author: BOB PEMBERTON, Justice.

text:
    Gerald VANBRACKLE, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00272-CR.
    Court of Appeals of Texas, Austin.
    Nov. 4, 2005.

      Christopher P. Morgan, Austin, for appellant.
    C. Bryan Case, Jr., Asst. District Atty., Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

A jury found appellant Gerald Van-Brackle guilty of attempted murder and aggravated assault. See Tex. Pen.Code Ann. §§ 15.01, 19.02 (West 2003), § 22.02 (West Supp.2004-05). After finding that appellant had two previous felony convictions, the district court imposed forty-year prison sentences for each offense. Among the issues raised on appeal is appellant’s assertion that the trial court erred by refusing to instruct the jury on the law of self-defense. We will sustain this contention, reverse the judgments of conviction, and remand for a new trial.

Evidence

It was undisputed at trial that appellant shot Johnnie Weston on the afternoon of December 14, 2002, outside a neighborhood grocery store at 14th Street and Cedar Avenue in Austin. There was, however, considerable dispute with respect to the circumstances surrounding the shooting.

State’s witnesses

Weston testified that Lee Standberry gave him a ride to the grocery store to purchase cigarettes. Outside the store, appellant confronted Weston brandishing a pistol and demanding that Weston pay him the money he was owed. Weston said he told appellant that he did not owe him any money. Weston then grabbed the barrel of the pistol and “we started scuffling over the gun.” A third person who was later identified as Billy Charles Warren began hitting Weston with a two-by-four or large stick. Weston said that he released his grip on the pistol and fell face-down on the ground. According to Weston, appellant then shot him in the back.

Weston testified that someone went through his pockets as he lay in the street after being shot. He denied being armed. Weston also testified that appellant had previously wrecked a car borrowed from Weston. He said that this had angered him at the time, but he “didn’t stay mad long.” Weston testified that about one week before the shooting, appellant threatened him with a pistol at the same grocery store.

One of the doctors who treated Weston testified that the bullet entered his body “from the side, posteriorly from sort of the shoulder, and went straight into the spinal canal.” The spinal trauma left Weston a paraplegic.

Standberry testified that after dropping Weston off at the store, he had continued on to a nearby tire shop. While he was at the tire store, someone drove up and said, “There’s a guy laying in the middle of the street, looks like he is dead.” Standberry continued, “So everybody really ran around there and looked. And I said, Man, that’s Johnnie laying in the middle of the street.” Standberry testified that he remained with Weston until medical personnel and the police arrived. He denied taking anything from Weston’s pockets. He also confirmed Weston’s account about the incident at the store one week earlier.

Kyle Taylor was approaching the 14th and Cedar intersection in his car when he saw three men fighting in the street. Taylor testified that one man was lying on the ground while the other two stood over him. “[Ojne man was punching the man that was down on the ground. And the other one looked like he was trying to take something out of his hand.” As Taylor was looking for a place to park, he heard a single gunshot. He looked back at the fight scene, where he saw the man lying in the street and the other two men walking away.

Elizabeth Rodriguez lives on Cedar Avenue near the grocery store. On the day in question, her attention was drawn by the sound of an argument. She stepped outside and saw two men “shouting at each other and shoving each other.” They appeared to be wrestling over something. A third man walked up and began to hit the legs of one of the struggling men. The latter man turned and began to run away. The man -with whom he had been fighting “lifted up his hand,” which was holding a pistol, and shot the fleeing man.

Theodis Daniel, Sr., owns an air conditioning repair shop on Cedar Avenue across the street from the grocery store. He was working at the shop when he heard a “commotion.” He looked across the street and saw appellant (whom he knew) and another man “tussling, but I did not know what they were — had in their hands.” A third man who was armed with a “stick or limb or whatever” joined the fray. The men then separated and Daniel could see that appellant was holding a handgun. “As he got the — after they broke apart, the individual just kind of turned a little bit to the — to his left, he kind of turned a little bit to the left, and then he [appellant] just fired.” Daniel testified that the man who was shot had “turn[ed] away ... as if maybe to flee or I don’t know, maybe get out.” Daniel was of the opinion that appellant deliberately shot Weston.

Theodis Daniel, Jr., was working on a car outside his father’s shop on the afternoon of the shooting. His attention was drawn by “a bunch of movement” in the street. Two men, one of whom he recognized as appellant, appeared to be “wrestling or play-fighting.” Appellant called out to a third man to “hit him, hit him.” The third man “popped him one good time” in the lower back. Appellant and the man he was fighting fell to the ground, and Daniel could then see that they were struggling for control of a pistol. Appellant “snatched [the gun] out of his hand,” then he “[t]urned it around with his hand and shot him one time, and that was it.” Daniel testified that the victim “was trying to run. You know, I could have been wrong, but he just popped him and he fell face first to the ground.” It was Daniel’s impression that appellant had been defending himself from Weston’s initial aggression, and that appellant had taken the gun from Weston and shot him “just to make sure.” He said that Weston had nothing in his hands when he was shot, that he saw no other 'weapons, and that no one took anything from Weston as he lay in the street before the police arrived.

Defense witnesses

Billy Charles Warren testified that he and appellant were with a group of men standing outside the grocery store when Weston, who appeared to be intoxicated, arrived. Warren was speaking to another individual when he sensed “a little commotion.” He turned and saw appellant and Weston wrestling. As Warren watched, Weston reached in his pocket and pulled out a gun. Appellant began to struggle for control of the gun and called out to Warren for help. Warren said, “I don’t know where I got the stick from, but I starting hitting him.” All three men fell to the ground. Warren said he did not see what happened next, but that he heard the gunshot. “All I know is when I turned back around, the gun was in [appellant’s] hand.” He and appellant then fled.

Alton Earl Jones was one of the men standing outside the grocery store. He testified that as Weston approached, appellant asked him what he wanted. “[T]hat’s when he [Weston] went in his pocket and fumbled and pulled out the gun.” Weston cocked the pistol and walked closer to appellant. Appellant pushed Weston’s arm “up in the air” and they began to wrestle. Appellant called out for help and Warren hit Weston with the stick. Appellant and Weston fell to the ground and the gun fell loose. Jones said that each man scrambled for the gun as they got up from the ground. “[Appellant] ended up getting the gun first, and then Mr. Weston got up, he started fumbling in his pocket, like, for something.” Asked when the gun was fired, Jones replied, ‘When [appellant] thought his life was in danger, because he was still fumbling in his pocket like he had another object.” According to Jones, after the shooting Standberry took “an object” from Weston’s pocket.

Jesse Shaw testified that he walked out of the grocery store and saw Weston pointing a gun at appellant. Shaw said that appellant “tried to defend himself’ by “trying to get the gun away from him.” Appellant shouted for help and Warren, who Shaw did not then know, hit Weston on the back of his leg. Appellant and Weston fell, but they continued to fight over the gun. Shaw testified, “Mr. Weston got to his feet, and Mr. VanBrackle got up to his feet. You know, Mr. Weston meant like he was getting ready to pull something” out of his pants pocket. “And that was it. The gun went off.” Shaw said that appellant did not aim the gun at Weston. Instead, when appellant picked up the gun, it “just went off.” Shaw testified that he there was no question in his mind that Weston initiated this incident.

Discussion

The district court denied appellant’s request for a self-defense instruction. The court did, however, instruct the jury on what was referred to at trial as the “accident defense.” See Rogers v. State, 105 S.W.3d 630, 637 (Tex.Crim.App.2003); Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982). The instruction told the jurors that “a person commits an offense only if he voluntarily engages in conduct,” and it directed them to acquit appellant if they believed or had a reasonable doubt that “the shooting was a result of an accidental discharge of the gun while Johnnie Weston and the defendant were struggling or scuffling for the possession of the gun and was not a voluntary act or conduct of the defendant.” See Tex. Pen. Code Ann. § 6.01(a) (West 2003). It appears from the record that the trial court believed that the submission of this instruction precluded the submission of an instruction on self-defense. When, after both sides had closed, defense counsel renewed his request for a self-defense instruction, the court replied, “On yesterday, I explained to you that you could not have both the accident and the self-defense.” The court added, “I have included the accident in the Court’s charge, thereby prohibiting you from having the self-defense charge.”

In our review of the trial court’s ruling, we will first address the question of whether there was evidence raising self-defense as an issue. Finding that there was, we will then address the court’s conclusion that the jury instruction regarding involuntary conduct disentitled appellant to an instruction on self-defense.

Was self-defense raised?

A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of the trial court’s opinion about the credibility of the defense. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996). This rule is designed to insure that the jury, not the trial court, will decide the relative credibility of the evidence. Granger, 3 S.W.3d at 38. A defendant need not testify in order to raise a defense. Boget v. State, 40 S.W.3d 624, 626 (Tex.App.-San Antonio 2001), aff'd, 74 S.W.3d 23, 31 (Tex.Crim.App.2002). Defensive issues may be raised by the testimony of any witnesses, even those called by the State. Jackson v. State, 110 S.W.3d 626, 631 (Tex.App.Houston [14th Dist.] 2003, pet. ref'd); Shelvin v. State, 884 S.W.2d 874, 878 (Tex.App.-Austin 1994, pet. refd). In deciding whether a defensive theory is raised, the evidence is viewed in the light most favorable to the defense. Granger, 3 S.W.3d at 38.

With certain exceptions not applicable here, a person is justified in using deadly force in self-defense if he reasonably believes that deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force, and if a reasonable person in his situation would not have retreated. Tex. Pen.Code Ann. § 9.32. A person has the right to defend himself from apparent danger to the same extent as he would if the danger were real. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996). Section 9.32 encompasses the traditional holding that a person is justified in defending against danger as he reasonably apprehends it. Id. Whether a defendant’s beliefs were reasonable under the circumstances is a fact question for the jury to decide, not a preliminary question for the court to evaluate in determining whether the defense is raised. Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App.1987); see Granger, 3 S.W.3d at 39 (reaffirming Hayes and applying it to mistake of fact defense).

The State argues that appellant was not entitled to a self-defense instruction because he did not “elicit or produce evidence that he did in fact reasonably believe deadly force was immediately necessary to protect himself from the use or threatened use of deadly force, and that he was relieved of the duty to retreat.” The State refers us to the holding of the Dallas court of appeals that to raise the issue of self-defense, there must be “evidence of [the defendant’s] state of mind or observable manifestations of [the defendant’s] state of mind.” Reed v. State, 703 S.W.2d 380, 385 (Tex.App.-Dallas 1986, pet. ref'd). This argument raises the question posed in Smith v. State, 676 S.W.2d 584, 585 (Tex.Crim.App.1984): “[W]hen the defendant does not testify, what kind of testimony is needed to raise the issue of self-defense, since [self-defense] focuses on the defendant’s subjective state of mind?”

In Smith, the defendant stabbed the complainant after the complainant intervened in an argument between the defendant and the defendant’s sister. Id. at 585-86. According to the State’s evidence, the defendant had armed himself with a knife and was attempting to enter the house in which his sister had taken refuge when the complainant grabbed him and pulled him away from the house. Id. at 586. The complainant then entered the house, took a gun away from the defendant’s sister, left the house, and placed the gun in the trunk of his car. Id. After this, the defendant again tried to enter the house and stabbed the complainant when he tried to stop him. Id.

A defense witness testified that when the complainant left the house carrying the sister’s gun, he pointed the gun at the defendant “like he was going to — he was shooting at [the defendant].” Id. This witness went on to say that “the complainant grabbed [the defendant] and the two began to scuffle. [The witness] testified that she heard the complainant say to [the defendant], ‘do what he had to do, don’t be messing with Darlene and if he wanted to hurt somebody, hurt him or he was going to hurt him.’ ” Id. A second defense witness testified that after the altercation, the defendant told her that the complainant “had been trying to hurt him” and that “he had taken the gun away from the complainant and had stabbed him.” Id. The court of criminal appeals held that the testimony of these two witnesses, “although not strong and convincing, raises the issue of self-defense.” Id. at 587.

We believe that the cause before us is analogous to Smith. Four witnesses testified that the altercation between appellant and Weston began when Weston pointed a pistol at appellant. According to these witnesses, appellant responded to this assault by grabbing the pistol, pushing it away, and calling for help. This was an “observable manifestation” of appellant’s belief that it was necessary to defend himself against Weston’s use or threatened use of deadly force. Indeed, three witnesses testified to their impression that appellant was defending himself against Weston’s attack. Two witnesses testified that after appellant succeeded, with Warren’s help, in disarming Weston and gaining possession of the pistol, Weston began to fumble in his pocket as if to pull out another object. At this point, appellant shot Weston. Viewed in the light most favorable to the defense, the evidence clearly supports a finding that Weston assaulted appellant with a firearm, and that appellant struggled with Weston to defend himself against this assault and obtain control of the weapon. Under these circumstances, we believe that the evidence describing Weston fumbling in his pocket as if to pull out another object was sufficient to raise an issue as to whether appellant reasonably believed that Weston was reaching for another weapon, that retreat was not a viable alternative, and that shooting Weston was immediately necessary to protect himself against Weston’s use or attempted use of unlawful deadly force.

We caution that we express no opinion regarding the credibility of the witnesses or the relative weight of their testimony, the proper inferences to be drawn from the evidence, or the reasonableness of appellant’s conduct. We hold only that the evidence adduced at trial was sufficient to raise a jury issue regarding the use of deadly force in self-defense. Whether the events in question actually transpired in the manner described by the defensive testimony and whether appellant’s conduct was reasonable under the circumstances are fact issues to be determined by a jury.

Was appellant entitled to inconsistent defenses?

When the evidence is inconsistent and supports more than one defensive theory, the defendant is entitled to an instruction on every theory raised, even if the defenses themselves are inconsistent or contradictory. Booth v. State, 679 S.W.2d 498, 501 (Tex.Crim.App.1984); see Johnson v. State, 715 S.W.2d 402, 406-07 (Tex.App.-Houston [1st Dist.] 1986), pet. ref'd, 738 S.W.2d 287, 288 (Tex.Crim.App.1987). In Garcia v. State, 492 S.W.2d 592, 595 (Tex.Crim.App.1973), the court of criminal appeals held that the evidence entitled the defendant to instructions on both self-defense and accident. Cited in Garcia and to the same effect are Merritt v. State, 85 Tex.Crim. 565, 213 S.W. 941, 942 (1919); Carden v. State, 62 Tex.Crim. 607, 138 S.W. 396, 397 (1911); Wesley v. State, 65 S.W. 904, 905 (Tex.Crim.App.1901). More recently, the court of criminal appeals held that a defendant’s request for an instruction on the absence of voluntary conduct (which was granted) was insufficient to alert the trial court that he also wanted an instruction on self-defense. Rogers v. State, 105 S.W.3d 630, 640 (Tex.Crim.App.2003). There is nothing in the Rogers opinion to suggest that the defendant was not entitled to instructions on both defensive theories if both were raised by the evidence.

Self-defense, like other chapter nine defenses, justifies conduct that would otherwise be criminal. Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999) (necessity); Wallace v. State, 75 S.W.3d 576, 587 (Tex.App.-Texarkana 2002) (self-defense), aff'd, 106 S.W.3d 103, 109 (Tex.Crim.App.2003). In other words, the defendant must “admit” violating the statute under which he is being tried, then offer a statutory justification for his otherwise criminal conduct. Young, 991 S.W.2d at 838. Thus, a defendant is not entitled to a jury instruction on self-defense if, through his own testimony or the testimony of others, he claims that he did not perform the assaultive acts alleged, or that he did not have the requisite culpable mental state, or both. Ex parte Nailor, 149 S.W.3d 125, 134 (Tex.Crim.App.2004); East v. State, 76 S.W.3d 736, 738 (Tex.App.-Waco 2002, no pet.); Wallace, 75 S.W.3d at 587; Gilmore v. State, 44 S.W.3d 92, 97 (Tex.App.-Beaumont 2001, pet. ref'd); Anderson v. State, 11 S.W.3d 369, 372 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). “If a defendant ... categorically denies that he even touched the victim of an alleged assault, he has engaged in no conduct which needs justifying. He has essentially denied that the alleged criminal act ever took place.” Gilmore, 44 S.W.3d at 97. In each of these cases, all the defensive testimony was to the effect that the defendant did not commit the alleged acts, and the defendant was thus not entitled to a self-defense instruction because there was no evidence that he acted in self-defense.

Involuntary conduct cannot be a criminal offense. Tex. Pen.Code Ann. § 6.01(a) (“A person commits an offense only if he voluntarily engages in conduct”). As in the opinions cited above, it can be argued that a defendant is not entitled to a self-defense instruction if he consistently asserts that the conduct for which he is on trial was committed involuntarily. This question is not raised here, however, because the defensive evidence was not consistent. While there was testimony that the gun “just went off,” there was other testimony supporting a finding that appellant voluntarily and intentionally shot Weston in self-defense. Because there was evidence raising both involuntary conduct and self-defense, appellant was entitled to instructions on both.

We hold that the evidence raised an issue as to whether appellant acted in self-defense, and that it was error to deny the requested instruction on the ground that other evidence supported an instruction on the voluntary conduct issue.

Was appellant harmed?

Because appellant properly requested an instruction on self-defense, reversal is required if the error was calculated to injure appellant’s rights. Hamel, 916 S.W.2d at 494; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). This means no more than that there must be some harm arising from the error. Almanza, 686 S.W.2d at 171. We must consider all relevant information revealed by the record, including the entire jury charge, the state of the evidence, and the arguments of counsel. Id.

The subject of self-defense came up throughout the trial. Counsel for both parties discussed self-defense with the jury panelists during voir dire. In fact, the prosecutor devoted one-third of his voir dire to the subject. We have already summarized the testimony in detail and will add only that counsel for both parties questioned witnesses, either on direct or cross, regarding matters relevant to self-defense, such as whether anything had been taken from Weston’s pockets before the police arrived. During jury argument, the subject of self-defense was first raised by the prosecutor: “Now, I want to go over something else with you, and that is a word that you heard several times, probably from the time of voir dire, and even throughout the trial, and that word, that term is ‘self-defense.’ ” The prosecutor went on to tell the jury that self-defense was not an issue, and had not been included in the court’s charge, because it was not raised by the evidence. When defense counsel later suggested in his argument that appellant had been defending himself, the prosecutor objected to “argument about self-defense,” and the court instructed the jury to consider only the issues in the court’s charge.

The State argues that any claim of self-defense is against the great weight of the evidence. The State points to the location of Weston’s gunshot wound, the evidence of appellant’s “calm and nonchalant” manner after shooting Weston, the contrast between the “varying testimony” of the defense witnesses and the “cohesive testimony” of the State’s witnesses, and the testimony regarding appellant’s armed confrontation with Weston one week before the shooting. The State also challenges the credibility of the defense witnesses.

As previously discussed, the medical evidence was that the bullet entered Weston’s body from the side, slightly behind his shoulder. The doctor agreed that “it was more like if a person were twisting around.” While this testimony is inconsistent with a finding that Weston and appellant were facing each other when the shot was fired, it is also inconsistent with the testimony of some State witnesses that appellant had his back turned and was running away from Weston when the shot was fired.

The testimony regarding appellant’s demeanor after the shooting was, like so much of the testimony, contradictory. Daniel Sr. testified that appellant “casually” walked away after shooting Weston. Taylor testified that appellant and Warren “walked away” after the shooting, but “might have been walking a little faster than normal.” Shaw testified that appellant “took off running” after the shooting.

Although the defensive testimony can be accurately characterized as varying and inconsistent, the State’s assertion that its witnesses presented a cohesive picture is not supported by a review of the testimony. Weston testified that he was lying face-down on the ground when he was shot, but the Daniels testified that Weston was standing and turning as if to flee, and Rodriguez testified that Weston was running away from appellant. Weston testified that appellant approached him brandishing the pistol, but Daniel Jr. testified that Weston “had to be” pointing the pistol at appellant because he saw appellant take the pistol from Weston, turn it, then shoot.

Weston’s and Standberry’s testimony regarding the incident one week earlier during which appellant demanded money from Weston at gunpoint lends support to the State’s theory of the case. But the same witnesses also testified to appellant having wrecked Weston’s car, which suggests a motive for Weston to assault appellant and supports the self-defense theory.

The State correctly points out that defense witness Jones was not a particularly credible witness. He admitted having felony convictions for theft, forgery, burglary of a building, assault, and cocaine possession. He was also noticeably evasive during cross-examination. Defense witness Shaw also admitted having two robbery convictions. But Weston had his own credibility problems. He denied being intoxicated on the afternoon of the shooting, but admitted that he was carrying a crack pipe. The medical evidence showed that Weston’s blood tested positive for cocaine, lending support to defense testimony that Weston appeared to be intoxicated.

When the issue is raised, it is the State’s burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. Tex. PemCode Ann. § 2.03(d) (West 2003). Had the jury in this cause been properly instructed, it needed only to have a reasonable doubt as to whether appellant’s actions were justified by self-defense to render an acquittal. Id. Prom a full examination of the record, we cannot state with confidence that there was no reasonable possibility that the jury would have found that appellant acted in self-defense. See Boget, 40 S.W.3d at 627-28. We therefore conclude that the court’s refusal to instruct the jury on self-defense caused some harm to appellant. Points of error one and two are sustained.

Because we find that appellant’s self-defense points present reversible error, we do not address his other points of error. The judgments of conviction are reversed and the cause is remanded to the district court for a new trial.

      . The State argues that there is no evidence that appellant saw Weston reach into his pocket. But if the jurors believed the defense witnesses, they could rationally infer that appellant also saw Weston's movement.

      . We note, however, that the State concedes that the aggravated assault was included within the attempted murder, and that appellant’s convictions for both offenses violate the double jeopardy guarantee against multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991); Ethridge v. State, 648 S.W.2d 306, 306 (Tex.Crim.App.1983).


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    In the Interest of K.N.P., A Child.
    No. 2-04-344-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 10, 2005.

      Janice A. Schattman, Fort Worth, for Appellant.
    Curtis Wayne Pope, Hurst, pro se.
    .Kenneth L. McAlister, Fort Worth, for Appellee.

      Panel B: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This ease involves a suit by a mother and presumed father to adjudicate paternity of an alleged biological father and obtain child support more than four years after the child’s birth. The trial court granted summary judgment in favor of the alleged biological father on statute of limitations grounds. In two issues, appellants Anne and Curtis P. challenge the summary judgment on the ground that family code section 160.607(a), which provides that a suit to adjudicate paternity of a child with a presumed father must be brought within four years of the date of the child’s birth, is an impermissible retroactive law. Tex. Fam.Code Ann. § 160.607(a) (Vernon Supp. 2004-05). We affirm.

Background Facts

K.N.P. was born on February 29, 1992. At the time, Anne, KN.P.’s biological mother, was married to Curtis, who is K.N.P.’s presumed father. Anne and Curtis knew when Anne became pregnant with K.N.P. that she was probably not Curtis’s child because Curtis had undergone a vasectomy. Anne and Curtis initially planned to divorce but reconciled shortly after KN.P. was born.

When Anne and Curtis learned she was pregnant, they told appellee William, KNJP.’s alleged biological father. According to Anne, William acknowledged his probable paternity and paid her $600 per month for about 10 months while she was pregnant and for a short time after KN.P. was born. William did not pay for any prenatal care or childbirth expenses, other than to perform an initial pregnancy test in his office. William stopped paying the $600 when Anne and Curtis reconciled.

In June 2008, Anne was having financial difficulty and asked William for money for KN.P. He gave her $2,000. In November 2008, he gave her $200 for Christmas presents for KN.P. According to Anne, he has not paid her any additional support.

Appellants raised KN.P. as their daughter and gave her their last name. KN.P. was unaware that Curtis was not her father until after appellants learned the results of the genetic testing in this case. According to Anne, William has “shown virtually no interest in [KN.P.] ... and has not sought any contact with her.”

When K.N.P. was nearly twelve years old, in January 2004, Anne and Curtis filed suit against William seeking to adjudicate William as KN.P.’s biological father and seeking future and retroactive child support and reimbursement of prenatal and childbirth expenses. They also sought to be named joint managing conservators of KN.P. William filed a motion for summary judgment on May 11, 2004, contending that appellants’ suit was barred by the four-year statute of limitations set forth in family code section 160.607(a). The trial court granted his motion on October 21, 2004.

Is Family Code Section 160.607(a) an Impermissible Retroactive Law?

In their first issue, appellants contend that the statute of limitations in section 160.607(a), as applied to bar their claim, constitutes an impermissible retroactive law. Id. In their second issue, they contend that their suit was timely because it was filed within four years after the effective date of section 160.607(a). Id.

Article I, section 16 of the Texas Constitution provides that “[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” Tex. Const. art. I, § 16. It is well settled that “laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new duties, or adopt new disabilities in respect to transactions or considerations past.” Tarrant County v. Coyel, 124 S.W.3d 268, 271 (Tex.App.-Fort Worth 2003, pet. denied). On the other hand, no litigant has a vested right in a statute or rule that is remedial or procedural in nature and that affects no vested substantive right. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex.2002); Coyel, 124 S.W.3d at 271.

The prohibition against retroactive laws derives largely from the sentiment that such laws unfairly deprive people of legitimate expectations. Owens Corning v. Carter, 997 S.W.2d 560, 572 (Tex.1999) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1496-97, 128 L.Ed.2d 229 (1994)). Considerations of fair notice, reasonable reliance, and settled expectations play a prominent role when a state legislature shortens an existing statute of limitations for causes of action arising in that state or when it creates an immunity where none existed before, thereby disrupting settled expectations and extinguishing accrued causes of action. Id. at 572-73.

Because statutes of limitations are procedural, they generally apply retroactively. Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex.1999); Attorney Gen. v. Redding, 60 S.W.3d 891, 893 (Tex.App.-Dallas 2001, no pet.). However, a statute of limitations will not be given retroactive effect if to do so would destroy or impair rights that vested before the effective date of the statute. Redding, 60 S.W.3d at 893; see Baker Hughes, 12 S.W.3d at 4.

The legislature can pass legislation affecting a remedy for an accrued cause of action without violating article I, section 16 if it affords a reasonable time or fair opportunity to preserve a claimant’s rights under the former law. Owens Corning, 997 S.W.2d at 572; City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex.1997). When the legislature shortens an existing statute of limitations or creates one where none had existed, it must provide a reasonable time for plaintiffs to bring suit after the enactment of the new law, a grace period. Owens Corning, 997 S.W.2d at 572; Wright v. Hardie, 88 Tex. 653, 32 S.W. 885, 886 (1895) (“The legislature may provide a shorter period of limitation for existing causes of action. It may make a statute of limitation for causes when none existed before, but it cannot, by so abbreviating the time in which suit must be brought, take away the right of action altogether. It must allow a reasonable time after the law goes into effect to bring suit upon actions which are not then barred.”).

The legislature enacted section 160.607(a) in 2001 as part of Texas’s codification of the Uniform Parentage Act. Section 160.607(a) requires that a suit to establish parentage on behalf of a child with a presumed father be brought no later than the child’s fourth birthday. Tex. Fam. Code Ann. § 160.607(a). The enacting language states that section 160.607(a) “applies to a motion or other request for relief made in a parentage or paternity proceeding that is commenced on or after the effective date of this Act [June 14, 2001].”

The statutes in effect from the time that K.N.P. was born in 1992 until June 14, 2001 allowed a mother, a presumed father, or both to bring a suit disputing the presumed father’s paternity and attempting to adjudicate an alleged biological father’s paternity until the second anniversary of the day the child became an adult, generally age twenty. Thus, until section 160.607(a) became effective, June 14, 2001, Anne and Curtis had the expectation that they could bring their claims at any time until K.N.P.’s twentieth birthday on February 29, 2012. But under the revised statute their suit was immediately barred altogether on June 14, 2001, whereas under the prior statute they would have had approximately eight more years to bring their suit against William. We hold that the statute did not provide a reasonable time for appellants to bring suit after enactment of the new law and therefore violated article I, section 16 of the Texas Constitution. We sustain appellants’ first issue.

Did Appellants Pursue Their Cause of Action Within a Reasonable Time?

Having determined that section 160.607(a) did not provide a reasonable time for plaintiffs to bring suit after its enactment, we must next decide whether appellants’ suit was filed within a reasonable time after the effective date of section 160.607(a). In Wright v. Hardie, our supreme court held that

[w]here the time [to file suit] has been shortened, and the statute has been run-nmg against the cause of action, at the time the new statute takes effect, the rule adopted by the decisions of this • court has been to apply absolutely neither the old law nor the new, but to allow such proportion of the unexpired period under the old statute as the time prescribed by it bears to the period limited by the new.

32 S.W. at 886 (emphasis added); see Garcia v. Vasquez, 621 S.W.2d 425, 426 (Tex.Civ.App.-San Antonio 1981, no writ). For example, if under the old law, two-thirds of the time had expired, then one-third of the limitations period established by the new law would be allowed within which to sue. Odum v. Garner, 86 Tex. 374, 25 S.W. 18, 19 (1894).

Here, nine years and three months— approximately 46% of the former limitations period — had expired when appellants filed suit against William; thus, appellants had approximately ten years and nine months — approximately 54% of the former limitations period — remaining to file suit under the former law. Applying the rule as set forth in Wright and Odum, a reasonable, proportionate time for them to file suit under section 160.607(a) would be 54% of four years, approximately two years and two months after the effective date of the statute, or until mid-August 2003. Adding • that to the time elapsed under the prior law, appellants had approximately eleven years and five months after K.N.P.’s birth to file a suit seeking to deny Curtis’s paternity and establish William’s. Appellants did not file suit until January 2004, nearly twelve years later; thus, we hold that they did not file their suit within a reasonable time after the enactment of section 160.607(a). We overrule appellant’s second issue.

Conclusion

Although we have determined that section 160.607(a)’s four-year limitations period violated article 1, section 16 of the Texas Constitution by not providing appellants a reasonable time to preserve their claims against William, we do not believe that appellants pursued those claims within a reasonable time after the statute was enacted. Consequently, we affirm the trial court’s judgment.

      . Anne and Curtis were still married when they filed suit and when the trial court rendered summary judgment.

      . None of the parties dispute this status.

      . Most of the factual background about the relationship among the parties is contained in an uncontroverted affidavit by Anne that appellants filed with their response to appellee William P.’s motion for summary judgment. Although William objected to the evidence as being untimely filed, he did not object to the content.

      .In their petition, appellants asked that K.N.P.’s last name remain the same as theirs.

      . A defendant’s right to rely on a statute of limitations vests when the limitations period expires. Redding, 60 S.W.3d at 893; see Baker Hughes, 12 S.W.3d at 4.

      . Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610, 1621; see Tex. Fam.Code Ann. § 160.101 (Vernon 2002); In re R.A.H., 130 S.W.3d 68, 69 (Tex.2004).

      . Act of May 25, 2001, 77th Leg., R.S., ch. 821, §§ 3.01-.02, 2001 Tex. Gen. Laws 1610, 1642; In re R.A.H., 130 S.W.3d at 69.

      . See Act of May 30, 1983, 68th Leg., R.S., ch. 424, § 7, 1983 Tex. Gen. Laws 2346, 2355 (allowing presumed father to bring suit denying paternity), repealed by Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610, 1626; Act of May 28, 1987, 70th Leg., R.S., ch. 689, § 5, 1987 Tex. Gen. Laws 2546, 2548 (allowing mother to bring suit denying paternity of presumed father), repealed by Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610, 1626 (amended 2003); Act of May 24, 1983, 68th Leg., R.S., ch. 744, § 1, 1983 Tex. Gen. Laws 4530, 4531 (providing that suit to determine parentage barred after second anniversary of day child becomes adult), repealed by Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610, 1626; Attorney Gen. v. Lavan, 833 S.W.2d 952, 954 (Tex.1992) (holding that claims to disestablish paternity of presumed father under former family code section 12.06 and to establish paternity of alleged biological father under former family code section 13.01 could be brought together in one suit).

      . K.N.P. turned twelve approximately one month after appellants filed suit against William.

      . In Likes, the Texas supreme court held that the time between enactment of a new law and its effective date, approximately three months, was a reasonable time for the litigant in that case to preserve her rights. 962 S.W.2d at 502. Here, however, the time between enactment of section 160.607(a) and its effective date was only twenty days.

      . This exceeds the one-year limitations period previously rejected by the United States Supreme Court as an unreasonable amount of time for a child with no presumed or adjudicated father to sue for an adjudication of parentage, Mills v. Habluetzel, 456 U.S. 91, 101, 102 S.Ct. 1549, 1555-56, 71 L.Ed.2d 770 (1982), and the two-year period adopted by the drafters of the Uniform Parentage Act, see In re R.O., No. 03-04-00506-CV, 2005 WL 910231, at *4 (Tex.App.-Austin Apr.21, 2005, no pet.) (mem.op.).


author: PER CURIAM.

text:
    Charles W. CRUMPTON, Jr., Appellant, v. The STATE of Texas, State.
    No. 2-04-603-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 10, 2005.
    Discretionary Review Refused March 1, 2006.

      Factor, Campbell & Shepherd, L.L.P., Kim Campbell, Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Asst. Criminal Dist. Atty. Chief of the Appellate Division, Anne Swenson, David M. Curl and Charles Brandenberg, Asst. Criminal Dist. Attys., Fort Worth, for appellee.
    PANELF: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
   MEMORANDUM OPINION

PER CURIAM.

Appellant Charles W. Crumpton, Jr. appeals his conviction for possession of methamphetamine with intent to deliver. In one point, appellant complains that the trial court abused its discretion when it denied his request to withdraw his guilty plea. We affirm.

Appellant entered an open plea of guilty before the trial court on October 21, 2004. In written admonishments signed that same day, appellant waived the preparation of a presentence investigation (PSI) report. The trial court accepted the plea of guilty and took the case under advisement pending a PSI report. On December 21, 2004, the trial court sentenced appellant to eight years in prison. Before the trial court pronounced the sentence at the hearing, appellant objected to the PSI report and requested that he be allowed to withdraw his guilty plea. The trial court denied appellant’s request.

Appellant complains that the trial court abused its discretion when it denied his request to withdraw his plea. He contends that his guilty plea was involuntary because it was based on the misinformation that a PSI report would not be prepared prior to sentencing.

Where, as here, an appellant was duly admonished, the admonishments create a prima facie showing that the guilty plea was entered knowingly and voluntarily. The appellant bears the burden of demonstrating that he was harmed because he did not fully understand the consequences of his plea. Generally, a guilty plea may be withdrawn as a matter of right without assigning a reason until the trial court accepts the plea. After the trial court accepts the plea, allowing withdrawal of the plea is within the court’s sound discretion.

In determining whether the trial court abused its discretion, we must uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. We must review the trial court’s ruling in light of what was before the trial court at the time the ruling was made. The trial court will not be overturned as long as its ruling was within the zone of reasonable disagreement. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.

The mere fact that appellant claims that he did not know that a PSI report would be prepared prior to his sentencing is not, standing alone, a sufficient basis for us to hold that his plea was involuntary. Prior to his plea, appellant waived his right to a PSI as part of the written plea admonishments. There is, however, no evidence in the record showing that his counsel or the trial court told him that a PSI would not be prepared or that he was promised the trial court would not order a PSI. To the contrary, appellant signed an admonishment stating that he was not promised anything in exchange for his plea.

Moreover, there is evidence that appellant did, in fact, know that a PSI would be prepared. The trial court’s certificate of proceedings bears the hand-written notation that the trial court accepted the plea but “defers finding pending PSI.” At the hearing on appellant’s request to withdraw his plea, the trial judge stated, “I am certain that we discussed at the time that he requested a presentence investigation report and that’s why I ordered one.” She also reminded appellant that she had already accepted his plea and therefore had already closed the window of time in which he could withdraw his plea as a matter of right. Considering the record as a whole, and faced with the absence of any evidence indicating that appellant was misinformed about whether a PSI would be prepared, we hold that it reasonably supports the trial court’s ruling that appellant’s guilty plea was knowing and voluntary.

Accordingly, we hold that the trial court did not abuse its discretion in refusing appellant’s request to withdraw his guilty plea. We overrule appellant’s sole point and affirm the trial court’s judgment.

      . See TexR.App. P. 47.4.

      . Once the trial court has admonished the defendant, received the plea, and received evidence, the passage of the case for a PSI constitutes taking the case under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979).

      . Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998).

      . Id.

      . A trial court accepts the plea after (1) the defendant has entered a plea of guilty or nolo contendere; (2) the trial court has admonished him; (3) the trial court has heard evidence in support of the plea, and (4) the trial court accepts the plea bargain agreement, if any, even though the issue of punishment remains. Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.).

      . Jackson, 590 S.W.2d at 515.

      . Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005).

      . Id.; Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).

      . Id.

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

      . Cf. Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (holding that defendant’s claim that he was misinformed by counsel is not enough to hold that his plea was involuntary when record contains no evidence of alleged misinformation by counsel other than appellant’s own testimony).

      . There is no record of the guilty plea hearing and no testimony was taken at the continuation of the hearing after the PSI was completed.

      . The cases on which appellant relies are inapposite because they all involved evidence showing that the appellant was promised — or believed he was promised — something in exchange for his guilty plea. See McGuire v. State, 617 S.W.2d 259, 261 (Tex.Crim.App.1981) (promises regarding punishment); Rivera v. State, 952 S.W.2d 34, 36 (Tex.App.-San Antonio 1997, no pet.) (promises that the plea could be withdrawn at any time); Huffman v. State, 676 S.W.2d 677, 678 (Tex.App.-Houston [1st Dist.] 1984, pet. refd) (promises regarding sentencing).


author: SUE WALKER, Justice.

text:
    Anteaus J. BRAY, Appellant, v. The STATE of Texas, State.
    Nos. 2-04-148-CR to 2-04-150-CR.
    Court of Appeals of Texas, Port Worth.
    Nov. 10, 2005.

      Richard C. Kline, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Asst. Criminal District Atty., and Chief of the Appellate Div., Fort Worth, for State.
   OPINION

SUE WALKER, Justice.

I. Introduction

On the court’s own motion, we submitted this case en banc. The primary issue that we address in this appeal is whether, in an Anders appeal, we have the authority to reform the judgment to delete appointed counsel fees that were set by the trial court as a condition of parole when appointed counsel did not raise this issue as a point of arguable error. Because we hold that we do have that authority, we reform the trial court’s judgment in cause number 2-04-148-CR to delete the appointed counsel fees imposed as a condition of parole, affirm that judgment as reformed, and also affirm the trial court’s judgments in cause numbers 2-04-149-CR and 2-04-150-CR.

II. Procedural Background

Pursuant to a plea bargain, Appellant Anteaus J. Bray pleaded guilty to three cases of aggravated assault with a deadly weapon, and the trial court placed him on five years’ deferred adjudication community supervision in each case and assessed a $250.00 fine in one of the cases. Later, the State filed a petition to proceed to adjudication in each case, alleging that Bray used marijuana; failed to make monthly payments on his fine, court costs, and supervision fee; failed to complete his community service restitution; failed to submit a urine sample; and failed to attend a budgeting class. At the contested revocation hearing, Bray presented his pro se Motion of Declaration of Conflict Between Attorney and Client. That motion argued that his court-appointed attorney “always came at [him] with what the State was offering” and indicated that he wanted his court-appointed attorney to work for him to get him rehabilitation. The trial court explained to Bray that his appointed counsel had a legal obligation to convey the State’s plea bargain offers and to consult with the court’s officer. The trial court called a recess to enable Bray to further consult with his court-appointed attorney. Subsequently, Bray entered a plea of true to the allegations in the State’s petition but offered mitigating explanations for his actions. The trial court adjudicated Bray guilty of aggravated assault with a deadly weapon and sentenced him to five years’ confinement in each case, to run concurrently, assessed reparation of $2,239.00, and — in appellate cause number 2-04-148-CR — assessed appointed counsel fees of $1,150.00 to be paid as a condition of parole.

Bray’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief, counsel avers that, in his professional opinion, these appeals are frivolous. Bray did not file a pro se brief.

III. Duties of Appellate Coukt in Anders Appeals

Once an appellant’s court-appointed counsel files a motion to withdraw and an Anders brief alleging that the appeal is frivolous, two distinct duties are imposed on the appellate court. See Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). First, we must examine appointed counsel’s brief to determine whether counsel has complied with the requisite procedural requirements. Id. If the brief does not contain references to the record, citations to authority, and legal analysis, we will order counsel to rebrief. Id. We also examine counsel’s motion to withdraw for compliance with the procedural requirements of Anders. If the motion to withdraw is not accompanied by an exhibit or certification showing that counsel has provided the appellant with a copy of the Anders brief and has informed the appellant of the right to review the record and to file a pro se brief, we will order counsel to take such actions and to supply such an exhibit or certification. Id.

Second, after determining that Anders’s procedural requirements have been satisfied, we must undertake an independent examination of the record and essentially rebrief the case for the appellant to determine whether we agree with counsel’s conclusion that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). Our independent review for potential error in a case involving an appeal from an adjudication of guilt is limited to potential jurisdictional defects, potential errors not involving the decision to adjudicate, and potential errors occurring after adjudication. See Tex.Code Crim. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-05); Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App.2001); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App.2001); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999).

A. Compliance with Procedural Requirements for Brief

A review of appointed appellate counsel’s brief demonstrates that it contains adequate references to the record, citations to authority, and legal analysis. The motion to withdraw is accompanied by an exhibit showing that counsel provided Bray with a copy of the Anders brief and informed Bray of his right to review the record and to file a pro se brief. Therefore, the brief and motion comply with the procedural requirements for an Anders appeal.

B. Independent Examination of the Record

1. Potential Jurisdictional Defects

We have reviewed the record, and there are no jurisdictional errors; the trial court had subject matter jurisdiction over these causes. See Tex.Code CRiM. Proc. Ann. arts. 4.05 (Vernon 2005), 42.12, § 5(b) (Vernon Supp.2004-05). Further, the indictments were not defective; they sufficiently conferred jurisdiction on the trial court and gave Bray sufficient notice. See Tex. Const, art. V, § 12(b); Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp.2004-05); Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App.1997).

2. Potential Errors Not Involving the Decision to Adjudicate

The trial court did not err by not granting Bray’s motion concerning a conflict with counsel or by not appointing another attorney for trial. Bray did not obtain a ruling on the motion to preserve any error, the trial court called a recess so that Bray could fully discuss matters with his counsel, and Bray subsequently signed written plea admonishments stating that he was satisfied with his representation by appointed counsel. See Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App.2002) (stating that Texas Rule of Appellate Procedure 33.1 requires, as a prerequisite to presenting a complaint for appellate review, that a timely, request, objection, or motion be made and ruled upon by trial court).

3.Potential Errors Occurring After Adjudication

Additionally, the trial court gave Bray the opportunity to offer mitigating evidence, and he did so during the punishment phase of the hearing. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App.1999). It is clear from the reporter’s record that the trial court considered the mitigating evidence before imposing the five-year sentences. The sentences assessed by the trial court following the punishment hearing are within the statutorily permissible range. See Tex. Penal Code Ann. § 12.34(a) (Vernon 2003). Thus, counsel has correctly determined that the appeals in cause numbers 2-04-149-CR and 2-04-150-CR are wholly frivolous.

In cause number 2-04-148-CR, however, the trial court assessed reparation of $2,239.00 and included the following language in the judgment:

APPOINTED COUNSEL FEES IN THE AMOUNT OF $1,150.00 TO BE PAID AS A CONDITION OF PAROLE IT IS FURTHER ORDERED THAT APPOINTED COUNSEL FEES FOR PURPOSES OF TEX. CODE CRIM. PROC., ANN., ARTICLE. 26.05 BE SET AT $1,150.00 AND MADE PAYABLE TO AND THROUGH THE CRIMINAL DISTRICT CLERK’S OFFICE OF TARRANT COUNTY, TEXAS

A Texas trial court is without authority to place any condition on a convicted defendant’s parole, including a condition that the defendant pay appointed counsel fees. Belt v. State, 127 S.W.3d 277, 280 (Tex. App.-Fort Worth 2004, no pet.); McNeill v. State, 991 S.W.2d 300, 302 (Tex.App.Houston [1st Dist.] 1999, pet. refd, untimely filed) (trial court may only make recommendation of condition of parole); see also Campbell v. State, 5 S.W.3d 693, 696-97 (Tex.Crim.App.1999) (stating that trial court may fix amount of restitution that is just, and parole panel may use this amount in ordering restitution as a condition of parole); Slaughter v. State, Nos. 2-04-050-CR, 2-04-051-CR, 2005 WL 183142, at *2-3 (Tex.App.-Fort Worth Jan.27, 2005, no pet.) (not designated for publication). Therefore, the trial court erred by including this condition of parole in the judgment in cause number 2-04-148-CR.

When a trial court errs by purporting to impose a condition of parole in its judgment, the proper remedy is to reform the judgment to delete the invalid condition. See Belt, 127 S.W.3d at 280. But, reformation of the judgment constitutes the granting of some relief to the defendant. Evans v. State, 933 S.W.2d 334, 335 (Tex.App.-Waco 1996, no pet.). When a defendant is eligible for some relief, an appeal typically cannot be considered “frivolous.” Id. (relying on McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 444, 108 S.Ct. 1895, 1905, 100 L.Ed.2d 440 (1988)).

In an Anders appeal, when our examination of the record reveals that nonfrivolous grounds for appeal exist, we must nonetheless grant counsel’s motion to withdraw because we cannot order counsel to brief and argue an appeal that counsel considers frivolous. See Nichols, 954 S.W.2d at 86 (citing Stafford, 813 S.W.2d at 511). In that situation, we normally abate the appeal and remand the cause to the trial court with instructions to appoint a new attorney for the appellant; the new attorney is then required to file a brief raising the nonfrivolous grounds that we have identified, as well as any additional grounds that the attorney discovers. Id.

Here, however, we decline to abate the appeal and remand the cause to the trial court for the appointment of new counsel. We instead exercise our authority to simply order the judgment in cause number 2-04-148-CR modified. Cf. Gaffney v. State, No. 2-03-00042-CR, 2005 WL 793741, at *1 (Tex.App.-Fort Worth Apr.7, 2005, no pet.) (not designated for publication) (abating Anders appeal for appointment of new counsel so that new counsel could raise illegality of judgment’s condition requiring payment of appointed counsel fees as a condition of parole). The arguable ground for appeal which we have located — the illegality of the condition in the judgment in cause 02-04-148-CR— presents an issue of law that this court has already addressed on multiple occasions, so we have binding precedent to guide us. See Belt, 127 S.W.3d at 280; Gaffney, 2005 WL 793741, at *1; see also Slaughter, 2005 WL 183142, at *2-3 (reforming judgment to delete reimbursement of appointed counsel’s fees imposed as condition of parole in non-Anders appeal); Green v. State, Nos. 2-03-377-CR, 2-03-397-CR, 2005 WL 78326, at *3-4 (Tex.App.-Fort Worth Jan.13, 2005, no pet.) (not designated for publication) (same). Abatement of cause number 2-04-148-CR would require the trial court to do a useless task — appoint counsel to raise an issue of law that we have previously ruled on — thus we decline to abate that appeal. See Homan v. Hughes, 708 S.W.2d 449, 454 (Tex.Crim.App.1986) (stating that the law does not compel us to require courts to perform useless tasks).

We have thoroughly reviewed the limited records before us and have considered all potential error in light of the limited review available from a proceeding to adjudicate a defendant’s guilt and revoke his community supervision; our independent review of the records did not reveal any other arguable grounds of error.

C. Grant Motion to Withdraw and Reform Judgment

We grant appellate counsel’s motion to withdraw. Additionally, because we hold that we possess authority to reform the judgment in cause number 2-04-148-CR, we reform that judgment to delete the language regarding the payment of appointed counsel fees as a condition of parole. See Tex.R.App. P. 43.2(f); Burnett v. State, No. 06-00-00147-CR, 2001 WL 82520, at *2 (Tex.App.-Texarkana Feb.l, 2001, no pet.) (not designated for publication) (reforming judgment to delete condition of parole in Anders appeal in which appointed counsel did not raise issue as point of arguable error); Conley v. State, No. 01-89-01119-CR, 1991 WL 413, at *1 (Tex.App.-Houston [1st Dist.] Jan. 3, 1991, no pet.) (not designated for publication) (reforming judgment to delete payment of attorney’s fees that were condition of parole in Anders appeal in which pro se raised issue as point of arguable error). But see Evans, 933 S.W.2d at 335 (holding that in an Anders appeal, the need to reform the judgment constitutes an arguable ground for appeal, requiring abatement for appointment of new counsel on appeal).

IY. Conclusion

Having granted appellate counsel’s motion to withdraw and reformed the judgment to delete the language regarding the payment of appointed counsel fees in cause number 2-04-148-CR, we affirm the trial court’s judgments in cause numbers 2-04-149-CR and 2-04-150-CR and affirm the trial court’s judgment in cause number 2-04-148-CR as reformed.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: RICHARD BARAJAS, Chief Justice.

text:
    J.E. BOYD GENERAL CONTRACTOR, INC., Appellant, v. PRESTIDGE SMITH RAZLOZNIK, INC., f/k/a Prestidge Smith Architects, Inc., Appellee.
    No. 08-05-00327-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 10, 2005.
    Arthur R. Piacenti, Hicks & Lucky, El Paso, for appellant.
    Bryan H. Hall, Richard & Hall, P.C., El Paso, for appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Pending before the Court is the Appellant’s unopposed motion to dismiss this appeal. Texas Rule of Appellate Procedure 42.1(a)(1) states:

(a) On Motion or By Agreement. The appellate court may dispose of an appeal as follows:
(1) On Motion of Appellant. In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.

Tex.R.App. P. 42.1(a)(1).

Appellant has complied with the requirements of Rule 42.1(a)(1). The Court has considered this cause on the Appellant’s motion and concludes the motion should be granted and the appeal should be dismissed. We therefore dismiss the appeal.


text:
    HOTEL PASO DEL NORTE, INC. d/b/a Camino Real Hotel, Appellant, v. Angelita NUNEZ, Appellee.
    No. 08-05-00334-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 10, 2005.
    Kurt H. Kuhn, Brown McCarroll, L.L.P., Austin, for appellant.
    George P. Andritsos, El Paso, for appel-lee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Pending before the Court is the Appellant’s unopposed motion to dismiss this appeal. Texas Rule of Appellate Procedure 42.1(a)(1) states:

(a) On Motion or By Agreement. The appellate court may dispose of an appeal as follows:
(1)On Motion of Appellant. In accordance -with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.

TexRApp. P. 42.1(a)(1).

Appellant has complied with the requirements of Rule 42.1(a)(1). The Court has considered this cause on the Appellant’s motion and concludes the motion should be granted and the appeal should be dismissed. We therefore dismiss the appeal.


author: KEM THOMPSON FROST, Justice.

text:
    Jerry Wayne HUDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00483-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 2005.

      Mary Connealy Acosta, Houston, for appellant.
    Bridget Holloway, Houston, for state.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   SUBSTITUTE OPINION

KEM THOMPSON FROST, Justice.

Appellant, Jerry Wayne Hudson, was convicted of assault upon a family member. He asserts six issues on appeal: (1) the trial court erred by admitting hearsay statements in violation of appellant’s rights under the Confrontation Clause; (2) the trial court erred by admitting hearsay statements under the excited-utterance exception to the hearsay rule; (3) the trial court erred by denying appellant’s motion for mistrial after the State introduced evidence of extraneous offenses; (4) the trial court submitted an erroneous jury charge; and (5)-(6) the evidence is legally and factually insufficient to support the conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of May 27, 2003, Pasadena Police Officers J.M Gonzales and Joseph Phillips responded to an assault call. Wy-nona Edwards, the complainant, was sitting in front of a house and her face was swollen around her eye and nose. There was fresh blood on her shirt. Edwards appeared visibly shaken and was crying and upset. She told the officers that appellant had punched her and thrown her into a dumpster. She also told them appellant was her common-law husband. Officer Phillips testified that Edwards was intoxicated, but she was able to speak coherently while explaining what had happened.

Emergency Medical Technician (“EMT”) Monroe Cooper arrived less than a half hour after the police officers. At trial, he testified that the injuries to Edwards’s face were consistent with an assault. He also testified that he noticed the odor of alcohol on Edwards and that she was very intoxicated, but he stated that her facial injuries were not consistent with falling down. After Cooper began to treat Edwards’s injuries, Officers Gonzales and Phillips went to appellant’s apartment. Appellant voluntarily came to the door but was generally uncooperative in answering the officers’ questions and denied all allegations of assault. The officers placed appellant under arrest.

After Edwards was transported to a hospital, Dr. Jason Bradt examined her injuries and diagnosed her with a fractured orbital bone and fractured ribs, consistent with an assault. Edwards also had a blood-alcohol concentration of 0.259. Dr. Bradt testified at trial that he believed Edwards referred to appellant as her “boyfriend” when identifying the person who assaulted her, but that he had not documented this reference.

Appellant was charged by indictment with assault upon a family member. See TEX. PEN. CODE ANN. § 22.01(b)(2) (Vernon 2003). Because appellant had pleaded guilty to another family-assault offense in April 2003, appellant faced a third-degree felony conviction rather than a Class A misdemeanor. See id. Appellant pleaded “not guilty.” Edwards did not testify at appellant’s trial. A jury found appellant guilty, and the trial court assessed punishment at eight years’ confinement in the Texas Department of Criminal Justice, Institutional Division.

II. ANALYSIS

A. Did the trial court err by admitting hearsay statements under the excited-utterance hearsay exception?

In his second issue, appellant argues that the trial court erred by admitting the hearsay testimony of EMT Cooper and Officers Phillips and Gonzalez. Specifically, appellant challenges the admissibility of the portions of these three witnesses’ statements in which they testified that Edwards told them that appellant was her common-law husband and that he had punched her in the eye, grabbed her, and put her in a dumpster. The trial court admitted their testimony under the excited-utterance exception to the hearsay rule in Texas Rule of Evidence 803(2). See TEX. R. EVID. 803(2). Appellant argues that their testimony was not admissible under this exception. See id.

Whether an out-of-court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court’s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). We are only to determine whether the record supports the trial court’s ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). We will reverse only when “the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.’ ” Zuliani, 97 S.W.3d at 595 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992)).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). For hearsay to be admissible, it must fit into an exception provided by statute or the Rules of Evidence. TEX. R. EVID. 802. An excited utterance under Rule 803(2) is one such exception. TEX. R. EVID. 803(2).

An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” TEX. R. EVID. 803(2). For hearsay to be admitted under this exception, the proponent must predicate the statement by showing the following: (1) the statement was a product of a startling occurrence that produced a state of nervous excitement in the declarant and rendered the utterance spontaneous; (2) the state of excitement dominated the de-clarant’s mind such that there was no time or opportunity for him to contrive or misrepresent; and (3) the statement related to the circumstances of the occurrence preceding it. See Jackson v. State, 110 S.W.3d 626, 633 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd).

When determining whether a hearsay statement is admissible as an excited utterance, a reviewing court may consider the amount of time that elapsed between the startling event and the statement. Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.2001). It is not dispos-itive that the statement was separated by a period of time from the startling event; it is only a factor to consider in determining if the statement is admissible under the excited-utterance hearsay exception. Zuliani, 97 S.W.3d at 596. The critical factor to consider when determining if a statement is an excited utterance is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.’ ” Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992)). A reviewing court must decide if the statement was made “under such cir-cumstanee as would reasonably show that it resulted from impulse rather than reason or reflection.’ ” Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App.1964)).

Appellant argues that Edwards’s statements to EMT Cooper and Officers Phillips and Gonzalez are not admissible as excited utterances because she was intoxicated at the time. Appellant contends that Edwards’s intoxication calls into question whether her mind was dominated by a state of excitement such that there was no time or opportunity for her to contrive or misrepresent. However, the three witnesses testified that Edwards was visibly shaken and highly upset when they arrived within five minutes of receiving the assault call. Appellant does not cite, nor have we found, any authority to support appellant’s contention that Edwards’s intoxication would make her statement more likely a product of reason and reflection than a product of an exciting event. We conclude the trial court did not abuse its discretion in admitting the testimony of EMT Cooper and of Officers Phillips and Gonzalez under the excited-utterance hearsay exception. Accordingly, we overrule appellant’s second issue.

B. Did the trial court err by admitting hearsay statements in violation of appellant’s rights under the Confrontation Clause?

In his first issue, appellant contends that even if Edwards’s statements to EMT Cooper and to Officers Phillips and Gonzalez were admissible as excited utterances, they were testimonial hearsay, and thus, their admission violates his Sixth Amendment right to confrontation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court made a distinction between testimonial and nontestimonial hearsay statements, holding that testimonial hearsay statements are inadmissible under the Confrontation Clause unless the declarant is unavailable and the accused has had an opportunity to cross-examine the declarant. Id. at 53-54, 59, 68-69, 124 S.Ct. at 1365, 1369, 1374. This court’s recent decisions interpreting Crawford have held that testimonial statements include a declar-ant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant reasonably would expect that her responses might be used in future judicial proceedings. See Tyler v. State, 167 S.W.3d 550, 553-54 (TexApp.-Houston [14th Dist.] 2005, pet. filed.); Spencer v. State, 162 S.W.3d 877, 880 (Tex.App.Houston [14th Dist.] 2005, pet. filed).

Statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial. See Spencer, 162 S.W.3d at 881; see also Key v. State, 173 S.W.3d 72, 75-77 (Tex.App.-Tyler 2005, pet. ref'd.). Edwards volunteered information after police officers responded to an assault call. The officers were not conducting structured questioning in an investigative setting; they merely were trying to ascertain what had happened. There is no reason to believe that Edwards, who was in a visibly upset and shaken condition, reasonably expected her statements to be used in a judicial setting. The officers heard these statements during their initial assessment of a crime scene. Edwards’s statements to Officers Phillips and Gonzalez and to EMT Cooper are not testimonial, and the trial court’s admission of the statements did not violate appellant’s rights under the Confrontation Clause. Accordingly, we overrule appellant’s first issue.

C. Did the trial court abuse its discretion in denying appellant’s motion for a mistrial?

In his third issue, appellant contends the trial court erred in denying his motion for a mistrial after Dr. Bradt testified that Edwards told him of repeated beatings in the days preceding the incident. During his testimony, Dr. Bradt revealed that Edwards had mentioned several assaults in the days leading up to May 27, 2003. Appellant objected to Dr. Bradt’s testimony. The trial court sustained his objection, instructed the jury to “disregard the last response and not consider it whatsoever,” but denied appellant’s motion for a mistrial. Appellant argues that Dr. Bradt improperly injected extraneous offenses that inflamed the minds of the jury such that the trial court’s instruction to disregard could not cure the harm.

We review a trial court’s denial of a motion for a mistrial under an abuse-of-discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App.1999); Herrero v. State, 124 S.W.3d 827, 836 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Generally, a prompt instruction to disregard will cure error resulting from an improper question and answer regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000); see also Whitaker v. State, 977 S.W.2d 595, 600 (Tex.Crim.App.1998) (instruction cured error when witness testified that appellant was physically and mentally abusive toward her); Paster v. State, 701 S.W.2d 843, 848 (Tex.Crim.App.1985) (instruction rendered testimony concerning appellant’s involvement in two extraneous murders harmless); Herrero, 124 S.W.3d at 836 (instruction cured error when witness stated he was testifying in exchange for government protection from death threat by appellant). This court previously has considered whether the prosecutor solicited the improper testimony, see Drake v. State, 123 S.W.3d 596, 604 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd), and whether the jury heard similar evidence, see Herrero, 124 S.W.3d at 836, as factors in determining whether the trial court erred in denying a motion for a mistrial.

After reviewing the record, we conclude the trial court did not abuse its discretion in denying appellant’s motion for a mistrial because the improper testimony was not clearly calculated to inflame the jurors’ minds nor was it of such a character as to suggest the impossibility of withdrawing the impression left upon the jury. The State did not solicit the improper testimony; rather, it was a nonrespon-sive answer from an expert witness reading from his notes to refresh his memory. The trial court’s instruction to disregard was prompt, unequivocal and forceful, fully sufficient to cure any harm from any impression left upon the jury. Additionally, the trial court specifically had instructed the jurors during voir dire that they were to separate prior incidents from the charged assault. We conclude that the trial court did not abuse its discretion by denying a mistrial after Dr. Bradt’s mention of the previous assaults. Accordingly, we overrule appellant’s third issue.

D. Did the trial court err by not properly instructing the jury on the definitions of “consanguinity” and “affinity”?

In his fourth issue, appellant contends thát the jury charge should have contained the definitions of “consanguinity” and “affinity” as contained in the Texas Government Code. See TEX. GOV’T CODE ANN. §§ 573.022, 573.024 (Vernon 2004). Assault of a family member becomes a third-degree felony only upon proof that a person assaulted a family member and that person previously was convicted of assaulting a family member. TEX. PEN. CODE ANN. § 22.01(b)(2). To prove a defendant assaulted a family member, the State must establish that the defendant and the complainant are members of the same family. See id. Family members include people related by consanguinity or affinity, as determined under sections 573.022 and 573.024 of the Texas Government Code, former spouses, parents of the same child, or a foster child and foster parent. TEX. FAM. CODE ANN. § 71.003 (Vernon 2002); TEX. PEN. CODE ANN. § 22.01(e)(1).

In this case, the jury charge tracked the statutory definition of “family,” but it did not provide the statutory definitions of either “consanguinity” or “affinity.” Appellant did not object to the jury charge. Therefore, error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). First, this court must determine whether the jury charge is erroneous. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996). If it is, then the court must determine whether the error in the charge resulted in egregious harm. Id.

Generally, the jury charge need not define any terms which are not statutorily defined. See Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996). However, a trial court’s charge should contain a definition of any legal phrase that the jury necessarily will use in properly resolving that issue. Lindsay v. State, 102 S.W.3d 223, 230 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Id.

The jury charge included the statutory definition for “family,” which includes “individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, [and] individuals who are former spouses of each other_” TEX. FAM. CODE ANN. § 71.003. However, the jury charge did not contain the statutory definitions for “consanguinity” and “affinity.” Because these terms have statutory definitions, the trial court erred in failing to include the definitions in the charge. See Lindsay, 102 S.W.3d at 230.

Appellant further asserts that the jury charge should have defined the elements of common-law marriage because that was the family relationship upon which the State relied for conviction. Because common-law marriage was an issue “applicable to the case,” appellant argues the omission of the definition of common-law marriage was also error. See TEX. CODE CRIM. PROC. ANN. Art. 36.14 (Vernon 2004); see also Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998). Presuming without deciding that the omission of the definition of “common-law marriage” from the jury charge was also error, we must determine whether appellant has demonstrated egregious harm that would warrant reversal. Almanza, 686 S.W.2d at 171. The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Errors resulting in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory. Hutch, 922 S.W.2d at 171.

In this case, appellant did not suffer egregious harm as a result of the omitted definitions. The jury heard evidence that appellant was Edwards’s common-law husband. Although the meaning of the words “consanguinity” and “affinity” may not be commonly known, it is commonly understood that one’s spouse is a member of one’s family. Even without the definitions of “common-law marriage,” “consanguinity,” and “affinity,” a reasonable juror could have concluded that Edwards was appellant’s family member. Even though the jury charge contained error, we conclude it did not result in egregious harm affecting the very basis of the case or depriving appellant of a valuable right. See id. Accordingly, we overrule appellant’s fourth issue.

E. Is the evidence legally and factually sufficient to support appellant’s conviction for assaulting a family member?

In his fifth and sixth issues, appellant contends the evidence is legally and factually insufficient to prove that he committed assault against a family member. Specifically, appellant contends that the evidence is insufficient to show that Edwards was a member of his family. As stated above, assault of a family member becomes a third-degree felony only upon proof that the accused previously was convicted of assaulting a family member. TEX. PEN. CODE ANN. § 22.01(b)(2). To prove appellant assaulted a family member, the State was required to establish that appellant and Edwards are related by consanguinity or affinity, former spouses, parents of the same child, or a foster child and foster parent. See TEX. FAM. CODE ANN. § 71.003 (Vernon 2004); TEX. PEN. CODE ANN. § 22.01(b)(2), (e)(1).

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the charging instrument, and adequately describes the particular offense for which appellant was tried. Id. The hypothetically correct jury charge in this case would have contained the statutory definitions of “consanguinity” and “affinity.” See TEX. FAM. CODE ANN. § 71.003; TEX. GOV’T CODE ANN. §§ 573.022, 573.024 TEX. PEN. CODE ANN. § 22.01(b)(2), (e)(1).

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellants’ evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).

The evidence is legally sufficient to convict appellant of assaulting a family member. The State was required to prove that appellant intentionally, knowingly, or recklessly caused Edwards, a family member, bodily injury. See TEX. PEN. CODE ANN. § 22.01(b)(2). Edwards’s statements to the police officers established that appellant was responsible for the harm and that Edwards was her common-law husband. On this evidence, a reasonable trier of fact could have concluded that appellant and Edwards were family members. Viewing all evidence in a light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant’s conviction. Accordingly, we overrule appellant’s fifth issue.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire 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). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

The evidence is factually sufficient to establish that Edwards was a member of appellant’s family. Appellant asserts that Edwards did not know the legal definition of common-law marriage and was highly intoxicated when she told police that appellant was her common-law husband. Appellant asserts that, based on these circumstances, Edwards’ testimony has questionable credibility and should have raised a reasonable doubt in jurors’ minds. The only evidence contrary to a finding of family relation is the testimony of Dr. Bradt, stating that he “believed” Edwards referred to appellant as her “boyfriend.” Viewing the evidence in a neutral light, a finding that Edwards was a member of appellant’s family is neither so weak as to be clearly wrong nor against the great weight and preponderance of evidence. See Zuniga, 144 S.W.3d at 484. Accordingly, we overrule appellant’s sixth issue.

Having overruled all six of appellant’s issues on appeal, we affirm the trial court’s judgment.

      . We withdraw the opinion issued in this case on September 8, 2005, and we issue this substitute opinion in its place.

        . Both the State and appellant attempt to draw support from the conflict over whether questioning of a victim in the hospital is testimonial hearsay. Compare Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. ref'd) (statements given at hospital following questioning are nontestimonial), cert. denied, - U.S. -, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005), with Wall v. State, 143 S.W.3d 846, 851 (Tex.App.-Corpus Christi 2004, pet. ref d) (statements given at hospital following questioning are testimonial). We need not address this conflict as the complainant (Edwards) was at the crime scene, not the hospital, when she made the statements in question. individual.” TEX. GOV’T CODE ANN. § 573.024 (Vernon 2004).

      . Texas Government Code § 573.022(a) states that "[t]wo individuals are related to each other by consanguinity if: (1) one is a descended of the other; or (2) they share a common ancestor.” TEX. GOV'T CODE ANN. § 573.022 (Vernon 2004).

      . Texas Government Code § 573.024(a) states that "[t]wo individuals are related to each other by affinity if: (1) they are married to each other; or (2) the spouse of one of the individuals is related by affinity to the other


text:
    Towner LEEPER, Appellant, v. R.F. HAYNSWORTH and Gary Crossland, Appellees.
    No. 08-05-00077-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 17, 2005.
    John Leeper, El Paso, for appellant.

      Christopher R. Johnston, Firth, Johnson, Martinez, El Paso, for appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from default judgment entered against a plaintiff. In the instant case, the default judgment was entered against Appellant, Towner Leeper, in favor of Appellees, R.F. Haynsworth and Gary Crossland, defendants below. On appeal, the sole issue is whether a default judgment can be entered against a plaintiff.

I. PROCEDURAL BACKGROUND

This lawsuit arises out of a breach of lease claim which Appellant originally filed on May 5, 2000. The trial court set Appellant’s case to be heard on December 1, 2004. On October 18, 2004, Appellees’ attorney mailed a letter by certified mail, return receipt requested to Towner Leeper at 744 Cinnamon Teal, El Paso, Texas 79932, notifying him that the case had been set for trial on December 1, 2004 at 1:30 p.m. On the “return receipt” stamped October 19, 2004, Appellant’s wife LaFonne Leeper’s signature appears.

Appellant failed to appear at the bench trial on December 1, 2004. After announcing his name three times in the court’s hallway, Appellees orally moved for a default judgment, which the trial granted. The trial court granted Appellees’ motion. On December 8, 2004, counsel for Appel-lees mailed a letter by certified mail, return receipt requested to Towner Leeper at 744 Cinnamon Teal, El Paso, Texas 79932 notifying him that the Court had entered a final judgment against Appellant. By this time, Appellant had moved to Denver, Colorado. Upon receiving notice of the final default judgment, Appellant filed a timely motion to vacate the final judgment. On January 4, 2005, the same day the motion to vacate was filed, Appellant gave the first notice of his address change to Appellees’ counsel. On January 7, 2005, attorney John Leeper entered an appearance on behalf of Town-er Leeper. On February 9, 2005, the trial court held a hearing on Appellant’s motion to vacate default judgment. Although not physically present at the hearing and over Appellees’ objection, the trial court allowed Appellant to testify via telephone from his home in Denver. He testified that he was unaware of the December 1, 2004 trial setting and did not become aware of it until he received notice of the default judgment entered against him. Immediately upon learning this, he filed a motion to vacate. He adamantly asserted that his failure to attend the trial was not intentional or due to conscious disregard. After living in El Paso for forty years and having retired from his tax law practice sometime in 2002, he began the process of moving to Denver, leaving his home in a state of disarray. He testified that he never saw the notice of trial setting and that his wife never showed him such notice. Furthermore, he does not nor ever did consider his wife to be his agent for purposes of this lawsuit. He represented that he was ready to proceed at trial if the trial court vacated his default judgment and that he is counting on the resolution of the case to provide him with funds to five on during his retirement.

Appellees’ counsel at trial argued that (1) since none of Appellant’s testimony was proper, Appellant failed to meet his burden, and (2) because Mrs. Leeper’s signature appeared on the “return receipt,” Appellant had notice of the trial setting and that this was all that was required in order for the court to grant the default judgment. Appellant, on the other hand, argued that the proper procedures under Tex.R. Civ. P. 165a(l) had to be utilized. The trial court denied Appellant’s motion to vacate. This appeal follows.

II. DISCUSSION

On appeal, Appellant argues that the trial court erred as a matter of law in granting a take-nothing judgment against Appellant for failing to appear at trial because the only ruling that the trial court could make was a dismissal for want of prosecution because Appellant was the plaintiff in this case. Appellant cites to this Court’s opinion, Slaughter v. Clement, 64 S.W.3d 448 (Tex.App.-El Paso 2001, no pet.) to support his contention. We agree with Appellant’s assertion.

In Slaughter, the question this Court had to decide was whether a moving party may be defaulted. See Slaughter, 64 S.W.3d at 448-49. We held in that case that a court may not default a plaintiff/petitioner, but rather they may only, after notice and hearing, dismiss their suit for failure to appear. Id. at 450.

A trial court’s authority to dismiss for want of prosecution stems from Tex.R. Crv. P. 165a as well as a court’s inherent powers. See Tex.R. Crv. P. 165a; see also Slaughter, 64 S.W.3d at 450 (citing Villarreal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630 (Tex.1999)). Tex.R. Crv. P. 165a states in relevant part the following:

A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket.

If the Court acts pursuant to its inherent authority, it may not dismiss a suit without providing the moving party notice and an opportunity to be heard as well. Slaughter, 64 S.W.3d at 450.

Texas law does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit but rather the trial court may only dismiss the claim for want of prosecution. See Smock v. Fischel, 146 Tex. 397, 400, 207 S.W.2d 891, 892 (1948); see also Slaughter, 64 S.W.3d at 450; see also State v. Herrera, 25 S.W.3d 326, 327 (Tex.App.-Austin 2000, no pet.). A judgment adjudicating against the plaintiffs merits is voidable. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Although Rule 165a allows a trial court to dismiss for want of prosecution based on a plaintiffs failure to appear, the trial court may not adjudicate the merits of a plaintiffs claim upon such failure to appear. See Tex.R. Civ. P. 165a; Herrera, 25 S.W.3d at 327.

We find that the order entering a take-nothing default judgment against Appellant upon his failure to appear for trial was an adjudication on the merits. Appellant’s Issue is sustained.

Having sustained Appellant’s sole declared issue on review, we reverse and remand the cause to the trial court for further proceedings in accordance with this opinion.

      . In his brief, Appellant raises three issues. In Issue No. One, Appellant asserts that the trial erred as a matter of law in granting a final "take-nothing” default judgment against Appellant as a result of his failure to appear at trial. In Issue No. Two, he contends the trial court abused its discretion by failing to provide him with notice of its intention to dismiss his case with prejudice and an opportunity to be heard prior to dismissing his case with prejudice. In Issue No. Three, Appellant argues the trial court abused its discretion in failing to reinstate his case because his failure to appear at the trial setting was not intentional or the product of conscious indifference but was the result of accident or mistake. At oral argument, Appellant’s counsel made it clear to this Court that the sole issue was whether default judgment was properly granted against Appellant, the plaintiff in this case.

      . The trial court’s order read as follows:
      On this day, came the above matter for final trial. No jury having been demanded, all issues were submitted to the Court. Defendants R.F Haynsworth and Gary Crossland duly appeared by and through their attorneys of record, Christopher R. Johnston and S. Crawford Kerr, Jr. Plaintiff Towner Leeper although duly notified of the trial setting did not appear. The Court determined it had jurisdiction over the subject matter and the parties to this proceeding. Defendant moved for default judgment, and after considering the pleadings and papers on file in this case, the Court grants judgment for the Defendants.
      The Court finds:
      1. This case has been on file since 2000.
      2. Plaintiff was given notice of the trial setting and failed to appear, and wholly made default.
      THEREFORE, the Court grants judgment for Defendants and that Plaintiff Towner Leeper take nothing.
      It is further ORDERED that the Defendants recover from Plaintiff court costs, and that execution issue for this judgment.
      The' Court denies all relief not expressly granted.