author: ADELE HEDGES, Chief Justice.

text:
    Samuel Richmond WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00757-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 2005.

      Henry L. Burkholder, III, Houston, for appellant.

      Bridget Holloway, Houston, for state.
    Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant Samuel Richmond Walker appeals his conviction for aggravated robbery. In his first nine points of error, appellant alleges that certain testimony by Detective Michael Parinello was hearsay and also violated his Sixth Amendment right to confrontation and cross-examination. In his last two points of error, appellant alleges that the evidence is legally and factually insufficient to support his conviction. We reverse and remand.

Background

On June 15, 2002, complainant Matilde Delgato was robbed at gunpoint in a Wal-Mart parking lot. Delgato was sitting in her car with her three sons when a man approached, put a gun to her chest, and ordered her to give him her purse or he would kill her. Delgato, who does not speak English, asked her thirteen-year-old son Eric to translate for her. Eric, who was sitting in the front passenger seat, told Delgato to give the man her purse, which she did. The purse contained credit cards, checks, jewelry, and the family’s identification documents. The robber left the scene in a small red car driven by a woman.

Two days later, Officer Kathy Richards arrested Dedra Dangerfield for public intoxication. In Dangerfield’s purse were Delgato’s identification documents and other stolen property. Richards then contacted Detective Michael Parinello, who was investigating the robbery. Parinello interviewed Dangerfield in jail and learned the nicknames of two potential suspects: “Pocahontas” and “Low Down.” Parinello then learned from a data bank that Pocahontas and Low Down were the nicknames of Noralva Ramos and appellant Samuel Richmond Walker.

Two weeks after the robbery, Parinello assembled photo spreads containing photos of Dangerfield, Ramos, and appellant and showed them to Delgato and Eric. Delgato could not identify anyone in the photo spreads; however, Eric picked appellant out of the photo spread and also identified him in court as the man who had robbed them. At trial, Parinello testified that he had also shown the photo spreads to Dangerfield, who identified Ramos as the person she knew as Pocahontas and appellant as the person she knew as Low Down. Dangerfield did not testify at trial.

Delgato testified that the robbery lasted about twenty seconds. She also admitted that she had not seen the perpetrator approach her car and that she did not get a good look at his face. Delgato also testified that she saw only the tip of a black gun because the robber had draped a jacket or sweatshirt over his arm and most of the gun.

Eric testified that the robbery lasted between one and two minutes, although security tapes indicated that the encounter was less than a minute. Eric also testified that he clearly saw the perpetrator’s face even though the man was wearing a hood. He stated that he saw only a couple inches of a black gun because the man’s sleeve hid the rest of the weapon and because he had been concentrating more on the man’s face. Eric also testified that he had seen the red car drive around the parking lot for several minutes before the robbery occurred.

Legal and Factual Sufficiency

We first consider appellant’s arguments that the evidence is legally and factually insufficient to support his conviction. In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002). This standard of review applies to eases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995). Although we consider all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000).

In a factual sufficiency review, we must view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). Evidence is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt and thus renders the conviction clearly wrong and manifestly unjust. Id. at 485; Vasquez, 67 S.W.3d at 236. Alternatively, evidence is factually insufficient if the evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard cannot be met, even if evidence supporting guilt outweighs the evidence to the contrary. Zuniga, 144 S.W.3d at 484. Again, the reviewing court may not substitute its own judgment for that of the jury and may not intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Vasquez, 67 S.W.3d at 236.

Viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient to support appellant’s conviction beyond a reasonable doubt. To obtain a conviction for aggravated robbery, the state needed to prove that (1) appellant unlawfully appropriated Delgato’s property with the intent to deprive her of it; (2) appellant intended to obtain or maintain control of Delgato’s property; and (3) appellant used or exhibited a deadly weapon. Tex. Pen.Code Ann. §§ 29.02, 29.03, 31.03 (Vernon 2003). The robber’s identity was the only point of contention in this case.

At trial, Eric Delgato testified that he had studied the robber’s face and had seen it clearly. He also identified appellant in a photo array and in court as the man who held a gun to his mother’s chest. Eric’s identification is legally sufficient because a conviction may be based on the testimony of only one eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971). Additionally, Parinello’s testimony that Dangerfield identified appellant as the man she knew as Low Down linked appellant to the crime because Delgato’s belongings were found in Dangerfield’s possession. Thus, viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient to support appellant’s conviction for aggravated robbery.

Viewing the evidence in a neutral light, we also find that a jury rationally could have found appellant guilty of aggravated robbery beyond a reasonable doubt. Even though Delgato was unable to identity appellant, Eric identified him in both the photo spread and in open court. Although defense counsel attempted to impeach Eric by emphasizing that the robbery had lasted only a few seconds, that the perpetrator had been wearing a hood, and that Eric was only thirteen at the time, the jury is the sole judge of a witness’s credibility, and it apparently found Eric to be credible. Furthermore, Dangerfield had Delgato’s stolen property in her possession and identified appellant as Low Down; these facts suggest that appellant was involved in the robbery. Thus, viewing the evidence in a neutral light, we find that the evidence is factually sufficient to support appellant’s conviction.

Right to Confrontation

In his sixth and eighth points of error, appellant argues that the trial court violated his federal right to confrontation and cross-examination by allowing Parinello to testify that Dangerfield identified photographs of Ramos and appellant. We agree.

In Crawford v. Washington, the United States Supreme Court held that the admission of incriminating testimonial out-of-court statements violates a defendant’s Sixth Amendment right to confrontation and cross-examination when the defendant has had no opportunity to cross-examine the declarant. 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Although the Court declined to provide a comprehensive definition of “testimonial,” it explained that a statement is testimonial if it was “made under circumstances which would lead an objective [declarant] reasonably to believe that the statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. 1354. The Court also specified that the term “testimonial” includes statements taken by police officers during interrogations and noted that it was using the term “interrogation” in a colloquial rather than a technical legal sense. Id. at 52, 53 n. 4, 68, 124 S.Ct. 1354. To illustrate this point, the Court asserted that the declarant’s recorded statement, “knowingly given in response to structured police questioning,” qualified as testimonial under any conceivable definition of “interrogation.” Id. at 53 n. 4, 124 S.Ct. 1354.

In determining whether statements are testimonial, Texas courts generally have looked to the degree of formality of a declarant’s interaction with police, the purpose and structure of police questioning, and the likelihood that the declarant expects that the statements could be used in a criminal prosecution. See, e. g., Tyler v. State, 167 S.W.3d 550, 555 (Tex.App.-Houston [14th Dist.] 2005, pet. ref' d) (holding that victim’s explanation of what had transpired was nontesti-monial because it merely aided the start of the investigation and the officer did not ask questions); see also Wilson v. State, 151 S.W.3d 694, 698 (Tex.App.-Fort Worth 2004, no pet.) (holding that statements were nontestimonial because there was no interrogation when witness initiated contact with police and the purpose of officers’ questions was not to elicit information about known criminal activity); Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding that accomplice’s videotaped statement to police after defendant’s arrest was testimonial); Lee v. State, 143 S.W.3d 565, 570-71 (Tex.App.-Dallas 2004, pet. ref'd) (holding that statement was testimonial because circumstances were sufficiently formal when declarant made the statement during a traffic stop in response to police questioning and the statement was videotaped); Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd) (holding that co-defendant’s written custodial statement made during investigation of charged offense was testimonial). This precedent suggests that testimonial statements “involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings,” and that the procedure used to procure the statement determines whether the statement is testimonial. Tyler, 167 S.W.3d at 553 (citing Scott v. State, 165 S.W.3d 27, 46 (Tex.App.-Austin 2005, pet. stricken)); Wiggins v. State, 152 S.W.3d 656, 659 (Tex.App.-Texarkana 2004, pet. ref'd) (citing United States v. Saget, 377 F.3d 223, 228 (2nd Cir.2004)).

We find that Dangerfield’s identifications of Ramos and appellant qualify as testimonial statements. Parinello approached Dangerfield while she was in police custody to question her about an ongoing criminal investigation and asked her to identify suspects in that investigation. These facts demonstrate that the setting was sufficiently formal and structured to qualify as a police interrogation. Additionally, under these circumstances, Dangerfield reasonably could have believed that her identifications would be used in the subsequent trials of Ramos and appellant. Therefore, we find that the admission of Dangerfield’s incriminating out-of-court testimonial statements violated appellant’s Sixth Amendment rights.

The State argues that the confrontation issue is not preserved for appeal because defense counsel failed to object and obtain a ruling after each question. We disagree. To preserve constitutional error, counsel must timely and specifically object to the complained-of testimony; a defendant waives his right to confront witnesses if defense counsel does not object on confrontation grounds at trial. See Tex. R.App. P. 33.1(a); Oveal v. State, 164 S.W.3d 735, 739 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Bunton v. State, 136 S.W.3d 355, 369 (Tex.App.-Austin 2004, pet. ref'd) (holding that appellant waived Confrontation Clause complaint by failing to object at trial and rejecting argument that because Crawford established a new constitutional principle, an objection would have been futile).

We find that appellant’s defense counsel preserved the confrontation issue by making adequate objections at trial. We quote briefly from the State’s direct examination of Parinello to illustrate this point:

[Prosecutor]: In connection with the photo spread containing Pocahontas also known as Noralva Ramos, did Dedra Dangerfield make an identification as to who she knew to be that person?
[Defense Counsel]: Same objection, Judge. Nontestifying witness, out of court hearsay, and confrontational (emphasis added).
The Court: Overruled.
[Parinello]: Yes, she did.
[Prosecutor]: And who did she identify? [Defense Counsel]: Same objection (emphasis added).
[Parinello]: She identified the photograph in the Number 4 position as No-ralva Ramos.
[Prosecutor]: In connection with State’s Exhibit 2, the photo spread containing Samuel Richmond Walker, did you show that photo spread to her as well? [Parinello]: Yes.
[Prosecutor]: Was Dedra Dangerfield able to identify anyone in that photo spread?
[Defense Counsel]: Same objection again, Judge (emphasis added).
The Court: That will be overruled. [Parinello]: Yes.
[Prosecutor]: What was her identification?
[Parinello]: She identified the person in Number 6 as the person she knew as Low Down.

Clearly, defense counsel made three objections on confrontation grounds, two of which were overruled. Although counsel did not object after every question and faded to obtain a ruling after one objection, to do so likely would have frustrated both the judge and the jury, and also may not have been possible before Parinello answered the prosecutor’s questions. The record indicates that counsel persistently objected to questions regarding Dangerfield’s identification of both Ramos and appellant; therefore, we find that the confrontation issue was preserved for appeal.

The State also contends that any error by the trial court was harmless. According to the State, Parinello’s testimony regarding Dangerfield’s identification of Pocahontas as Ramos was “completely irrelevant” to appellant’s conviction. Furthermore, the State claims that the only significant facts proved by the challenged testimony were that appellant was known as “Low Down” and that Dangerfield knew him as such. We disagree.

We evaluate harm in this case under the constitutional standard. When conducting a harmless error review, an appellate court must reverse a judgment of conviction unless it determines beyond a reasonable doubt that the error did not contribute to the conviction. Tex.R.App. P. 44.2(a). The reviewing court should be concerned with the integrity of the process leading to the conviction and should examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, and its probable collateral implications. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). Essentially, the reviewing court should ask whether the jurors were able to properly apply law to facts in order to reach a verdict. Id. If the error was of a magnitude that it disrupted the jury’s orderly evaluation of the evidence, then the conviction is tainted. Id. at 588.

We cannot determine beyond a reasonable doubt that the- challenged testimony did not contribute to appellants conviction. Although Parinello avoided stating explicitly that Dangerfield had received Delgato’s stolen property from either Ramos or appellant, Dangerfield’s identifications of Ramos and appellant as Pocahontas and Low Down implicitly link appellant to the crime. The record reveals that Eric Del-gato identified appellant as the perpetrator, that a woman drove the red get-away car, and that Dangerfield possessed Delga-to’s property two days after the robbery; in the context of this evidence, Dangerfield’s identifications suggest that Ramos/Pocahontas and appellant/Low Down robbed Delgato and that Dangerfield acquired the stolen property from them. Furthermore, in its closing argument, the State highlighted the significance of Dangerfield’s identifications and characterized her statements as fundamental evidentiary links:

[Parinello] shows the photo spread with Samuel Walker in it, and Dedra Dangerfield said that’s Low Down. That’s who I was talking about. She is not a witness to the robbery, hut she is the one who connects up the names.
Detective Parinello told you Dedra Dangerfield picked Samuel Walker also known as Low Down out of that photo spread, State’s Exhibit 2.
You know what? Have you seen a better photo spread?
He is Number 6. Eric picked him out like that. “I’m sure that’s him, Detective Parinello. I’m sure of it. That’s the man who put the gun to my mother’s chest.”
Two days later Detective Parinello has the information. Dedra Dangerfield has now made the positive identification. “That’s Low. Doum, and that’s Pocahontas. That’s Samuel Walker. ”
So, now with that information he knows he has got the right person known as Low Down based on what Dedra Dangerfield’s identification is ... (emphasis added).

This emphasis on Dangerfield’s identifications of Ramos and appellant indicates that Dangerfield’s out-of-court statements were much more significant than the State acknowledges on appeal. Therefore, we cannot determine beyond a reasonable doubt that the challenged testimony did not contribute to appellant’s conviction.

We sustain appellant’s sixth and eighth points of error and hold that the admission of Dangerfield’s testimonial out-of-court statements violated appellant’s Sixth Amendment rights. Because we sustain appellant’s sixth and eighth points of error, we need not address appellant’s remaining points of error. We reverse and remand to the trial court.

      . A jury convicted appellant and assessed a punishment of forty-five years’ confinement in the Texas Department of Criminal Justice Institutional Division.

      . Eric left the store before his mother and brothers to listen to the radio and turn on the air conditioning in the car. He testified that he saw the red car in which the robber eventually escaped circling the parking lot while the rest of his family was still inside the Wal-Mart.

      . Although defense counsel objected to Pari-nello’s testimony regarding Dangerfield’s role in the investigation, an appellate court must consider all the evidence admitted at trial in conducting its sufficiency review. Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004).

      . The record indicates that "same objection” refers to an objection that defense counsel made several pages earlier when the prosecutor asked Parinello whether Eric Delgato had identified appellant in the photo spread. At that time, counsel had stated: “Violates confrontational clause and it’s hearsay.”

      . The record reveals a similar pattern throughout Parinello’s testimony; counsel objected numerous times on confrontation or hearsay grounds, and the court overruled the vast majority of these objections. We find these additional objections indicative of defense counsel’s consistent efforts to exclude portions of Parinello’s testimony.


source: Caselaw Access Project

author: Justice ROSS.

license: Public Domain

text:
    In the Matter of C.M.G.
    No. 06-05-00009-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 22, 2005.
    Decided Nov. 30, 2005.

      Michael D. Papania, Law Office of Michael D. Papania, Nederland, for appellant.
    Wayln G. Thompson, Asst. Crim. Dist. Atty., Beaumont, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

C.M.G. appeals from a jury finding that she engaged in delinquent conduct: committing capital murder. Specifically, the jury found that C.M.G. intentionally or knowingly caused the death of a child, younger than six years of age, by suffocation. Based on the jury’s finding, the court committed C.M.G. to the Texas Youth Commission for a term of twelve years, “until said child is seventeen years of age and with the possibility of transfer [to the state penitentiary].” C.M.G. contends in this appeal the evidence is legally and factually insufficient to support the verdict.

The evidence shows that C.M.G., at age fifteen, gave birth to a male child fathered by her brother. She was at home, alone in her room, when she delivered the child. She wrapped the newborn in a wet towel and zipped it up inside a band bag. The deceased infant was found inside the bag, and the autopsy report shows that it died of asphyxia, due to smothering. The evidence further shows that C.M.G. has a mental age well below normal and that her intellectual ability is near mental retardation.

Even though appeals of juvenile court orders are generally treated as civil cases, adjudications of delinquency in juvenile cases are statutorily based on the criminal standard of proof. See Tex. Fam. Code Ann. § 54.03(f) (Vernon Supp.2005). Thus, we review an adjudication by applying the same standards applicable to sufficiency of the evidence challenges in criminal cases. In re K.H., No. 06-04-00103-CV, 169 S.W.3d 459, 2005 WL 1719329 (Tex.App.-Texarkana July 26, 2005, no pet.); In re J.B.M., 157 S.W.3d 823 (Tex.App.-Fort Worth 2005, no pet.).

When both legal and factual sufficiency are challenged, we first determine whether the evidence is legally sufficient to support the verdict. Rivera v. State, 59 S.W.3d 268, 273 (Tex.App.-Texarkana 2001, pet. ref'd). In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

In reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light, favoring neither party. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004); Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). We view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 9; Clewis, 922 S.W.2d at 129; In re C.S., 79 S.W.3d 619, 622 (Tex.App.-Texarkana 2002, no pet.).

C.M.G. attacks the sufficiency of the evidence by contending it fails to show: (1) that C.M.G. intended to kill, (2) that she knew her conduct was reasonably certain to cause the child’s death, (3) that she was aware of but disregarded a substantial and unjustifiable risk that death would result from her conduct, or (4) that she should have been aware of such a risk.

In reviewing the sufficiency of the evidence, we are to look at events occurring before, during, and after the commission of the offense, and we may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Guevara v. State, 152 S.W.Sd 45, 49-50 (Tex.Crim.App.2004). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. Motive is a significant circumstance indicating guilt, and intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Id. at 50.

There is no doubt C.M.G. wrapped the baby in a wet towel and placed it in the bag. However, there is no direct evidence of intent. The mental culpability of a defendant is of such a nature that it generally must be inferred from the circumstances in which a prohibited act or omission occurs. A mental state is concealed within the mind of an individual and can only be determined from the words, acts, and conduct of that individual. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim.App.1998). Because there is no direct evidence C.M.G. intended to kill the baby, the question is whether the jury had sufficient evidence before it from which it could infer C.M.G. knowingly caused the baby’s death. An act is “knowing” when the person knows his or her conduct is reasonably certain to cause the result. Tex. PeN.Code Ann. § 6.08(b) (Vernon 2003).

As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Tex.Code CRím. Pkoc. Ann. art. 38.04 (Vernon 1979). The jury could accept portions of a witness’ testimony and reject other portions. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). Direct evidence of culpability is not necessary to support a conviction; intent or knowledge may be inferred from the acts and circumstances surrounding a crime. Hernandez v. State, 819 S.W.2d 806, 809-10 (Tex.Crim.App.1991).

The evidence for and against the verdict in this case can be summarized as follows:

Evidence Supporting the Verdict
C.M.G. went to the hospital after having the baby because she was bleeding; there she admitted having the child, cutting the umbilical cord, cleaning the baby with towels, and placing the baby in her band bag. She also admitted washing the towels and bed linens. She left the baby at home, zipped up in the band bag.
C.M.G. successfully hid her pregnancy from family and friends. She took steps to hide the evidence she had given birth, including hiding the baby, throwing the placenta over a fence, washing the bloody items, and leaving the house.
C.M.G. told a friend the baby “was breathing and it stopped.”
Dr. Tommy Brown, the pathologist who examined the baby, testified he saw none of the typical signs of a stillbirth. His review indicated that the baby’s heart was beating as it went through the birth canal and that it had breathed in oxygen. He testified the baby could have died from being wrapped in a wet towel that occluded the airway. He testified that, if the baby was placed in a band bag that was then sealed off, the baby would quickly use up the oxygen. He said the baby and wet towel took up about two thirds of the space in the bag. He also testified he saw nothing else in the course of his examination that could have resulted in the baby’s death, other than asphyxiation.
Harris further testified C.M.G. expressed considerable remorse and concern over her behavior.
Evidence against the Verdict
C.M.G. claimed at the hospital that the child did not move or breathe.
The baby was bundled up in a towel inside the zipped band bag. The officer who located the baby saw only a foot sticking out from the towel. There were no signs of injury.
The pathologist testified there was no indication of strangulation or manual asphyxiation. He also acknowledged that some babies die for no ascertainable reason.
C.M.G.’s mother testified C.M.G. did poorly in school and was held back in the fifth grade. She described her daughter as “slow.” The mother further testified C.M.G. is easily confused.
Dr. Gerald Harris, a clinical psychologist, testified C.M.G. has long-term depression, Attention Deficit Disorder, and Post-traumatic Stress Disorder (PSD). PSD and depression make a person very indecisive. C.M.G. is very immature and has an IQ of between 77 and 87; mental retardation cutoff is 75. She is below normal intelligence, at the edge of the range of mental retardation. Various scales show her mental/emotional level to be between eight and eleven years of age.
Harris read to the jury a poem written by C.M.G. He said the poem is suicidal in nature and quite introspective.
Harris further testified C.M.G. told him she was guilt-ridden for not getting help before the baby was born.

The evidence shows that the child was born alive and that C.M.G. put the child in the bag. The sole question in this appeal is whether C.M.G. acted with knowledge her conduct would result in the death of the infant.

Texas does not recognize diminished capacity as an affirmative defense, i.e., a lesser form of the defense of insanity. Jackson v. State, 160 S.W.3d 568, 574-75 (Tex.Crim.App.2005). In contrast, as in Jackson, the diminished-capacity doctrine at issue in this case is simply a failure-of-proof defense in which the defendant claims the State failed to prove C.M.G. had the required state of mind at the time of the offense, based in part on her inherent mental and emotional capabilities, as shown by the evidence, including expert testimony.

Even though C.M.G. is not of average intelligence and is emotionally dysfunctional, the evidence showed she was functional at a middle-school level. Her act of placing the baby in a zipped band bag is consistent with her previous acts of hiding her pregnancy and can easily be described as the culmination of those actions. It is not an unreasonable inference from her actions that she wanted to permanently hide that fact by eliminating the child— and that she would know that placing the baby, wrapped in a wet towel, in a small, zipped bag, would result in its suffocation.

We find the evidence is not so weak that the jury’s verdict was clearly wrong and unjust; nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, the evidence is legally and factually sufficient.

We affirm the judgment.

      . The record shows that C.M.G. was in the marching band at school. This bag was also described as a small gym bag.

      . An act is intentional when it is the conscious objective or desire to engage in the conduct or cause the result. Tex. Pen.Code Ann. § 6.03(a) (Vernon 2003).


author: Justice MAZZANT.

text:
    Desmond T. HENSON, Appellant, v. SOUTHWEST AIRLINES COMPANY, Appellee.
    No. 05-04-01413-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2005.
    Rehearing Overruled Jan. 12, 2006.

      Joseph R. Willie, Willie & Associates, P.C., Houston, for Appellant.
    Pamela C. Hicks and William L. Maynard, Beirne, Maynard & Parsons, L.L.P., Houston, for Appellee.
    Before Justices LANG, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Desmond T. Henson appeals the trial court’s order granting summary judgment for Southwest Airlines Company. In two issues, he argues that the trial court erred in concluding that his malicious prosecution and negligence claims were preempted by federal law, and that the issues raised in Southwest’s no-evidence motion for summary judgment are not properly before the court. We affirm the trial court’s judgment.

Factual Background

Appellant purchased a one-way ticket with cash for a Southwest flight from St. Louis, Missouri to Houston, Texas. After passing through security but before reaching the gate, he was detained and searched by agents of the Drug Enforcement Administration (DEA). During the search agents found an unloaded handgun in appellant’s checked baggage. The Federal Aviation Administration (FAA) subsequently brought a civil enforcement action against appellant for not declaring the weapon.

In its notice of appearance and witness list in the civil administrative action, the FAA identified Shannon Boland, a ticket counter agent for Southwest, as a witness. Southwest alleged that it expected Boland to testify that Henson purchased a one-way ticket with cash; she accepted Henson’s bag and put it on the conveyor belt; Henson did not declare the weapon when he checked-in his luggage; and she later assisted the DEA in retrieving the bag. However, the FAA subsequently withdrew the civil administrative action, and the case was dismissed

Henson then brought this lawsuit against Southwest alleging malicious prosecution and negligence. He claims that as he checked in his luggage, the ticket counter agent placed a ‘red tag’ on his checked bag. After he was taken to a secure room and searched, the DEA agents told him he had been stopped and searched because they were notified by the ticket counter that he looked suspicious, and a ‘red tag’ had been placed on his checked bag. He further alleges the detention, search, and subsequent FAA administrative complaint were brought about because Boland informed the DEA that he fit the profile of a potential drug courier due to his cash purchase of a one-way ticket. He claims Bo-land did not have any good faith basis to believe he was a drug courier, and he was the victim of “racial and pecuniary profiling.”

Southwest pleaded federal preemption and moved for summary judgment. The trial court granted Southwest’s motion for summary judgment, denied Henson’s motion for partial summary judgment, and entered judgment that Henson take nothing. This appeal followed.

Preemption

Rule 166a(c) of the Texas Rules of Civil Procedure provides the standard of review for summary judgments. Tex.R. Civ. P. 166a(c); Moore, 143 S.W.3d at 341. In reviewing summary judgments, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference in favor of the non-movant is allowed, and all doubts are resolved in his favor. Id. at 548—49.

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiffs theory of recovery or (2) plead and conclusively establish each essential element of an affirmative defense. Biaggi v. Patrizio Rest., Inc., 149 S.W.3d 300, 303 (Tex.App.-Dallas 2004, pet. filed) (citing Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979)).

Preemption is an affirmative defense. Stier v. Reading & Bates Corp., 992 S.W.2d 423, 436 (Tex.1999); Kiefer v. Cont’l Airlines, Inc., 882 S.W.2d 496, 497-98 (Tex.App.-Houston [1st Dist.] 1994), aff'd, 920 S.W.2d 274 (Tex.1996). When a defendant moves for summary judgment based on an affirmative defense, the defendant has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Unless the defendant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to the defendant’s motion for summary judgment filed on the basis of an affirmative defense. Torres v. West. Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).

Federal preemption of state law is based on the Supremacy Clause of the United States Constitution, which provides that “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Under the Supremacy Clause, if a state law conflicts with federal law, the state law is preempted and “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). Preemption may be either express or implied. Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex.2003).

Southwest argues that Henson’s malicious prosecution and negligence claims are preempted by section 41713(b)(4)(A) of the Airline Deregulation Act (the Act), which provides:

A State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier through common controlling ownership when such carrier is transporting property by aircraft or by motor vehicle (whether or not such property has had or will have a prior or subsequent air movement).

49 U.S.C. § 41713(b)(4)(A) (emphasis added). Through this provision, Congress expressly preempted state law as applied to the price, route, or service of an air carrier. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The words of the statute express a “broad pre-emptive purpose.” Id.

Several cases interpreting the Act’s preemption clause guide our analysis of section 41713 and its application to these facts. In Morales, the issue was whether the Act prevented enforcement of guidelines affecting the regulation of airline fare advertising under the Texas Deceptive Trade Practices Act. Morales, 504 U.S. at 378, 112 S.Ct. 2031. The Court construed the phrase “related to” broadly to preempt “State enforcement of actions having a connection with, or reference to, airline ‘rates, routes, or services.’ ” Id. at 384, 112 S.Ct. 2031. Citing this “broad preemptive purpose,” the Court rejected the idea that the preemption clause only prevented states from actually setting routes, rates, or services, or that only state laws aimed specifically at the airline industry were preempted. Id. at 384-86, 112 S.Ct. 2031. While acknowledging that “ ‘some state actions could affect [airline fares] in too tenuous, remote, or peripheral a manner,’ to have preemptive effect,” it concluded that the advertising regulations at issue would have a “forbidden significant effect” on airline rates, routes and services — and were therefore preempted— because they restricted fare advertising, which in turn “related to” price. Id. at 389-91, 112 S.Ct. 2031 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).

In American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the only other recent Supreme Court case addressing the scope of section 41713, the issue was whether state law consumer fraud and breach of contract claims arising from retroactive changes in a frequent flyer program were preempted under the Act. Id. at 224-25, 115 S.Ct. 817. Citing another portion of section 41713— “enact or enforce any laws”' — the Court held that the consumer fraud statute, like the advertising guidelines in Morales, “serves as a means to guide and police the marketing practices of the airlines.” Id. The Act therefore preempted the consumer fraud claims. The state law breach of contract claims, however, were not preempted. The Court held that section 41713 did not protect the airlines from “suits alleging . no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.” Id. at 228, 115 S.Ct. 817.

The Texas Supreme Court first addressed the scope of the Act’s preemption in Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274 (Tex.1996). In Kiefer, the issue was whether “state common-law personal-injury negligence actions against airlines are preempted by the [Act].” Id. at 275. In one case, the plaintiff alleged she was injured when she was hit on the back of the head by a briefcase that fell from an overhead storage bin. Id. In the other case, the plaintiff, who suffered from mental illness, alleged he was injured because the airline failed to provide an agent to meet and assist him in transferring to a connecting flight. Id. Citing Morales and Wolens, the court applied a two-part analysis to determine whether the plaintiffs’ personal injury claims were preempted. First, it asked whether the claims related to airline rates, routes, or services. Second, the court determined whether the claims constituted the enactment or enforcement of a state law, rule, regulation, standard, or other provision. Id. at 281-82. Applying this analysis, the court held that, although the personal injury claims related to airline services, the claims did not amount to enforcement of a state law and, thus, were not preempted. Id. at 282. However, the court was careful to note that even common law negligence claims could potentially run afoul of section 41713, depending on the damages sought:

With certain reservations, we think negligence law is not so policy-laden in imposing liability for personal injuries that suits for damages like those before us are preempted by the ADA. We recognize that with negligence law, and other tort law, there is a greater risk that state policies will be too much involved than there is with contract law, especially in the area of damages. For example, recovery of punitive damages for negligence is, depending on the State involved, essentially unlimited, limited by judicial rule, limited by statute, shared between the plaintiff and the state, or disallowed altogether. One could easily argue that the threat of punitive damages against airlines has a greater regulatory effect than liability for actual damages. Also, recovery of damages for mental anguish may or may not require accompanying physical injury, or aggravated conduct by the defendant, or be subject to other restrictions. Such differences could fall within the concerns argued by the DOT in Wolens, but these differences are minimal in the cases before us. Plaintiffs in neither case seek punitive damages, and we cannot determine from the limited summary judgment records how significant the mental anguish claims may be. Of course, plaintiffs may amend their pleadings before trial to claim punitive damages, but we decline to speculate whether such claims would, in these cases or other situations, be preempted by the ADA.

Id.

In Delta Air Lines, Inc. v. Black, a passenger whose spouse was denied a first-class seat on an over-booked flight filed suit against the airline for breach of contract, fraud and misrepresentation. Delta, 116 S.W.3d 745 (Tex.2003). Applying the two-part analysis in Kiefer, the court compared cases from the U.S. Ninth Circuit, which narrowly construe services, see Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir.1998), with the Fifth Circuit’s more expansive interpretation of services to include “ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself,” see Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995), and concluded that claims involving boarding and seating procedures fall within most courts’ definition of services. Black, 116 S.W.3d at 753 n. 5 (citing additional authorities). The court also concluded that the plaintiffs claims, if allowed to proceed, would constitute state enforcement or enactment of a state law under section 41713. The court noted that “[i]f passengers were permitted to challenge airlines’ boarding procedures under state common law, the airline industry would potentially be subject to regulation by fifty different states.” Id. at 756. The court likewise concluded that the plaintiffs misrepresentation and fraud claims were preempted because they were premised on the airline’s ticketing and boarding procedures, and therefore directly related to airline services. Id. Rejecting the court of appeals analysis, the court observed that state tort actions can constitute state enforcement under section 41713 because of the regulatory effect of state law damage claims and their potential for frustrating congressional objectives. See id. (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)).

We begin with the first part of the Kiefer analysis: Do Henson’s claims relate to airline prices or service? We believe the answer to this question is yes. Federal aviation regulations require every airline to screen passengers and property. 14 C.F.R. § 201 (2002). These same regulations require passengers and airlines to follow certain procedures when a passenger transports a firearm. Id. According to the affidavit of Kathleen Stewart, the manager of airport security for Southwest, the federal government requires Southwest to use a computer-assisted passenger screening system (CAPS) as part of its Aircraft Operator Standard Security Program. When passengers either check-in or purchase a ticket at the airport, the airline’s reservation computer informs the employee whether any given passenger is selected for additional screening. Some passengers are selected for additional screening based on various factors which are analyzed by the CAPS system; a certain number are selected at random. But it is the security system that identifies which passengers are subject to additional security checks. Southwest employees do not determine which passengers are subject to additional security screening, and they have no discretion to deviate from CAPS. The summary judgment evidence therefore establishes, as a matter of law, that Southwest employees have no discretion in determining which passengers are subject to additional security screening, and that the ticketing agent’s actions were based on mandatory federal aviation security screening regulations directly affecting airline services through ticketing and baggage-handling procedures. See Black, 116 S.W.3d at 752-53.

Turning to the second part of the analysis, we note that although Black did not specifically consider malicious prosecution or negligence claims, Henson’s tort claims include elements that both Black and Kiefer suggest would constitute an impermissible state enactment or enforcement of policies. First, Henson asserts a claim for punitive damages. Kiefer acknowledges that recovery for punitive damages is a factor that “could easily ... [have] a greater regulatory effect than liability for actual damages.” Kiefer, 920 S.W.2d at 282; see also Black, 116 S.W.3d at 751 (“And depending on the nature and extent of the damages sought, even simple negligence actions may constitute an impermissible regulation of the airline industry through state tort law.”). Second, he makes a claim for mental anguish. This is yet another factor that could have an adverse regulatory affect on the airline industry. Kiefer, 920 S.W.2d at 282 (noting that “recovery of damages for mental anguish may or may not require accompanying physical injury, or aggravated conduct by the defendant, or be subject to other restrictions.”). Third, allowing state courts to adjudicate tort law claims arising out of an airline’s use of federally mandated security screening procedures has the potential for undermining the federal regulatory scheme and subjecting airlines to inconsistent multi-state litigation. This problem was recognized by the Texas Supreme Court in Black:

The fact that federal regulations expressly address airline boarding procedures strengthens our conclusion that Black’s breach of contract claims resulting from Delta’s boarding and seating procedures are preempted by the ADA. To hold otherwise could create extensive multi-state litigation, launching inconsistent assaults on federal deregulation in the airline industry, every time an airline reassigned a passenger’s seat.

Black, 116 S.W.3d at 756; see also Morales, 504 U.S. at 378, 112 S.Ct. 2031 (noting that the Act’s preemption provision is intended “[t]o ensure that the States would not undo federal deregulation with regulation of their own”).

What clearly distinguishes this case is not just that Henson seeks exemplary damages and asserts mental anguish, but that his claims are based on “violation of state-imposed obligations,” i.e. federally imposed passenger screening procedures, and not “the airline’s alleged breach of its own, self-imposed undertakings.” See Wolens, 513 U.S. at 228, 115 S.Ct. 817. We conclude the summary judgment evidence in this case establishes, as a matter of law, the affirmative defense of preemption under section 41713(b)(4)(A) of the Act. Furthermore, Henson failed to present summary judgment evidence raising an issue of fact precluding summary judgment. Therefore, the trial court did not err in granting summary judgment in Southwest’s favor. Because of this conclusion, we will not address Henson’s second issue.

The judgment of the trial court is affirmed.

      . Southwest moved for summary judgment based on both federal preemption and no evidence. The trial court’s order does not specify the basis on which it granted summary judgment, so we may affirm the summary judgment if any of the grounds raised in the motion are meritorious. Moore v. Johnson, 143 S.W.3d 339, 341 (Tex.App.-Dallas 2004, no pet.).

      . In addition to Kiefer, Henson relies on Lewis v. Continental Airlines, Inc., 40 F.Supp.2d 406 (S.D.Tex.1999), which concerned a lawsuit brought by an airline passenger who was arrested, incarcerated and released after allegedly making terroristic threats following a dispute over a missed flight. After reviewing United State Supreme Court and lower court federal precedent, the court concluded that Lewis’s state law claims were not preempted because the connection was too tenuous. The decision, however, does not address Kiefer and predates Black, so its relevance to the present case is questionable at best. Furthermore, there is no discussion of damages and no indication that federally mandated security screening procedures were an issue in the case.


author: RICK STRANGE, Justice.

text:
    Ronnie Ray HUSE, Appellant, v. STATE of Texas, Appellee.
    No. 11-04-00095-CR.
    Court of Appeals of Texas, Eastland.
    Dec. 1, 2005.
    Rehearing Overruled Jan. 19, 2006.

      Jed Silverman, Michael A. Maness, Houston, for appellant.
    John Terrill, District Attorney, Jason Cashon, Asst. Dist., Stephenville, for ap-pellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Ronnie Ray Huse appeals his conviction for theft of service. A jury found appellant guilty and assessed his punishment at two years in a state jail facility. Appellant contends that the evidence is constitutionally insufficient and the indictment inadequate to support his conviction. We affirm.

BACKGROUND FACTS

Appellant moved his mother into Golden Age Manor Nursing Center in Dublin in April 2001. Appellant agreed with Golden Age’s administrator, Donna Morgan, to take the necessary steps to qualify his mother for Medicaid. Until then, she would be private pay. To entitle his mother to Medicaid benefits, appellant agreed to establish a Medicaid trust fund bank account.

Golden Age’s owner, Bobbie Nichols, received notification in April that appellant had submitted a Medicaid application for his mother but was advised in May that approval was . delayed. In September, Nichols learned that Medicaid had denied appellant’s application because of his failure to furnish information to the government and because of his failure to establish the necessary trust fund bank account. Nichols advised appellant that his Medicaid application had been denied and offered to help him establish the required bank account. Appellant declined her offer, indicating that he would take care of it; but he did not. Eventually, Nichols established the bank account herself.

In October, Nichols reminded appellant that he had an outstanding balance for his mother’s care and treatment. He promised to pay it. Eventually, after further phone calls, appellant gave Golden Age a check in December which brought his mother’s account current through the end of November.

Nichols phoned appellant on December 26, 2001, and told him that December’s billing was due. Appellant responded that he thought that Medicaid would pick up the December bill. Golden Age received no payment from appellant or Medicaid; and, on March 5, 2002, Nichols wrote appellant a demand letter giving him until March 15 to bring his mother’s account current. Nichols received a check on March 15 for $8,107.00, which was dishonored because of insufficient funds.

Nichols phoned appellant when she learned that his check had not been honored by the bank. He stated that there was money in the account and that he would send another check, but he never did. Nichols sent a second demand letter on March 25th which was returned unclaimed. She then left a message on appellant’s answering machine advising him of her intention to file criminal charges. Appellant returned this call and promised to come to Golden Age, to make the check good, and to sign papers to get a bank draft for his mother started. He did not do so. Subsequently, appellant promised to overnight a replacement check but did not do this either.

Golden Age allowed appellant’s mother to stay at their facility and continued to provide care and treatment. Nichols knew that appellant’s mother was receiving VA and Social Security benefits. She contacted governmental officials and requested that they directly deposit appellant’s mother’s payments into her Medicaid trust fund account. VA checks started coming to the trust fund account in June. Medicaid eventually approved appellant’s mother for benefits beginning in October or November. Medicaid paid retroactively to April of 2002, but the Medicaid payment did not bring appellant’s account current because the patient was responsible for the first $1,500.00 per month of nursing home charges.

ISSUES

Appellant was convicted of violating TEX. PEN. CODE ANN. § 31.04(a) (Vernon Supp.2005)(theft of service). Appellant argues that this conviction cannot stand because his conviction was based solely upon an insufficient-funds check for an antecedent debt and because his indictment did not provide him with due process.

Whs Appellant Improperly Prosecuted, For Writing An Insufficient-Funds Check to Pay for Antecedent Services?

Section 31.04(a) makes the theft of service a crime. In relevant part it provides:

(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token.

“Deception” is defined in TEX. PEN. CODE ANN. § 81.01(1) (Vernon Supp. 2005) to mean:

(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.

Appellant argues that the evidence is constitutionally insufficient to establish his guilt beyond a reasonable doubt because his check was written for antecedent rather than future services and that, therefore, it was not used to “secure” service as required by the statute.

The parties agree on the application of Section 31.04(a) in two instances. First, if one simply pays for a completed transaction with an insufficient-funds check, no violation is shown. On the other hand, if one prepays for services with that same check, the statute is implicated. The distinction is the vendor’s reliance. The statute requires proof that appellant secured services with a deceptive act. In the first instance, because the services were provided before the check was tendered, it cannot be said that the vendor relied upon it or that appellant secured anything with it. In the latter, assuming no services would have been provided without the prepayment, it can be safely said that the vendor relied upon the check and that appellant successfully secured services with it.

This case falls somewhere between the two. Appellant’s check was for services previously rendered, but Golden Age continued providing appellant’s mother with care and treatment after receipt of the check. Does this constitute a violation because, as the State argues, Golden Age relied upon the check to continue caring for appellant’s mother? Or is the fact that appellant’s check was solely for services previously provided outcome determinative as appellant argues? Both parties agree that our analysis is governed by two Texas Court of Criminal Appeals’s decisions: Gibson v. State, 623 S.W.2d 324 (Tex.Crim.App.1980), and Cortez v. State, 582 S.W.2d 119 (Tex.Crim.App.1979).

In Cortez, 582 S.W.2d at 119, the defendant paid for window tinting with an insufficient-funds check and was convicted of theft by check of services. The Court of Criminal Appeals reversed, finding that the statute requires a deceptive act which affects the judgment of another. Because defendant’s sole deceptive act was paying with an insufficient-funds check after his windows had been tinted, the check could not have affected the vendor’s judgment. Id. at 120-21.

In Gibson, 623 S.W.2d at 324, the defendant was convicted of theft by check of services for paying his Holiday Inn bill with a check drawn on a bank at which he had no account. A Texas Court of Criminal Appeals panel cited Cortez and reversed, holding that the check could not have induced the Holiday Inn to provide any services since it was given after the fact. Id. at 326. The State filed a motion for rehearing which was heard by the court en banc. In that motion, the State argued that, after passing the worthless check, the defendant incurred additional charges of $142.58 and that his check confirmed the false impression that he intended to pay for his entire bill. That false impression, according to the State, affected the Holiday Inn’s judgment in the events following the check’s receipt. Id. at 329. Judge Clinton, writing for the court en banc, rejected the State’s argument for two reasons. First, Section 31.04(a) required, at that time, theft of at least $200.00 in services. The post-check services totaled only $142.58. Secondly, the evidence conclusively established that the Holiday Inn did not rely upon the check because it immediately undertook significant activity to determine its validity. Id. at 331.

Appellant argues that Cortez and Gibson require reversal because, as in those cases, his check was written for services previously provided, which as a matter of law is not a violation of Section 31.04(a). The State counters that Gibson left open the possibility that a worthless check could secure future services upon proper proof of reliance. We agree with appellant that an insufficient-funds check given to pay an antecedent debt, without more, does not violate Section 31.04(a). Whether that check could be a deceptive act which secured future services requires a legal sufficiency review of the record.

A legal sufficiency review requires consideration of all of the evidence in the light most favorable to the verdict and a determination of whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

Appellant’s indictment required the State to prove that he secured services worth at least $1,500.00 but not more than $20,000.00 using the insufficient-funds check. Nichols testified that appellant owed Golden Age approximately $10,000.00 at the time of trial. When she sent her March demand letters, however, appellant owed only $8,107.00. Appellant’s insufficient-funds check for $8,107.00 was received in response to the demand letter. The record is replete with appellant’s misrepresentations about the check and his ability and willingness to make it good, but there is no evidence that appellant’s check affected Golden Age’s judgment prior to March 15 or that appellant secured any prior services with it. Consequently, appellant’s conviction cannot be supported by the $8,107.00 he owed on March 15.

It is undisputed that Golden Age allowed appellant’s mother to remain after appellant’s check was dishonored and that appellant continued to accrue additional charges. Subtracting appellant’s March 15 balance from his balance at trial, leaves approximately $2,000.00 of non-reimbursed, post-check charges. Whether those charges can be attributed to the check is disputed.

Appellant contends that Golden Age could only have relied on the check for the length of time it took to discover that it was worthless. Nichols received the check on March 15. She learned that it had been dishonored on March 20. Golden Age charged appellant $2,077.00 per month for his mother’s care. Using these figures, appellant contends that Golden Age could not have advanced more than $415.00 in services in reliance upon his check.

We cannot say, as a matter of law, that Golden Age was precluded from any reliance on appellant’s check after learning it had been dishonored. Why they continued to allow appellant’s mother to stay and the extent of the .damage they incurred because of his check are inherently fact questions.

Nichols provided the following testimony on these issues:

Q. I believe you said yesterday [the insufficient-funds check] was for these services that accrued prior to that time — some period of time prior to that?
A. Yes.
Q. And based on that check did you continue to provide these services to— for [appellant’s mother]?
A. Yes.
Q. I mean, you — you assumed, and I believe you told us yesterday, that [appellant] told you that was a good check, that it—
A. Yes, sir.
Q. And even though it didn’t clear the bank he continued to tell you that check was going to be good?
A. Yes.
Q. That he was going to pay it?
A. Yes.
Q. And you continued to provide services for his mother based on those representations he made to you?
A. I did.
Q. Huh — If you consider the — the time that — huh—[appellant’s mother] has been in your facility and what charges have accrued, both before and after March, when this check was given, what — how much has — has—has the nursing home lost?
A. Around $10,000.
Q. Huh — Do you — Were the charges that were accrued after you received the check, this State’s Exhibit 1, the March 13th check, in excess of $1,500?
A. Yes, sir.
Q. And less than $20,000?
A. Yes, sir.

No other witness testified about Golden Age’s reliance, or lack thereof, on appellant’s check.

The jury knew that appellant’s payment came in response to Golden Age’s demand letter and that he left his mother at Golden Age. The jury had appellant’s bank statements, which conclusively establish that he had no ability to pay his debt with this account. The jury was entitled to infer that he sent the check to keep Nichols from taking further action; that, by leaving his mother at Golden Age, he intended to incur additional charges; and that he intended for Nichols to believe that he would pay those additional charges.

Appellant’s deceptive conduct was confirmed by other testimony. Jill Moore, a local pharmacist, testified that appellant wrote them a hot check for $2,014.86 at about the same time for his mother’s medication. Appellant called his employer, Gary Greer, to the stand. Greer testified that appellant had similar problems in Harris County and Corpus Christi and that he owed approximately $60,000.00 in back child support.

The surrounding circumstances also support- Golden Age’s reliance. In March, Nichols did not know if appellant’s mother would ever qualify for Medicaid benefits nor when the benefits might start. Appellant’s mother’s Social Security and VA checks were not yet being deposited into her trust account. Consequently, appellant was the only source of payment. Had he ignored Nichols’s demand letter or made no effort to pay his mother’s charges, a reasonable juror could conclude that Golden Age would have asked appellant to move appellant’s mother and that Golden Age sustained at least $1,500.00 in damages in reliance upon appellant’s check. We hold that there was legally sufficient testimony to support a conviction for theft of service, and his first issue on appeal is overruled.

Did Appellant’s Indictment Provide Due Process1

Appellant argues that, if the evidence was legally sufficient to support a conviction, his indictment was not. The indictment read as follows:

RONNIE RAY HUSE, hereinafter styled [Appellant], on or about the 13th day of March A.D.2002 and before the presentment of this indictment, in the County and State aforesaid, did then and there, by deception, threat, or false token, to-wit: issue an insufficient check, intentionally or knowingly secure performance of a service, namely, care for his mother from the Golden Age Manor, of the value of $1,500 or more but less than $20,000, from Bobbie Nichols, intending to avoid payment for the service and knowing that the service was provided only for compensation.

Appellant argues initially that this indictment does not support a conviction for any promise that he may have made in April 2001 when he initially moved his mother to Golden Age. We agree. The point, however, is immaterial. The trial court’s charge followed the indictment and instructed the jury that it must find beyond a reasonable doubt that appellant deceptively secured services of at least $1,500.00 by issuing an insufficient check on or about March 13. Consequently, he was not tried for promises made in April 2001.

Appellant next argues that the indictment is insufficient to support a conviction for “promising to pay the insufficient funds check.” Again, we agree. We disagree, however, that appellant was convicted for failing to make the check good.

Appellant’s promises to make the check good, while leaving his mother at Golden Age, are relevant to establish intent. As noted in greater detail in our discussion of the legal sufficiency of the evidence, Golden Age relied upon appellant’s promise to pay; and it considered this check evidence of that intention. Regardless of the amount of money appellant owed on March 15, the testimony was undisputed that Golden Age relied upon his check by deferring legal action and by allowing his mother to stay. As a result, appellant incurred at least $1,500.00 in additional charges.

We find that the indictment provided due process by giving appellant adequate notice of the charges he faced and that his conviction is consistent with the allegation in the indictment. Issues 2 and 3 are overruled.

CONCLUSION

We have considered and overruled each of appellant’s challenges to his conviction. The evidence is legally sufficient to support his conviction, and the indictment provided him with due process. The judgment of the trial court is affirmed.

      . In addition to theft of service by deception, threat, or false token, Section 31.04(a) also makes it a crime to: divert services (Section 31.04(a)(2)); keep rented personal property beyond the length of a written rental agreement (Section 31.04(a)(3)); and secure the performance of service by agreeing to provide compensation and, after the service is rendered, failing to pay after receiving a demand for payment (Section 31.04(a)(4)).

      . We will treat appellant's challenge as a legal sufficiency challenge. See Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex.Crim.App.1996), cert. den'd, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).

      . Appellant's balance on January 31, 2002, was $<118.90>. His balance on February 28, 2002, was $379.18 and on March 31-, 2002, was $788.47. During March, he only deposited $2,665.00 into this account, and he incurred insufficient funds charges for 8 checks.