.San Antonio 2000, pet. denied). We may find a trial court to have abused its discretion only when the court has acted arbitrarily and unreasonably, without reference to guiding rules or principles or has misapplied the law to the established facts of the ease. Downer v. Aquamarine Operators,, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In deciding whether the denial of sanctions constitutes an abuse of discretion, we examine the entire record, including the findings of fact and conclusions of law, reviewing the conflicting evidence in the light most favorable to the trial court’s ruling and drawing all reasonable inferences in favor of the court’s judgment. Herring, 27 S.W.3d at 143; McCain v. NME Hosps., Inc., 856 S.W.2d 751, 756 (Tex.App.-Dallas 1993, no writ).

Under the Texas Civil Practice and Remedies Code, the signing of a pleading as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory’s best knowledge, information, and belief, formed after a reasonable inquiry, the pleading is not: (1) groundless and brought in bad faith; (2) groundless and brought for the purpose of harassment; or (3) groundless and interposed for any improper purpose. Tex. Crv. PRAC. & Rem.Code Ann. § 9.011(Vernon 2002); Tex.R. Civ. P. 13. The Texas Rules of Civil Procedure define “groundless” as having no basis in law or fact and not warranted by good faith argument. Tex.R. Civ. P. 13. The Code also provides that the trial court may, at the trial or at any hearing inquiring into the facts and law of the action, determine if a pleading has been signed in violation of any one of the standards prescribed by section 9.011. Tex. Crv. PRác. & Rem.Code Ann. § 9.012 (Vernon 2002).

In his response to Anglin’s second amended motion for cumulative judgment of child support arrears, Burns asks the trial court to award attorney’s fees to him through the imposition of sanctions on his ex-wife and her attorneys for submitting “misleading and inaccurate statements,” claiming the motion was filed in bad faith and solely for harassment. His request was therefore predicated on the court finding Anglin’s claims frivolous. The trial court failed to find Anglin’s claims to be frivolous or unfounded in its findings of fact and conclusions of law; in fact, the court failed to address the claims’ frivolity at all, instead simply stating that Burns was “not entitled to attorney’s fees as a matter of law for his failure to pay child support as ordered.... ”

At trial, Anglin introduced evidence, as described above, regarding the amount of arrears she believed to be owed her by Burns. She also introduced evidence showing that, under the terms of the divorce decree, Burns was responsible for providing medical and dental insurance for his children. Anglin argued that Burns had been remiss in failing to provide dental insurance for his children, lumping dental expenses under the general medical category and introducing evidence of orthodontic bills she had to pay and a copy of an insurance policy which failed to provide dental coverage to Burns and his family, including the couple’s two children. The trial court ultimately found the evidence to be unpersuasive and denied Anglin’s request for enforcement of orthodontic bills, at the same time denying Burns’s request for attorney’s fees.

Because Anglin introduced evidence supporting her claims for medical and dental expenses at trial, the trial court did not abuse its discretion in failing to impose sanctions for a groundless pleading. We overrule Burns’s final issue.

      . This amount was increased to $700 a month in December of 1987.

      . Burns did, however, object to the chart’s calculation of interest. The court sustained his objection, but only as to the interest as calculated by the County’s chart. The exhibit was admitted as a summary of Anglin’s testimony as to what she believed were the due dates, amounts due, payment dates, payments made, and total arrears.

      . Although the court gave Bums credit for six of the checks he attached to his motion for new trial, it found that three other checks had already been credited to the total amount of paid child support.

      . Although Anglin asks this court to consider the lack of evidence of an exact amount and eliminate any possession credit granted to Bums, she has failed to file a notice of counter appeal. As such, she presents nothing for appellate review.

      . Marvel testified that the firm had accumulated $10,800 in attorney's fees as of the date of trial. That number, however, did not include an additional 6.5 hours in trial or an additional 3.5 hours spent in preparation for the continuation of trial. According to exhibit D-l, the additional hourly fees brought Anglin’s total attorney’s fees to $13,550.

      . Burn's answer to Anglin’s motion asks the court to impose sanctions for a frivolous action without citing authority for his request.


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    The STATE of Texas, State, v. Patrick Wayne VERHOEYEN, Appellee.
    No. 2-03-234-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 7, 2004.
    Rehearing Overruled Nov. 4, 2004.

      Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of Appellate Section, Steven Jumes, Asst. Crim. Dist. Atty., Fort Worth, for State.
    Law Office of William H. ‘Bill’ Ray, P.C., William H. ‘Bill’ Ray, Fort Worth, for Ap-pellee.
    Panel A: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I.INTRODUCTION

In a single point, the State of Texas challenges the trial court’s grant of appel-lee Patrick Wayne Verhoeven’s (‘Verhoe-ven”) motion to quash the jurisdictional enhancement count of his felony driving while intoxicated (“DWI”) indictment. The State complains that the trial court erred in granting the motion based on the finding that Verhoeven’s 1984 DWI conviction did not qualify for enhancement use under section 49.09. Tex. Penal Code Ann. § 49.09 (Vernon Supp.2004-05). We affirm.

II.Factual and Procedural Background

Verhoeven was indicted for DWI, allegedly committed on June 28, 2002 and juris-dictionally enhanced to a felony by two prior DWI convictions, dated November 30, 1984 and May 27, 1998. Verhoeven filed a motion to quash the indictment, contending that his November 30, 1984 DWI conviction could not be used for enhancement purposes because it was time-barred by an application of the “ten-year rule” pursuant to section 49.09(e). The trial court granted Verhoeven’s motion, resulting in this appeal.

III.State’s Right to Use 1984 Conviction

In its sole point, the State complains that the trial court erred in basing its decision to grant Verhoeven’s motion to quash the indictment on a finding that Verhoeven’s 1984 conviction did not qualify for use in the enhancement paragraph of the indictment. The State contends that the DWI enhancement statute does not prohibit the State from using Verhoeven’s 1984 conviction.

DWI is normally a misdemeanor offense. Tex. Penal Code Ann. § 49.04 (Vernon 2003). However, when the driver has two prior DWI convictions the offense may be jurisdictionally “enhanced” to a felony. Id. § 49.09(b). A prior conviction cannot be used for enhancement if it satisfies certain statutory requirements found in section 49.09(e). The State argues that Verhoeven’s 1984 conviction is properly included in the enhancement count of Ver-hoeven’s indictment because the prior conviction fails to meet one of the conjunctive requirements of that section. Specifically, the statute provides that a prior conviction cannot be used for enhancement if it is (1) a final conviction under section 49.09(d), and (2) a remote prior conviction, which is a conviction (a) more than ten years old and (b) separated by ten years from any other DWI conviction. Id. § 49.09(e). As the remoteness requirement is not an issue raised by the State, we examine the first of the conjunctive requirements regarding a final conviction. Section 49.09(d) provides that a final conviction is “a conviction for an offense under [Chapter 49 of the Penal Code] that occurs on or after September 1, 1994 ... whether the sentence for the conviction is imposed or probated.” Id. § 49.09(d). The State avers that, under a literal reading of the statute, Verhoeven’s 1984 conviction is not final because it was neither charged under Chapter 49, which became effective September 1, 1994, nor did it occur on or after that date. Therefore, it cannot be excluded from the enhancement count of his indictment because it is not “final.”

A. STANDARD OF REVIEW

When interpreting a statute, we attempt to effect the intent of the legislature. Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)). This requires interpreting an unambiguous statute literally, unless doing so would lead to an absurd result. Id. If a literal reading of the statute leads to an absurd result, we resort to the use of extratextual factors to determine legislative intent. Id. For example, if a statute may be interpreted reasonably in two different ways, a court may consider the consequences of differing interpretations in deciding which interpretation to adopt. Muniz v. State, 851 S.W.2d 238, 244 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993). If one interpretation yields absurd results while the other interpretation yields no such absurdities, the latter interpretation is preferred. Id.

B. Application of Statute’s Literal Language

“The starting point in analyzing the meaning of a statute is the language of the statute itself.” Ex parte Evans, 964 S.W.2d 643, 646 (Tex.Crim.App.1998). Section 49.09(e)(1) indicates that a conviction may not be used for enhancement if “the conviction was a final conviction under Subsection (d).” Subsection (d) provides, “For the purposes of this section, a conviction for an offense under Section 49.04 [i.e., a DWI offense] ... that occurs on or after September 1, 1994 is a final conviction, whether the sentence for the conviction is imposed or probated.” Tex. Penal Code Ann. § 49.09(d). Chapter 49 of the Penal Code became effective on September 1. 1994. Prior to that date, DWI convictions were charged under article 6701Z-1, including Verhoeven’s 1984 conviction. Applying the literal language of subsections (d) and (e)(1), the State concludes that Yerhoeven’s 1984 conviction charged under article 67011-1 is not final and, therefore, its use for enhancement is not precluded.

However, at least two difficulties arise when the State’s interpretation of subsection (d) is considered together with the ten-year rule’s application to the issue of remoteness found in subsections (e)(2) and (3). See supra footnote 1. First, under the State’s interpretation, these provisions create a ten-year period during which it is impossible for any prior conviction to satisfy the requirements for exclusion. That is, prior to September 1, 2004, there could be no remote final convictions because section 49.04 was not effective until September 1, 1994, so there could be no instance of a DWI offense being committed ten years after a prior section 49.04 conviction until September 1, 2004. During this period, the exclusionary rule of subsection (e) is rendered wholly ineffective. This literal interpretation is problematic because it is illogical and improper to presume that the legislature intended part of the statute to be ineffective for ten years. See Tex. Gov’t Code Ann. § 311.021(2) (Vernon 1998); Flowers v. State, 815 S.W.2d 724, 728-29 (Tex.Crim.App.1991). Generally, courts are to presume that every word in a statute has been used for a purpose and each word, phrase, clause, and sentence should be given effect if reasonably possible. State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997).

The second difficulty with the State’s interpretation is that, for offenses committed after September 1, 2004, the provisions have the disparate effect of punishing offenders with ancient remote prior convictions more harshly than offenders with recent remote prior convictions. For example, in 2008, a DWI offender with 1995 and 2006 convictions would be charged with misdemeanor DWI (because the 1995 conviction is both final and too remote under the ten-year rule), while someone with prior DWI convictions from the 1930s and 1950s would be charged with a third degree felony (because the convictions are not “final” and both finality and remoteness are required).

The use of convictions more than ten years old does not, in and of itself, constitute an absurd result. It is, however, absurd to treat some offenders with remote prior convictions differently than others, particularly where ancient prior convictions are used for enhancement and recent remote prior convictions are not. The Texas Court of Criminal Appeals has reasoned that disparate treatment of offenders under an enhancement statute can lead to an absurd result. See Griffith, 116 S.W.3d at 785. In Griffith, the State sought to use the defendant’s prior conviction to enhance punishment under section 12.41(c)(2) of the Penal Code, the punishment provisions for repeat sexual offenders. Tex. Penal Code Ann. § 12.42(c)(2) (Vernon Supp.2004-05). The defendant’s prior offenses were committed in Texas and charged under predecessor statutes not enumerated in the current statute. The court recognized that the current statute’s literal language would lead to disparate treatment of repeat sex offenders in that prior out-of-state convictions for substantially similar offenses could be used for enhancement while convictions for substantially similar offenses committed under prior Texas law could not. Griffith, 116 S.W.3d at 785. Concluding that disparate treatment of sex offenders was an absurd result that the legislature could not have intended, the court held that prior convictions for substantially similar offenses could be used for enhancement regardless of whether they were committed out-of-state or in Texas. See id. at 786. A disparate treatment consequence akin to that found in Griffith exists under the State’s interpretation of subsection (d) of section 49.09. DWI offenders with remote prior convictions that occurred post-1994 would be free from jurisdictional enhancement, while offenders with ancient prior convictions would not. This is an absurd result that the legislature could not possibly have intended.

Because a literal application of subsection (d) rendered subsection (e)(1) superfluous until September 2004 and also results in disparate treatment of offenders with prior convictions, we conclude that a literal application of subsection (d) leads to absurd consequences. Where application of a statute’s plain language would lead to absurd consequences that the legislature could not possibly have intended, the language should not be applied literally. Boykin, 818 S.W.2d at 785. This is a narrow exception to the plain meaning rule and does not intrude on the lawmaking powers of the legislative branch but rather demonstrates respect for that branch, which we assume would not act in an absurd way. See id.

Where the plain language of a statute leads to absurd results, it is constitutionally permissible for a court to consider ex-tratextual factors in arriving at a sensible interpretation of the statute. Id. In that regard, we first note that the Texas Court of Criminal Appeals has examined the implications of subsection (d) in the larger context of section 49.09. See Ex parte Serrato, 3 S.W.3d 41, 42 (Tex.Crim.App.1999). In Serrato, the question was whether the legislature intended to allow the State’s use of probated DWI convictions which occurred before the enactment of section 49.09 for the purpose of enhancement under the newer provision. Id. The court answered in the affirmative, holding that the statute clearly resolved the issue. Id. at 42-43. The court did not reason that convictions under prior law could be used because they were not excluded by subsection (e), as is the State’s argument here. Rather, the court found that the new provisions expressly incorporate prior law. Id. at 43.

[The] Applicant was convicted of driving while intoxicated.... The relevant penalty enhancement provision provides: “If it is shown on the trial of an offense under Section 49.04 ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated ... the offense is a felony of the third degree.” Article 49.09(c) specifically defines the term “offense relating to the operating of a motor vehicle” to include “an offense under Article] 67011-1 Revised Statutes, as that law existed before September 1, 199k." And the former DWI law to which the statute refers stated: “For purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.”

Id. at 42-43 (citations omitted).

The Texas Court of Criminal Appeals concluded that the legislature had a “specific intent to keep the law the same as its previous incarnation” and noted that subsection (d) was enacted to state that probated convictions under the new statute are, like probated convictions under the old statute, considered final convictions. Serrato, 3 S.W.3d at 43.[B]y incorporating the prior DWI statute, as that law existed before enactment of the new statute, the legislature declared its intent to continue the status quo, which included permitting probated DWI convictions for enhancement if the offense occurred after January 1,1984. Id.

The principle underlying Serrato is that convictions that were final under prior law are also final under the new provisions. Applied to the facts of Serrato, the result was that the State was permitted to use the defendant’s 1990 and 1993 convictions. Id. Recently, the Tyler Court of Appeals relied on Serrato in a case where the defendant’s prior conviction was barred by an application of the current ten-year rule. Getts, 2003 WL 22456104, at *2, at --. The court concluded that a 1984 conviction is a final conviction and, when it is also barred by an application of the ten-year rule, it cannot be used by the State for enhancement purposes. Id. at *3, at-.

Without citing Serrato, the Amarillo Court of Appeals recently applied prior article 6701/-l(h) to determine whether a 1984 conviction was final. Nixon v. State, No. 07-03-0072-CR, 2004 WL 757970, 153 S.W.3d 550, at 552 (Tex.App.-Amarillo Apr.8, 2004, pet. refd). There, the appellant was indicted in January 2002 for DWI. Prior DWI convictions occurred in 1995 and January 1984. The 1984 conviction was based on an offense committed in September 1983, charged under article 6701Z-1, and probated. The court summarily applied article 6701Z-l(h), the law in effect at the time of the offense. Subsection (h) reads, “[A] conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” The court employed rules of construction to conclude that, for a probated offense to be final, the offense itself must occur on or after January 1, 1984. Id at 552-53.

The Dallas and Eastland Courts of Appeals have also found that convictions are final so long as they occurred on or after January 1, 1984 and a sentence was imposed or probated. See Williamson v. State, 46 S.W.3d 463, 466-67 (Tex.App.Dallas 2001, no pet.); Rizo v. State, 963 5.W.2d 137, 139 (Tex.App.-Eastland 1998, no pet.).

Under the rationale of Serrato and its progeny, Verhoeven’s 1984 conviction is a final conviction because section 49.09 incorporates article 6701Z-1, the DWI law prior to September 1, 1994, in its entirety. Under the former article, a conviction is final if the offense occurred on or after January 1, 1984. Under Nixon, the law in effect at the time of the offense controls the finality of the conviction. We are aware of no courts that have held that conviction for an offense occurring on or after January 1, 1984 where the sentence was imposed or probated is not a final conviction. Accordingly, Verhoeven’s November 30, 1984 conviction is excluded from enhancement use because it is both final and unavailable for use under the ten-year rule.

Even if the current DWI enhancement statute did not expressly incorporate the provisions of article 670U-1, we find authority under Griffith and Boykin to effect legislative intent in cases where the literal words of the statute do not. See Griffith, 116 S.W.3d at 785; Boykin, 818 S.W.2d at 785. We hold that Verhoeven’s 1984 conviction is a final conviction under section 49.09(e)(1) and satisfies each requirement for remoteness under section 49.09(e)(2) and (e)(3). Therefore, Verhoeven’s 1984 conviction cannot be used to enhance his misdemeanor DWI offense to a felony. We overrule the State’s sole point.

IV. Conclusion

Having overruled the State’s sole point on appeal, we affirm the judgment of the trial court.

      . Part (b) of this requirement is the so-called "ten-year rule.” Under the current statute, applicable to this case, the ten-year period is measured forward from the prior conviction at issue using one of four possible dates: the judgment entry date (applicable here), the community supervision discharge date, the parole completion date, or the completion date for service of a term of imprisonment or confinement. For a conviction to be remote through the use of the ten-year rule, two conditions must be met: (1) the current offense occurred after the ten-year period and (2) no intervening convictions were incurred (i.e., the offender was not convicted of additional intoxication-related offenses during the ten-year period). Thus, if ten years lapsed between any two consecutive convictions, the older of the two cannot be used for enhancement. Id. § 49.09(e)(2)-(3); Howard v. State, 137 S.W.3d 282, 287-88 (Tex.App.-Fort Worth 2004, pet. filed); Getts v. State, No. 12-03-00047-CR, 2003 WL 22456104, at *1-2, - S.W.3d -, at -(Tex.App.-Tyler October 29, 2003, pet. granted) (mem.op.); Anderson v. State, 110 S.W.3d 98, 99 (Tex.App.-Dallas 2003, no pet.).

      . Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3696.

      . Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574-77, repealed by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704.

      . Both the current and former version of the ten-year rule allow the State to use convictions ten years and older under certain conditions. This older conviction could be “revived," under the former rule, if a second DWI was committed within ten years of the primary offense. The current law allows use of a ten-year or older conviction if it is not separated by ten years from another DWI conviction. Based on this, the State asserts that the overall historical scheme demonstrates that the use of former article 6701Z-1 convictions were not subject to time limitation. Yet, in cases where revival did not apply, the former scheme provided a mechanism to prohibit use of prior article 6701Z-1 convictions based on their age, i.e., more than ten years old. The State's interpretation of the current DWI enhancement scheme would provide no mechanism for exclusion of any article 6701Z-1 prior conviction. Such an interpretation is a marked departure from the historic scheme, and the State has not demonstrated the legislature’s intent to do so. The existence of the revival doctrine, under the former scheme, and the intervening conviction doctrine, under the current scheme, are, in fact, not evidence of a legislative purpose to categorically exempt article 6701Z-1 convictions from time limitation. Rather, these doctrines appear to be consistent with the legislature's desire to encourage rehabilitation by dealing sternly with recent recidivism.

      . Seratto’s offense was committed on December 2, 1994 and was enhanced by two 1993 convictions and a 1991 conviction. Id. Unlike the present case, State use of his prior convictions was not barred by an application of the ten-year rale.
      Seratto’s prior convictions were subject to the pre-2000 ten-year rule. Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.10, 1993 Tex. Gen. Laws 3586, 3696, repealed by Act of May 30, 1999, 76th Leg., R.S., ch. 1364, § 12 sec. 49.09(d), 1999 Tex. Gen. Laws 4606, 4610 (effective January 1, 2000). While the current ten-year rule is forward-looking from a prior conviction, the pre-2000 rule was backward-looking from the instant offense. So long as one prior conviction occurred within the ten-year period antecedent to the current offense, the second prior offense could be a remote prior conviction revived for enhancement use. Howard, 137 S.W.3d at 287; Getts, 2003 WL 22456104, at *2, at -; Anderson, 110 S.W.3d at 99.

      . Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, art. 6701l-1(h), 1983 Tex. Gen. Laws 1568, 1576, repealed by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704.


author: JIM R. WRIGHT, Justice.

text:
    Brian CARLSON, Appellant, v. STATE of Texas, Appellee.
    No. 11-03-00001-CR.
    Court of Appeals of Texas, Eastland.
    Oct. 14, 2004.

      G. Lee Haney, Brownwood, for appellant.
    Micheál Murray, Dist. Atty., Brown-wood, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

After the juvenile court waived jurisdiction and transferred this case to district court, Brian Carlson pleaded guilty to the offense of aggravated assault with a deadly weapon. The district court convicted appellant and assessed his punishment at confinement for three years. We reverse and remand.

In both issues on appeal, appellant challenges the juvenile court’s jurisdiction to transfer appellant to district court to be tried as an adult. In the first issue, appellant contends that his parent did not receive adequate service of the summons to appear at the transfer hearing. In the second issue, appellant argues that the proof at the transfer hearing was not sufficient with respect to appellant’s age.

Juvenile proceedings were initiated against the 15-year-old appellant for beating the victim with a metal rod in May 2002. On July 9, 2002, the State filed a petition for discretionary transfer of appellant’s case to district court pursuant to TEX. FAM. CODE ANN. § 54.02 (Vernon 2002). The hearing was set for July 16 at 10:00 a.m. Appellant was duly summoned and served with a copy of the petition on July 9. On July 10, the summons to be served upon appellant’s father was mailed to the Craven County Sheriffs Office in North Carolina. However, the Craven County Sheriffs Office did not receive the summons until July 16, too late to timely serve it upon appellant’s father. The transfer hearing commenced on July 16, but was recessed pending service upon appellant’s father. The hearing resumed on July 18, 2002, at 11:15 a.m. In the meantime, appellant’s father had been served in North Carolina on July 17 at 4:09 p.m. The summons that was served upon appellant’s father on the 17th was the original summons indicating that the hearing was to be held on the 16th.

Neither appellant’s father nor mother attended the hearing. Service of a summons upon appellant’s mother was not attempted. The record indicates that she was suffering from severe mental problems and was in the Big Spring State Hospital at the time of the hearing. Appellant’s attorney was appointed to serve as appellant’s guardian ad litem for the purpose of the transfer hearing. At the conclusion of the transfer hearing, the county court, sitting as a juvenile court, waived jurisdiction and transferred appellant to the appropriate criminal court to be tried as an adult.

Section 54.02(b) provides that the “petition and notice requirements” of TEX. FAM. CODE ANN. §§ 53.04, 53.05, 53.06, & 53.07 (Vernon 2002) “must be satisfied.” Section 53.06(a)(2) provides that the juvenile court “shall direct issuance of a summons” to the child’s parent, guardian, or custodian. Service upon either parent is sufficient to satisfy this mandate. In the Matter of Edwards, 644 S.W.2d 815, 818 (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.). Although service upon a parent is a “waivable right” pursuant to the waiver provisions in Section 53.06(e), no such waiver occurred in this case. Neither of appellant’s parents attended the hearing or waived service of the summons in writing. Since the right to service of the summons was not waived, service upon a parent was mandatory.

The service that was eventually had upon appellant’s father was not effective. With respect to service upon a nonresident, Section 53.07(a) provides as follows:

If a person to be served with a summons ... is outside this state but he can be found or his address is known, or his whereabouts or address can with reasonable diligence be ascertained, service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered or certified mail, return receipt requested, at least five days before the day of the hearing.

Appellant’s father was not served five days prior to the transfer hearing. In fact, he was served one day after the date upon which the summons indicated the hearing was to be held.

Previous cases addressing the lack of service of a summons upon the child or a parent have held that the issue is jurisdictional. Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978); Ex parte Burkhart, 94 Tex.Crim. 583, 253 S.W. 259 (1923). Consequently, we must conclude that, because appellant’s parent was not duly served with the summons in this case, the juvenile court was without jurisdiction to transfer appellant to district court. Furthermore, because the juvenile court lacked jurisdiction to enter a valid transfer and certification of appellant, the district court lacked jurisdiction to try appellant for the offense. TEX. PENAL CODE ANN. § 8.07 (Vernon Supp.2004-2005); Grayless v. State, supra at 220.

The State argues that, because appellant’s father was not a resident of Texas, his attendance at the transfer hearing was excused. We do not dispute such an assertion. TEX. FAM. CODE ANN. § 51.115 (Vernon 2002) provides an exception to the mandatory attendance at a transfer hearing of a parent if that parent is not a resident of this state. However, Section 51.115 deals with attendance, not service. Section 51.115 does not excuse the State’s failure to serve a summons in compliance with the mandate of Section 54.02(b) and the sections referred to therein.

Having found error, we must determine whether the error is reversible. Even jurisdictional errors may be subject to a harmless error analysis. Mendez v. State, 138 S.W.3d 334, 339-40 (Tex.Cr.App.2004)(Exeept for certain federal constitutional errors labeled as “structural,” no error — including an error relating to jurisdiction, voluntariness of the plea, or any other mandatory requirement — is categorically immune to a harmless error analysis). The court in Mendez recognized that some errors defy analysis and that “some kinds of errors (particularly jurisdictional ones) will never be harmless.” Id. at 340. We cannot find that the error in this case did not affect appellant’s substantial rights. Therefore, the error was not harmless under TEX.R.APP.P. 44.2(b). Appellant’s first issue is sustained. Accordingly, we need not address the second issue. TEX.R.APP.P. 47.1.

Both the order of the Brown County Court (sitting as a juvenile court) waiving jurisdiction and transferring appellant to district court and the judgment of the district court convicting appellant of the offense of aggravated assault are void. Consequently, the judgment of conviction is reversed, and the cause is remanded to the Brown County Court for further proceedings.

      . We note that a direct appeal from the transfer or certification order is no longer available under TEX. FAM. CODE ANN. § 56.01 (Vernon 2002). See Small v. State, 23 S.W.3d 549 (Tex.App.-Houston [1st Dist.] 2000, pet’n ref'd). Thus, issues relating to the transfer proceeding are properly raised in an appeal from a conviction after transfer.

      . See Mendez v. State, 138 S.W.3d 334, 340-342 (Tex.Cr.App.2004).


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    Michael Dewayne POWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-02-00358-CR.
    Court of Appeals of Texas, Waco.
    Oct. 20, 2004.
    Rehearing Overruled Nov. 16, 2004.

      N. Grant Kinsey, Susan N. Kelly Johnston, Law Office of Johnston & Johnston, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Christy Barber, Hilary La-Borde, McLennan County Asst. Dist. At-tys, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Michael Powell of evading arrest in a vehicle, elevated by a prior evading arrest conviction to the level of a third degree felony. Powell pleaded “true” to an enhancement allegation, and the jury assessed his punishment at twenty years’ imprisonment. Powell contends in five issues that the court erred by: (1) admitting evidence that he was on parole at the time of the offense; (2) admitting evidence that a handgun was found near the car he was allegedly driving; (3) admitting in evidence a statement from an unidentified person overheard on a cellular phone found in the car; (4) failing to charge the jury on a lesser-included offense; and (5) charging the jury that the offense was a third degree felony rather than a state jail felony. Because the probative value of the evidence regarding Powell’s parole status and the handgun is substantially outweighed by the danger of unfair prejudice, we will reverse and remand.

BACKGROUND

Officer Charles Spann was directing traffic at a busy neighborhood intersection on the night in question. A car approached without its headlights on. Spann asked the driver, whom Spann identified as Powell, for his license and proof of insurance. The driver indicated that he had none and put the car in gear. Spann warned him that fleeing in a vehicle would be a felony offense. The car drove away, and Spann ran to his patrol car to pursue it.

The car turned a corner and stopped about 250 feet from the intersection. The occupants fled the area. Spann found Powell’s DPS identification card in the driver’s side of the car and found a handgun lying on the ground near the driver’s side. A detective later obtained an arrest warrant for Powell, and this prosecution ensued.

ALTHOUGH RELEVANT, THE PROBATIVE VALUE OF THE EVIDENCE REGARDING POWELL’S PAROLE STATUS AND THE HANDGUN IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE

Powell contends in his first and second issues respectively that the court abused its discretion by permitting the State to introduce evidence that he was on parole at the time of the offense alleged and that the handgun was found near the ear. Specifically, he contends that this evidence is not relevant under Rule 404(b) or, if it is, that its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403. The State responds that the evidence is relevant to the issue of motive and that its probative value is not substantially outweighed by the danger of unfair prejudice.

Evidence of motive is always relevant and admissible to prove that a defendant committed the offense alleged. Crane v. State, 786 S.W.2d 338, 349-50 (Tex.Crim.App.1990); Garcia v. State, 150 S.W.3d 598, 612 (Tex.App.-San Antonio 2004, no pet. h.); Keen v. State, 85 S.W.3d 405, 413-14 (Tex.App.-Tyler 2002, pet. ref'd). Evidence of extraneous conduct may be offered to prove motive under Rule 404(b) if the evidence tends to raise an inference that the defendant had a motive to commit the offense. Crane, 786 S.W.2d at 350; Garcia, 150 S.W.3d at 612; Smith v. State, 959 S.W.2d 1, 17 (Tex.App.-Waco 1997, pet. ref'd); see also Tex.R. Evid. 404(b). Stated another way, such evidence is admissible under Rule 404(b) if “it tends to establish some evidentiary fact, such as motive ..., leading inferentially to an elemental fact [such as identity or intent].” Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001) (quoting Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App.1991)).

Even if admissible under Rule 404(b) however, evidence of extraneous conduct will be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403; Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.2003).

This Court must give appropriate deference to the trial court’s determination that the probative value of the evidence in question is not substantially outweighed by the danger of unfair prejudice. Moses, 105 S.W.3d at 627.

The appellate court should not conduct a de novo review of the record with a view to making a wholly independent judgment whether the probative value of evidence of “other crimes, wrongs, or acts” is substantially outweighed by the danger of unfair prejudice. It should reverse the judgment of the trial court “rarely and only after a clear abuse of discretion.”

Id. (quoting Montgomery, 810 S.W.2d at 392).

The State. contends that Powell’s parole status tends to raise an inference that he had a motive to flee because he is prohibited under the rules of parole from possessing a firearm or associating with someone in possession of a firearm. Therefore, the admissibility of this evidence hinges on the State’s ability to connect the handgun to Powell or the other occupant of the car.

Officer Charles Spann found the handgun on the ground near the drivers’ side of the car. It appeared to have been only recently left there. However, Powell’s fingerprints were not found on the handgun, and Spann testified that the driver of the car was not wearing gloves. In addition, Powell presented evidence that he was not driving the car, and Spann’s own testimony contradicted the offense report he had prepared as to which side of the car Powell exited and which side Spann initially approached.

Despite these contradictions, the evidence surrounding the handgun does at a minimum tend to raise an inference that one of the occupants of the car was in possession of a handgun before they fled on foot from the officer. Thus, this evidence, when considered with Powell’s parole status, is relevant to motive.

When we consider whether the trial court abused its discretion by concluding that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice, we consider:

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

Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003).

The underlying “fact of consequence” or “elemental fact” is identity. In other words, the State offered the evidence in question to prove Powell’s motive, which is probative of the disputed “elemental fact” of identity. See Powell, 63 S.W.3d at 438.

The State’s evidence that Powell was the person in possession of the handgun is weak at best. Although not quite as tenuous, the evidence is likewise fairly weak on the issue of whether either occupant of the car abandoned the handgun as they fled on foot. Because of the low probative value of the evidence with respect to the gun, neither it nor Powell’s parole status compellingly serve to establish his identity as the person who fled from the officer.

Because of the State’s effort to tie the handgun directly to Powell, evidence relating to the handgun had the potential to influence the jury in an “irrational but nevertheless indelible way.” See Alexander v. State, 88 S.W.3d 772, 778 (Tex.App.Corpus Christi 2002, pet. ref'd).

The State did not require a significant amount of time to present the evidence in question.

As stated, the disputed fact of consequence is identity. The car was rented by Powell’s girlfriend, his identification card was in the driver’s side door, and Spann testified that Powell was the person driving the car. Thus, the State had “other probative evidence available” to establish Powell’s identity. Accordingly, the State did not have a compelling “need” to prove motive via Powell’s parole status and the handgun.

After considering the evidence in light of the factors provided, we conclude that this is one of those “rare” cases in which the record demonstrates a “clear abuse of discretion.” See Moses, 105 S.W.3d at 627. Now we consider whether this error requires reversal under Rule of Appellate Procedure 44.2(b).

Reversal is required only if the error affected Powell’s “substantial rights.” Tex.R.App. P. 44.2(b). As this Court has explained,

In applying the test for “harmless error,” our primary question is what effect the error had, or reasonably may have had, upon the jury’s decision. We must view the error, not in isolation, but in relation to the entire proceedings. An error is harmless if the reviewing court, after viewing the entire record, determines that no substantial rights of the defendant were affected because the error did not influence or had only a slight influence on the verdict. Stated another way, an error is harmless if the court is sure, after reviewing the entire record, that the error did not influence the jury or had but a very slight effect on its verdict.
The error must have affected the outcome of the lower court proceedings. That is to say, if we have “grave doubts” about whether an error did not affect the outcome, we must treat the error as if it did. “Grave doubt,” means that, “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” The uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a “substantial and injurious effect or influence in determining the jury’s verdict”).

Davis v. State, 104 S.W.Sd 177, 182-83 (Tex.App.-Waco 2003, no pet.) (quoting Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997) (citations omitted), aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999)).

Powell’s girlfriend Tiffany testified that they had been in Dallas that day and returned to Waco that evening. They went to a park where their Mends and acquaintances generally gathered. They got into an argument, and Tiffany decided to leave him there. She was so upset that she asked her sister Garika to drive the car. However, Garika did not have her driver’s license with her, so she found another friend, Marvin Edwards, and asked him to drive Tiffany’s car to her house, about two blocks away. Tiffany explained that Powell’s identification card had been left in the car when they returned to Waco from Dallas.

Tiffany’s sister Garika and another Mend testified to essentially the same facts as Tiffany, except that they did not offer an explanation for Powell’s identification card being in the car. Garika explained that Marvin Edwards was a classmate from Waco High School, but she was not sure of his last name until she discussed it with a former classmate who now lives in Dallas.

On rebuttal, the State presented testimony from a Waco Independent School District employee that no student by the name of Marvin Edwards was enrolled at Waco High during the pertinent time period. The Waco ISD employee did not check for other last names similar to Edwards.

Powell’s counsel pointed out numerous discrepancies between Officer Spann’s report and his testimony regarding the events Spann observed on the occasion in question. Powell presented evidence that he was not driving the car on the occasion in question and an explanation for how his identification card came to be in the car. The State argued that Powell’s parole status proves his motive and thus “puts this defendant behind the wheel.” Although the State offered probative evidence of Powell’s identity, it cannot be characterized as “overwhelming.” Cf. Motilla v. State, 78 S.W.3d 352, 357-58 (Tex.Crim.App.2002) (overwhelming evidence of guilt is factor to be considered under Rule 44.2(b)).

The court abused its discretion by concluding that the probative value of the evidence regarding the handgun and Powell’s parole status was not substantially outweighed by the danger of unfair prejudice. In view of the disputed evidence regarding identity and the State’s argument, we harbor “grave doubts” about whether this error affected the verdict. See Davis, 104 S.W.3d at 182-83. Accordingly, we sustain Powell’s first and second issues.

Although our disposition of the first and second issues requires reversal, we write further to address issues likely to occur upon retrial. See Cook v. State, 940 S.W.2d 623, 627-28 (Tex.Crim.App.1996); Vrba v. State, 69 S.W.3d 713, 719 (Tex.App.-Waco 2002, no pet.).

THE CELLULAR PHONE STATEMENT WAS NOT HEARSAY BECAUSE A DETECTIVE RELIED IN PART ON IT TO OBTAIN POWELL’S ARREST WARRANT

Powell contends in his third issue that the court abused its discretion by admitting in evidence the content of a statement which Officer Spann overheard when searching the car. The State responds that the statement was not offered to prove the truth of the matter asserted but rather to show the information which a detective relied on to seek a warrant for Powell’s arrest.

As Spann searched the car, a cellular phone in the car started ringing, and Spann answered it. The caller asked, “Stevie, did Little Mike get away, or did the police get him?” Powell made a hearsay objection to Spann’s testimony about this statement, which the court overruled. The State also presented evidence from three detectives that “Little Mike” was a nickname of Powell’s, according to department records. The assigned detective testified that he relied on this information (together with Spann’s identification of Powell and the presence of Powell’s identification card in the car) to obtain the arrest warrant.

Out-of-court statements offered to show why the defendant became the subject of the investigation are not hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App.1995); Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. refd). Because the detective testified that he relied in part on this statement as a basis for the arrest warrant, the court did not abuse its discretion by overruling Powell’s hearsay objection. Accordingly, we overrule Powell’s third issue.

POWELL’S ISSUE ABOUT A LESSER-INCLUDED OFFENSE WILL NOT BE ADDRESSED BECAUSE THIS COURT DOES NOT KNOW WHAT EVIDENCE WILL BE PRESENTED ON RETRIAL

Powell contends in his fourth issue that the court erred by failing to charge the jury on the lesser-included offense of misdemeanor evading arrest (ie., evading on foot). However, because we cannot say whether the evidence on retrial will justify submission of a lesser-included offense, we will not address this issue. See Henley v. State, 98 S.W.3d 732, 737 (Tex.App.-Waco 2003, pet. ref'd).

THE DATE OF POWELL’S PRIOR CONVICTION FOR EVADING ARREST IS NOT AN ELEMENT OF THE THIRD DEGREE FELONY OFFENSE OF EVADING ARREST

Powell contends in his fifth issue that the trial court should have charged the jury on evading arrest as a state jail felony rather than as a third degree felony because his prior conviction occurred before the Legislature amended the evading arrest statute to create the third degree offense.

However, the Court of Criminal Appeals has rejected this contention under similar circumstances involving a different statute. See State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App.1998) (construing section 46.04). As the Court explained, the date of the prior conviction is not an element of the subsequent offense. Id.; accord Manning v. State, 112 S.W.3d 740, 743 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (construing section 22.01(b)(2)). Accordingly, we overrule Powell’s fourth issue.

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

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

I agree with neither the determination of error nor the Court’s resulting harm analysis. In many cases, events occur that members on this Court would have han-died differently. We should be very careful to not allow what we would have done, as the trial attorney or the trial court, color our decision on appeal. When a trial court makes a discretionary ruling, the courts of appeals have been repeatedly directed by the higher court that we do not substitute our judgment for that of the trial court. See Salazar v. State, 38 S.W.3d 141 (Tex.Crim.App.2001); Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990)(op. on reh’g). Again, in yet another case, I believe that is all that we are doing.

The Court seems to accept that identity was the primary disputed issue. The Court seems to accept that evidence of motive was relevant to show why the defendant is the one who committed the crime — identity. The Court seems to accept that possession of a firearm by a convicted felon while on probation would be a motive for the convicted felon to evade arrest. Of course, the State needed to prove the identity of the person who was evading arrest. The trial court conducted the 403 balancing test and decided in favor of admitting the evidence. But this Court wants to handcuff the State and keep them from presenting this evidence— evidence relevant to prove identity.

This Court, as a reviewing court, is supposed to review the trial court’s decision. This Court, as a reviewing court, is not supposed to conduct its own determination of the balancing test. I think a careful review of this Court’s opinion reveals that is exactly what the Court has done, made its own determination rather than review the trial court’s decision. This is most evident when, as here, the Court expressly uses only the trial court’s balancing factors to decide whether the trial court abused its discretion instead of using the appropriate “relevant criteria” to review the trial court’s decision. See Graff v. State, 65 S.W.3d 730, 739-740 (Tex.App.-Waco 2001, pet. ref'd).

And then there is the harm analysis. Would there be a different result had the Court considered certain factors when assessing harm in a Rule 403 error? See Id. at 741. Is this why they were not used?

We have done this before. See Thrift v. State, 134 S.W.3d 475 (Tex.App.-Waco 2004, no pet.); Williams v. State, 27 S.W.3d 599 (Tex.App.-Waco 2000, pet. refd). Until we get “guidance,” I suspect we will continue the trend to throw out convictions when we, if we had been the trial court, would not have allowed the evidence to be admitted.

Finding no error in admitting the evidence, I respectfully dissent.

      . The State does not provide an independent rationale for the admission of testimony about the handgun. Rather, the State discusses the admission of this testimony collectively with evidence of Powell’s parole status as relevant to motive.

      . Conversely, it is not disputed that Powell was on parole at the time of the offense.

      . The internal quotations are from the decision of the United States Supreme Court in O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995).

      . The Dallas Court of Appeals has applied the reasoning of Mason to the evading arrest statute in an unpublished opinion. See Loveland v. State, No. 05-99-1761-CR, 2000 WL 1690193, *4-6, 2000 Tex.App. LEXIS 7692, at *11-14 (Tex.App.-Dallas Nov. 13, 2000, no pet.) (not designated for publication).


author: RICHARD BARAJAS, Chief Justice.

text:
    Veronica Dawn QUALLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00116-CR.
    Court of Appeals of Texas, El Paso.
    Oct. 21, 2004.

      Michelle Greene, Odessa, for appellant.
    Prank D. Brown, District Attorney, for the State.
    Before Panel No. 4 BARAJAS, C.J., LARSEN and McCLURE, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from convictions for the offenses of capital murder and injury to a child. The court assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice on the capital murder conviction and forty years imprisonment on the injury to child conviction. We reverse the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On December 26, 2001, Appellant and her codefendant, Sonny Dale Moore, entered Charlie’s Pawn Shop on the Andrews Highway in Odessa, Texas. They had a small child with them. The manager of the shop, Rhonda Dolloff, testified that the child’s eyes were blackened, and it appeared that she had a broken nose. She appeared swollen and bruised, and there was bruising between her fingers. It seemed to Dolloff that the child could not turn her head and she had difficulty raising her arm. The child had a drugged and spacey look to her face. After about forty minutes, as the three left the shop it appeared that the child’s legs would not work.

On December 28, 2001, the couple returned to the pawn shop with the child. Diana Salas, an employee, saw bruising on the child's face, hands, and side. The child’s eyes were blackened, she had bruising on her stomach, and she acted in a sluggish manner. Rhonda Dolloff was also in the store. Moore was trying to sell some firearms. Dolloff asked Appellant about the child’s injuries and Appellant stated that the child had fallen out of a window. When the three left the store, the employees called police.

Cliff Harris, the Sheriff of Pecos County, Texas, testified that on December 28, 2001, he received a call from a pawn shop owner in Odessa regarding an injured child. He sent a deputy to look for a pickup truck coming from Odessa. Deputy Jerry Kresta stated that he was told to look for a 1986 Ford pickup. He watched for the vehicle for approximately three hours.

On January 8, 2002, Adam Marquez was working the dispatch desk at the Fort Stockton Police Department. He received an emergency 911 call from Sonny Dale Moore at 10:11 p.m. Moore stated that a child had fallen out of bed and was unconscious. Mike Laurence, an EMT, heard the call and responded to the scene. Upon arrival, he found that the child had no pulse and her lips were blue.

Ilan Wilde testified that he is a physician’s assistant at Pecos County Memorial Hospital. On January 3, 2002, at 10:30 p.m., an ambulance arrived carrying a child. She was not breathing and she had no heartbeat. She had multiple bruises around her eyes, legs, and knees. Appellant and Moore told him that the child had fallen out of the bed the night before, had fallen down some stairs, and had fallen over a toy box.

Toni Proper, a respiratory therapist, was also working at the hospital when the child arrived. The child’s name was Whisper Lynn. Proper was in charge of managing the child’s airway. The witness noticed recent bruising on the child’s forehead and other bruising on her body.

Oscar Gallegos, a sheriffs deputy with the Pecos County Sheriffs Office, stated that he prepared a diagram of Appellant’s residence where the child died. He took a measurement that indicated the child’s bed was nineteen inches above a carpeted floor.

Dr. Jerry Spencer testified that he was a pathologist in Lubbock County, Texas. He performed an autopsy on a child named Whisper Lynn on January 4, 2002. He described major injuries to her head, mouth, abdomen, and arm. The head injury was the fatal injury. The injuries were both recent and older healing injuries. Her lower front teeth had been knocked out and had healed over. This injury occurred about three or four weeks before her death. Her arm was recently broken and her elbow was dislocated. The abdominal injuries were the result of blunt trauma from a fist or from a kick. It was one of the worst such cases he had ever seen.

Billy McGovern testified that he was Appellant’s and Moore’s landlord. He had become friendly with Appellant and Moore, and he lived nearby. He knew the victim and he noticed on one occasion that the child had a black eye. On another occasion, he saw the victim had a busted lip. He also observed that the child’s hair had disappeared. Upon inquiry, he was told that the child was pulling her hair out. He warned Appellant and Moore that he would inform Child Protective Services if he saw any more bruises on the child.

Tulon Murphy, a deputy sheriff with the Pecos County Sheriffs Office, testified that he took a confession from Moore wherein he admitted killing the child. Moore stated that he lost his temper when he found the child out of her bed. He stated that he frequently lost his temper in that manner. He grabbed her by both arms and threw her on the bed real hard. She bounced off of the bed and he grabbed her by the throat. He then grabbed her by the neck and threw her back on the bed very hard. He was still very angry. He noticed that the child was having a hard time breathing. Moore stated that Appellant had nothing to do with the killing.

Moore testified in his own behalf. He stated that he did not kill the child and implicated Appellant as she was the only other individual in the home at the time of the death.

Both Appellant and her codefendant, Moore, were convicted of capital murder. Appellant was convicted under a theory of omission, by failing to protect the child from Moore. Appellant was also convicted of injury to a child by omission.

In Issue No. One, Appellant maintains that the court erred in failing to grant her motion to sever the trial of Appellant and her codefendant, Sonny Moore. Appellant and Moore both filed motions to sever based upon the prejudicial effect a joint trial would have on their respective defenses. Appellant alleged that she believed Moore would be changing his statement and would implicate her in the death of her daughter. During the trial, Appellant and Moore reargued their requests for severance based upon the prejudicial effect the joint trial would have on each of their respective defenses.

Article 36.09 of the Texas Code of Criminal Procedure states:

Two or more defendants who are jointly or separately indicted ... for the same offense ... may be, in the discretion of the court, tried jointly or separately as to one or more defendants ... and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

See Tex. Code CRiM. Proc. Ann. art. 36.09 (Vernon 1981).

Article 36.09 mandates severance where a prior criminal conviction of one codefendant is admissible or where a joint trial would, as a matter of law, prejudice a codefendant; otherwise, the granting of a severance is within the sound discretion of the trial court. Silva v. State, 933 S.W.2d 715, 718-19 (Tex.App.-San Antonio 1996, no pet.). The denial of a motion to sever will constitute an abuse of discretion only when the movant satisfies the heavy burden of showing “clear prejudice.” King v. State, 17 S.W.3d 7, 16 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Louis v. State, 825 S.W.2d 752, 757 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd).

When the defendant has filed a pretrial motion for severance based on prejudice that the court denies, the trial court has a continuing duty under the Federal Constitution to order a severance sua sponte if sufficient prejudice becomes known during the course of the trial. Aguilar v. State, 26 S.W.3d 901, 909 (Tex.Crim.App.2000). Different degrees of culpability of codefendants does not warrant severance. See Morales v. State, 466 S.W.2d 293, 296 (Tex.Crim.App.1971). In order to show clear prejudice, it must be shown that the respective defenses of the parties are mutually exclusive to the extent that the jury must believe the core of one defense and must necessarily disbelieve the core of the other. Aguilar v. State, 39 S.W.3d 700, 702 (Tex.App.-Corpus Christi 2001, pet. ref'd).

While it appeared at trial that Appellant had a prior conviction for recklessly causing injury to a child under fourteen years of age, this conviction was not admitted at trial. Therefore, Appellant had failed to demonstrate harm. See Rivello v. State, 476 S.W.2d 299, 300 (Tex.Crim.App.1972).

Regarding whether or not the defenses were mutually antagonistic, we find that the defenses were mutually antagonistic. If the jury were to believe Moore’s assertions at trial, then Appellant committed the offense. This would be antagonistic to her defense that she did not commit the offense and did not fail to protect the child from Moore. Accordingly, we find that the court abused its discretion in failing to sever the trials in that there was evidence before it of clear prejudice to Appellant’s defense. See Silva, 933 S.W.2d at 719. Issue No. One is sustained.

In Issues Nos. Two and Three, Appellant asserts that the evidence was legally and factually insufficient to support the conviction for capital murder and the conviction for injury to a child. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-10 (Tex.Crim.App.1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.-El Paso 1992, pet. refd). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex.App.-El Paso 1995, pet. ref'd); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.-El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.-El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843, quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness’s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex.App.-El Paso 1995, pet. ref'd).

In the charge of the court, the jury was required to find that Appellant caused the death of a child under six years of age by having a legal duty to protect the child and she failed to protect the child from Sonny Dale Moore.

In the present case, there was evidence that the child had received numerous injuries over an extended period of time. During the visit to the pawn shop, the testimony indicated that the child was in obvious, severe distress suffering from injuries. She was not acting normally and had an inappropriate demeanor. This caused the employees at the pawn shop to call the authorities. The pathologist testified that there were recent injuries. More telling, he related that some of the injuries to the mouth were three to four weeks old. The child had been pulling out her hair and the evidence demonstrated that the child was in obvious physical and emotional distress prior to the incident that resulted in her death. Billy McGovern testified that he had expressed concern for the child’s well-being and he threatened both Qualley and Moore that he would contact the authorities if the injuries continued. Viewing the evidence in the light most favorable to the verdict, we find that the evidence was legally sufficient to support the conviction for capital murder.

Regarding the conviction for injury to a child, the jury was required to find that Appellant did intentionally and knowingly by omission cause serious injury to a child younger than fifteen years of age by failing to protect her from Sonny Dale Moore and she had a legal duty to act. Applying the aforementioned analysis to the injury to child conviction, we find that in viewing the evidence in the light most favorable to the verdict, that the evidence is legally sufficient to support the conviction. Issues Nos. Two and Three are overruled.

Having overruled Appellant’s Issues Nos. Two and Three, but further having sustained Issue No. One, we reverse the judgment of the trial court and remand the cause for proceedings not inconsistent with this opinion.

      . Given the discussion and disposition in the first issue, we will address only the legal sufficiency of the evidence.