author: WANDA McKEE FOWLER, Justice.

text:
    David Wayne BLACK, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00870-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 2006.

      Jerald Kaplan Graber, Houston, for appellants.
    Peyton Peebles, III, Houston, for appel-lees.
    Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
   OPINION

WANDA McKEE FOWLER, Justice.

A jury found appellant, David Wayne Black, guilty of burglary of a building. Appellant pleaded true to two enhancement paragraphs. The jury assessed punishment at twelve and one-half years’ imprisonment and a $100 fine. On appeal, appellant raises two points of error: (1) the court erroneously failed to instruct the jury on the lesser-included offense of criminal trespass; and (2) the evidence was legally and factually insufficient to convict. We affirm.

Factual and Procedural History

On November 26, 2003, an alarm tripped, notifying a Spring Branch I.S.D. dispatcher that someone had entered schoolroom 18 at a local elementary school. The dispatcher then radioed a Spring Branch I.S.D. officer and a constable. Both responded to the call and went to the school. The alarm continued to indicate someone was in the room until the officers arrived. When they arrived, it was approximately 1:00 a.m. Officers found appellant four to five feet away from the broken window of room 18. At all times, appellant was cooperative and did not attempt to escape.

Once appellant was in custody, one of the officers searched the school. Part of the purpose behind this search was to test the alarm system. No one was found in the school and the alarm system was functioning normally. The school is completely fenced in and though there are several gates, only one was open at the time of the burglary. Room 18 is located in an area of the school that has no outlet. The officers searched this area and no one else was present.

One of the officers noticed that one of the pieces of glass from the window had a shoe print on it. Appellant willingly gave his shoes to the officers for a comparison. After comparison, the two officers originally at the scene, and another who came later, determined that appellant’s shoe had made the print. The officers also found a CD player on the ground outside of room 18, and a computer system stacked and “ready to go” on the window ledge inside the room. No prints of any kind were found on the computer, the CD player, or anywhere inside the classroom.

Appellant was indicted for burglary of a building. Before the trial leading to this appeal, the State previously tried appellant for this offense. However, the jury in that case could not reach a verdict. On retrial, a different jury convicted appellant. After pleading true to two enhancement paragraphs, the jury sentenced appellant to twelve and one-half years’ imprisonment and a $100 fine. Before the jury received instructions in the guilt-innocence phase of the trial, appellant requested an instruction on the lesser-included offense of criminal trespass. The court denied that request.

Analysis

I. Lesser-included Offense

A court will not instruct the jury on a lesser-included offense unless a two-prong test is satisfied. First, the lesser-included offense must be included in the proof necessary to establish the offense charged. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). Second, some evidence must exist in the record that would permit the jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense. Id. at 673. The Court of Criminal Appeals, along with this court, has declared certain crimes to be lesser-included offenses of other crimes. Conversely, we have held also that some crimes can never been lesser-included offenses of other crimes. The latter is true here.

As an initial matter, the State argues in its briefing that it is unclear whether appellant is asking for the lesser-included offense of criminal trespass of a building, or of property. Because appellant’s briefing focuses on facts related only to being on the property illegally, we understand his argument to be only that criminal trespass of property can be a lesser-included offense of burglary of a building. However, we already have rejected appellant’s argument. See Lowe v. State, 2001 WL 726344, *2 (Tex.App.-Houston [14th Dist.] June 28, 2001, no pet.) (per curiam) (not designated for publication); see also Johnson v. State, 665 S.W.2d 554, 556 (Tex. App.-Houston [1st Dist.] 1984, no pet.).

Appellant directs our attention to cases stating generally that criminal trespass is a lesser-included offense of burglary. See Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App.1975); Wyble v. State, 764 S.W.2d 927, 929 (Tex.App.-Amarillo 1989, pet. ref'd) (citing Day). Those cases are not controlling here. We do not disagree that criminal trespass of a building is a lesser-included offense of burglary of a building — the situation in Day. 532 S.W.2d at 306 (laying out the elements of criminal trespass as including remaining on property or in a building). Yet, as we and our sister court have explained, the Legislature’s use of the word “building” as opposed to “property” in the criminal code is not meaningless. See Lowe, 2001 WL 726344 at *2; Johnson, 665 S.W.2d at 556. The legislature did not intend for trespass of property surrounding a building to be a lesser-included offense of burglary of a building because the term “building” encompasses only the structure, not the surrounding property. See Lowe, 2001 WL 726344 at *2; Johnson, 665 S.W.2d at 556. Thus, because an element of burglary of a building does not include the same entry element of the lesser offense of criminal trespass of property, the latter cannot be a lesser-included of the former. See Johnson, 665 S.W.2d at 556. Appellant cannot satisfy the first prong of Rousseau. Accordingly, we overrule appellant’s first point of error.

II. Sufficiency of the Evidence

In his second point of error, appellant raises both a legal and factual sufficiency challenge. We take each in turn.

A. Legal Sufficiency

In a legal sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. Viewing the evidence through the appropriate prism, we hold the evidence was legally sufficient.

Section 30.02 of the Texas Penal Code defines burglary of a building as entering a building not then open to the public without effective consent and with the intent to commit theft. Tex. Pen.Code § 30.02(a)(1). Evidence the State presented at trial was undisputed. The school’s assistant principal testified that the school is not open to the public at night, the school is entirely fenced in, and appellant did not have permission to be on the premises, much less in the building. Appellant was outside of the broken window and no other persons were found on the property or in the school. Testimony from dispatchers and officers indicated that someone had been in only room 18 until the officers arrived and exited as officers approached the building. Put together, the evidence showed appellant had been in room 18, by himself, and had exited the room just before officers found him. Additionally, appellant’s shoe print was found on broken glass — the glass broken to gain entry into the school. Just inside of the window was a computer system, stacked and “ready to go.” Viewed in the light most favorable to the verdict, the evidence is legally sufficient to prove appellant’s illegal entry into a building with the intent to commit theft of school property.

B. Factual Sufficiency

We also employ familiar standards of review to analyze appellant’s factual sufficiency challenge: reviewing all of the evidence to determine whether the jury was “rationally justified in finding guilt beyond a reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). We view the evidence in a neutral light, without the prism of the light most favorable to the verdict. Id. at 481. The evidence may be factually insufficient in two ways: (1) though legally sufficient, it may be too weak to support a finding of guilt beyond a reasonable doubt; and (2) when balanced against the evidence supporting the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. As an appellate court, we defer to the jury’s role as fact finder, particularly in areas of witness credibility, demeanor, and the weight to be given conflicting testimony. Id. at 481 (“Deference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses.”).

As an initial matter, there is no contrary evidence in this case. Thus, we view the evidence to determine only if it were too weak to support a finding a guilt. We hold that it was not too weak. We have outlined already the evidence supporting the verdict. Although appellant accurately presents a host of additional pieces of evidence by which the State could have proved the crime, he does nothing to undermine the evidence actually presented at trial. Specifically, appellant notes that he was not in possession of any stolen items when found, there is no direct evidence that a human was ever in the schoolroom — as opposed to an animal of some sort — , and there was no evidence as to whether the computer on the inside window ledge or the equipment outside on the ground was school property. Further, appellant notes that a previously-empaneled jury was unable to reach a verdict. Although convicted by the second jury, it was not until it sent out several notes asking a series of questions.

Put together, appellant’s argument is that the State’s case was simply too weak. We disagree. Appellant does not argue— as he could not successfully — that circumstantial evidence cannot support a guilty verdict. However, he asks us to resolve the case differently than the jury, which evidently seriously questioned the evidence in this ease. Yet, the jury did resolve those questions and ultimately convicted appellant. We will not, based upon a cold record, determine that the jury did so wrongly. Indeed, it is the jury’s role to weigh the evidence and determine whether it is enough. The jury did so here and we hold the evidence was factually sufficient to support the verdict. We overrule appellant’s second point of error.

Conclusion

We overrule both of appellant’s points of error and affirm the judgment of the trial court.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    BAROID EQUIPMENT, INC. f/k/a Shaffer, Inc. and Varco Shaffer Company, Appellants, v. ODECO DRILLING, INC.; Odeco Enterprises, Inc.; Diamond-M Odeco, Ltd.; and Rexnord Corporation, Appellees, Odeco Drilling, Inc.; Odeco Enterprises, Inc.; and Diamond-M Odeco, Ltd., Appellants, v. Baroid Equipment, Inc. f/k/a Shaffer, Inc. and Varco Shaffer Company, Appellees, Rexnord Corporation, Appellant, v. Baroid Equipment, Inc. f/k/a Shaffer, Inc. and Varco Shaffer Company, Appellees.
    No. 01-99-00658-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 13, 2005.
    Rehearing Overruled Feb. 2, 2006.

      Charles W. Kelly, Kelly, Sutter, Mount & Kendrick, Jack G. Carnegie, Deborah A. Greenleaf, Tom Bayko, Bayko, Gibson, Carnegie, Hagan, Schoonmaker & Meyer, Houston, G. Luke Ashley, Thompson <& Knight, Dallas, for Appellants.
    J. Douglas Sutter, John D. Parker, Kelly, Sutter, Mount & Kendrick,'P.C., Houston, Scott Patrick Stolley, Thompson Knight, L.L.P., Dallas, for Appellees.
    Panel consists of Chief Justice RADACK and Justices NUCHIA and BLAND.
   OPINION

SHERRY RADACK, Chief Justice.

This is an appeal from a bench trial, after which the trial court awarded contract damages and attorney’s fees to Odeco Drilling, Inc., Odeco Enterprises, Inc., and Diamond-M Odeco, Ltd. (collectively, “Odeco”) against Baroid Equipment, Inc., itn/a Schaffer, Inc., and Vareo Shaffer Company (collectively, “Baroid”). The trial court also awarded Baroid damages and attorney’s fees on its indemnity cross-claim against a co-defendant, Rexnqrd Corporation (“Rexnord”). The primary issue presented by the appeal is whether Odeco, the operator of a semi-submersible drilling rig and purchasing agent for the rig builder, entered into an oral contract with Baroid, an equipment supplier to the rig, that created warranties running to Odeco, which were greater than,' and in addition to, the warranties Baroid made to the rig builder, who was the actual purchaser of thé equipment.' '

BACKGROUND

Odeco owns and operates semi-submersible drilling rigs. This case involves a component of those rigs called a chain riser tensioner system (“CRTS”). A riser is an enclosed system between the ocean floor and the bottom of the rig that houses the drill pipe and related accessories so that they are insulated from the water. The riser is a series of 50-foot pipes that are attached to the blowout preventer, which sits on the ocean floor. Because rigs are subject to the heave of the ocean, it is necessary to keep the riser pipe taut by maintaining tension on it. The tension is created by means of a riser tensioner system, which allows the rig to move up and down while maintaining constant tension on the riser.

Early riser tensioning systems employed wire rope. However, around 1980, the NL Shaffer division of NL Industries, Inc. (hereinafter, “Baroid”) began marketing a tensioner system that used a chain, rather than a wire rope (CRTS).

A. Odeco, Baroid, and the OCEAN ODYSSEY

Odeco began to discuss using a CRTS in 1979 or 1980, in connection with one of its semi-submersible rigs, the OCEAN ODYSSEY. Odeco had been doing business with Baroid and its predecessor companies, since 1954. Odeco viewed chains as an alternative to wire rope for its tension-ers because of the increased depth rating required for ocean-going rigs and because wire rope was more difficult to store on the rigs. Odeco, with Baroid’s assistance, prepared performance specifications for the OCEAN ODYSSEY’s chain riser ten-sioners and made calculations concerning the size and number of chain riser tension-ers needed. Although Odeco knew that a CRTS had never been manufactured before, it was satisfied with Baroid because Baroid had invented the concept of ocean heave compensation equipment.

Tom Bishop, a Baroid production planner, and later Baroid’s vice-president of sales, testified that, in 1980-81, he was assigned to the Odeco account. Odeco was the largest account in Baroid’s New Orleans office and a long-time Baroid customer. Both Bishop and his supervisor at the time, Vinny Barone, talked to Odeco about the advantages of chain riser ten-sioners. Those advantages included a five-year life expectancy, an ability to bend the chains over a smaller radius, and an ability to avoid the high stresses and prevent the slippage caused by wire rope. Additionally, chains weighed less than wire rope and were easier to inspect and maintain.

In 1981, Stanley Baleson, Baroid’s district manager in New Orleans, arranged for Baroid’s engineers to put on a major presentation about CRTSs for Odeco. At the presentation, Baroid touted the advantages of a CRTS, as set forth in Baroid’s catalog, which had been distributed to long-standing Baroid customers such as Odeco.

In February 1981, Baroid quoted Odeco a price for a CRTS to be placed on the OCEAN ODYSSEY. The OCEAN ODYSSEY was completed in 1983 and chartered to an oil company for drilling in the Gulf of Alaska. Because the CRTS was a new invention, there was no service history for chain riser tensioners before the OCEAN ODYSSEY went into service. The chains on the OCEAN ODYSSEY’s tensioners were manufactured by Whitney, a division of Dresser Industries. The Whitney chains failed shortly after the OCEAN ODYSSEY went into operation.

B. The OCEAN ALLIANCE

While the OCEAN ODYSSEY was under construction, Odeco became involved in the building of a second semi-submersible rig, the OCEAN ALLIANCE. Around 1980, British National Oil Company (hereinafter, “Britoil”) and Ben Line Steamers, Ltd. (hereinafter, “Ben Line”) began discussing the construction of a semi-submersible drilling rig. The rig was to be built according to a contract with Britoil. At the end of the term, the parties contemplated that Britoil and a contractor would each own a one-half interest in the rig. Britoil and Ben Line agreed that Odeco would serve as the contractor through Ben Odeco Limited, a company jointly owned by Ben Line and Odeco.

1. Ownership, Leasing, and Operation of the OCEAN ALLIANCE

The- construction and financing of the. OCEAN ALLIANCE involved creating a new company, St. Vincent Drilling Limited (hereinafter, “StVincent”), the shares of which were owned 50% by Britoil and 50% by Ben Odeco. The rig was actually ordered and owned by Lloyds Leasing Limited (hereinafter, “Lloyds Leasing”) and leased by St. Vincent. The contract between Lloyds Leasing and St. Vincent provided that, at the end of the lease term, St. Vincent could continue to lease the rig for a nominal amount or instruct Lloyds Leasing to sell the rig, with St. Vincent receiving the majority of the proceeds.

In December 1981, Britoil, Ben Odeco Limited, and St. Vincent entered into a joint venture agreement to build and operate the OCEAN ALLIANCE. Lloyds Leasing chartered the OCEAN ALLIANCE to St. Vincent. In a three-party agreement, St. Vincent subcharted the OCEAN ALLIANCE to Britoil. Britoil and Ben Odeco Limited entered into an operating ■ agreement under which ' Ben Odeco Limited would operate the OCEAN ALLIANCE. Ben Odeco Limited’s two shareholders, Odeco, Inc. and Ben Line, guaranteed Ben Odeco Limited’s performance to Britoil.

2. Construction of the OCEAN ALLIANCE

A number of shipyards were considered to construct the rig. The joint venture eventually selected Scott Lithgow Limited (hereinafter, “Scott Lithgow”) of Port Glasgow, Scotland, because Ben Odeco Limited had knowledge of the shipyard and its capabilities.

Oh December 30, 1981, Lloyds Lfeasing, as owner of the rig, contracted with Scott Lithgow, as rig builder, to construct, build, launch, test, and complete “one dynamically positioned column-stabilized self-propelled drilling unit” for a price of 88.6 million pounds sterling. Also on December 30, 1981, ■ Scott Lithgow and Odeco signed a letter agreement, which appointed Odeco as the agent for Scott Lithgow to purchase Owner’s Specified Equipment (OSE) for the rig, the OCEAN ALLIANCE.

On the same day, several other agreements and charterparties arose relating to the OCEAN ALLIANCE. Lloyds Leasing, Britoil, and St. Vincent entered into a supervision agreement under which Lloyds Leasing appointed St. Vincent to act as its representative under the shipbuilding agreement. St. Vincent, Odeco, and Bri-toil entered into sub-supervision agreement, under which St. Vincent delegated to Odeco the rights, powers, and duties as Lloyds Leasing’s representative during the construction of the OCEAN ALLIANCE.

Decisions about the kind of equipment to install on the OCEAN ALLIANCE were to be made jointly between Odeco and Britoil. If a disagreement arose, Bri-toil would make the decision because it was to pay for both the rig and its equipment. Britoil had substantial input into all equipment decisions. In general, Odeco made proposals to Britoil about the equipment and then, if necessary, Odeco and Britoil would discuss the matter and reach an agreement about what equipment to order.

Odeco, as the shipbuilder’s purchasing agent, acted to procure OSE, even though Scott Lithgow, the shipbuilder, purchased and paid for it. Odeco obtained bids, specified equipment, and did the normal things an owner does, independent of a shipyard, in buying the necessary equipment. Scott Lithgow paid the invoices upon Odeco’s approval.

In November 1981, Odeco personnel in Scotland sent a telex to Odeco personnel in New Orleans proposing the following ordering procedure with respect to the OCEAN ALLIANCE and stating the following:

1. Odeco would obtain Britoil or Ben Line consensus as required;
2. Odeco would issue purchase requisitions for internal approval authority; and
3. Purchase orders were to be typed by Odeco onto Scott Lithgow purchase order forms.

3. Purchase of the CRTS for the OCEAN ALLIANCE

The chain riser tensioners for the OCEAN ALLIANCE were OSE. Gary Egbert, a Baroid engineer who worked on CRTS design, testified that Western Gear, a competitor of Baroid, had also been asked to quote a price on a CRTS for the OCEAN ALLIANCE.

On September 29, 1981, Odeco sent telexes to Brown Brothers, Ltd., Western Gear, Veteo, and Baroid requesting bids on motion compensation equipment for the rig. According to the requests, the percentage of U.K. content on the equipment had to be stated, and, if a purchase order issued, the purchase order would be issued to an established United Kingdon company. Brown Brothers submitted a quote on October 16, 1981. In contrast to the telexes, which indicated that a bidding process would be followed, Odeco engineer, Terry Petty, testified that the decision to purchase Baroid’s CRTS was made even before Lloyds Leasing executed the Scott Lithgow shipbuilding contract.

On August 10,1981, Tom Bishop, while a Baroid sales representative, wrote to Ralph Loomis, of Odeco, submitting Bar-oid’s bid on the OCEAN ALLIANCE project. The letter stated that the proposal was based upon, and subject to, “[Baroid’s] standard terms and conditions of sales.” According to the summary sheet, the quote included a drill string compensator, CRTS, guideline tensioner system, taut line ten-sioner system, 120 ton mooring system, flotation dolly system, and spare parts for such. The total price was $5,555,338.50.

On September 15, 1981, Baleson, another Baroid employee, wrote Loomis submitting “Rev. A” to Baroid’s quote on the OCEAN ALLIANCE. Again, the letter stated that the proposal was based upon, and subject to, “[Baroid’s] standard terms and conditions of sales.” The summary sheet section of the quote indicates the same type of equipment, but the total price had increased to $5,608,304.00.

On October 30, 1981, Baleson wrote an internal memorandum stating that Bar-oid’s prices for the “Odeco/BNOC D.P. Semi-Submersible Sub-Sea and Motion Compensation Packages” were considerably higher than that of the competition for the equipment quoted. He noted that, while Odeco was partial to Baroid, Britoil was not, because Britoil personnel had little experience with Baroid equipment. He recommended reducing the margins on Baroid’s prices, reducing the percentage of escalation, and offering a discount if the entire package was purchased. On December 9, 1981, Baleson wrote a letter to Odeco in New Orleans, offering Odeco a “time payment plan option” relating to the Baroid equipment quotations.

Baleson sent another letter to Odeco on January 13, 1982, responding to Odeco’s request for a cost analysis on the chain tensioners. Among other things, the letter stated:

(1) It was not farfetched to say that [Baroid] had more systems operating in the field than all of its competitors combined, and that [Baroid] had applied its experience to design a far superior chain tensioning system that would far offset the initial expense.
(2) Conservatively, the 160K chain ten-sioners would save the Ocean Alliance well over $2,000,000 in a five-year period.
(3) If the Ocean Alliance were outfitted with wire tensioners, and if the rig later required additional tension, there would be enormous complications that would not exist with chain tensioners.
(4) Baroid concluded that the 160K chain tensioner system initially cost more, but that it was not more expensive.

On January 25, 1982, Petty, as purchasing agent for Scott Lithgow, sent Baleson a telex stating that Baroid had been selected as the vendor to provide the motion compensator-drill string compensator and guideline tensioner system for the OCEAN ALLIANCE. The telex also' stated that a formal written purchase order would be issued on Scott Lithgow’s paper to Baroid’s United' Kingdom-registered company and that, “in addition to standard terms,” parts of Baroid’s “Rev. A” quotation and Baleson’s December 9, 1991 letter to Odeco would become part of the formal written purchase order.

On March 11, 1982, a 38-page purchase order was issued on Scott Lithgow letterhead to NL Shaffer Services of London, England — Baroid’s United Kingdom-registered company — for a 160K CRTS to be placed on the OCEAN ALLIANCE. Attached to the Scott Lithgow purchase order, and forming a part of it, were the September 15, 1981 letter from Baleson to Odeco,, the quote and its revision, the two letters dated December 9, 1981 and January 13, 1982 from Baroid to Odeco, and a two-page document entitled “Chain Ten-sioners” setting forth various advantages of chain riser tensioners. The Scott Li-thgow purchase order provided for eight CRTSs at a price of $2,896,034. The purchase order was signed by Petty of Odeco. Notes- on the first page, of the purchase order indicated that inquiries, correspondence, and data submissions were to be addressed to Odeco in New Orleans, “Attention: Petty,” and that invoices were to be addressed to Leslie Coventry of Scott Lithgow in Port Glasgow.,- The purchase order also stated the following:

Contractor [NL Shaffer Services of London] recognizes that the Company [Scott Lithgow] has-entered into this contract for the benefit of Lloyds Leasing Limited but that by virtue of the charterparty by way of demise The British National Oil Corporation will be the end user of the Vessel for which goods, materials, works or services are ordered hereunder and the Contractor agrees that this Contract including the guarantees and warranties (express or implied) contained in this Contract shall ensure for the benefit of, and shall be freely assignable to Lloyds Leasing Limited and The British National Oil Corporation.

On June 18,1982, Baroid, from its Houston offices, sent a letter to Odeco, in New Orleans, listing its proposed, modifications to the “British Shipbuilder’s Conditions of Purchase” that apparently accompanied the Scott Lithgow purchase order. Among other things, Baroid wanted to replace the Guarantee and Defects Liability clause in the -British Shipbuilders Conditions with a clause that closely followed its own standard terms and conditions.

There was no immediate response from Odeco to the June 18 letter. On July 12, 1982, Baroid sent another letter to Odeco stating that, because no formal response had been received, Baroid assumed that the modified terms were acceptable to Scott Lithgow and Odeco. On July 16, 1982, Petty of Odeco sent a telex to Baroid stating that Baroid’s standard terms and conditions, which were included in its quote, took precedence over the British Shipbuilders Conditions; therefore, it would not be necessary to modify the British Shipbuilders Conditions. Petty testified that Baroid’s terms and conditions applied to the purchase order.

The warranty in Baroid’s standard terms and conditions read as follows:

4. Warranty, Remedy, Disclaimer
[Baroid] warrants for a period of one year only from the date of shipment that the equipment of its own manufacture to be delivered hereunder shall be free of defects in materials and workmanship under normal use and service, and provided the equipment is used and maintained in accordance with instructions supplied by [Baroid], THISIS'[BAR-OID’s] SOLE AND EXCLUSIVE WARRANTY. If such a defect “in [Baroid] equipment” appears within one year from the date of shipment and Purchaser has given written notice of such defect within thirty days from the discovery thereof, [Baroid] will repair the part, or at its option replace the part by shipping a similar part FOB shipping point or at its option refund an equitable portion of the purchase price. [Baroid] may require the return to a designated [Baroid] location of the defective part transportation prepaid to establish the claim. No allowance will be made for repairs without [Baroid’s] written consent or approval. Said warranty applies only to equipment manufactured by [Shaffer]. Warranties on equipment manufactured by others, if any, are assigned to the Purchaser by [Baroid] (without recourse) at time of delivery. Any descriptions of the equipment, drawings, specifications, and any samples, models, bulletins, or similar material used in connection with this sale are for the sole purpose of identifying the equipment and are not to be construed as an express warranty that the equipment will conform to such description.... EXCEPT AS ABOVE SET FORTH, THERE SHALL BE NO OTHER WARRANTY OF FITNESS OR MERCHANTABILITY OR OTHER WARRANTY OR LIABILITY WHETHER EXPRESSED ORALLY OR IN WRITING OR IMPLIED IN FACT OR IMPOSED BY STATUTE. The purchaser’s sole and exclusive remedy, whether based upon warranty, contract or tort, including negligence, will be to proceed under this warranty. All liability of [Baroid] shall terminate one year from the date of shipment of the equipment.
5. Limitation of Liability
[Baroid] shall in no event be liable for special indirect, incidental or consequential damages .... [Baroid’s] liability on any claim of any kind arising out of this sales contract shall in no case exceed the price paid by Purchaser for the equipment. [Baroid] disclaims all liability, whether in contract, tort, warranty, or otherwise, to any party other than Purchaser.

Terry Petty of Odeco testified that, despite the warranty language in the purchase order, he believed, based on 40 years’ experience between Baroid and Odeco, that Odeco would “stand behind their products” and find a solution to any equipment failure.

Baroid also contracted with Hyundai Heavy Industries, Co. Ltd. (Hereinafter “Hyundai”), another shipbuilder for whom Odeco acted as agent, to provide CRTSs for two other drilling rigs, the OCEAN VALIANT and the OCEAN AMERICA.

4. Problems with the CRTS

The OCEAN ODYSSEY, which went into service in 1983, experienced problems with the Whitney chains on its CRTS. After hearing of the problems with the Whitney chains, Rexnord Corporation approached Odeco in 1984 and indicated that it could design a chain that would work. The Rexnord chains were incorporated into Baroid’s CRTS on the OCEAN ALLIANCE in December 1985.

The OCEAN ALLIANCE went into service in December 1988. The Rexnord chain failed on three separate occasions in 1990.

C. The Litigation

In 1992, Odeco filed suit against Baroid and Rexnord. Odeco asserted claims for violation of the DTPA, breach of warranty, fraud, negligence, products liability, and breach of contract, alleging that it had incurred chain replacement costs, damage to other rig property, increased servicing and lubricating costs, and lost drilling time for which the defendants were responsible as the designers, engineers, manufacturers, distributors, or lubricators of the “160K Chain Riser Tensioner.” In separate answers, Baroid and Rexnord denied the allegations and asserted affirmative defenses. Additionally, Baroid filed (1) a counterclaim against Odeco, alleging that Odeco’s DTPA suit was groundless and, therefore, Baroid was entitled to reasonable attorney’s fees under the DTPA, and (2) a separate cross-claim against Rexnord, asserting that, if Odeco was damaged as alleged, then Rexnord was liable to Baroid. Rexnord also filed a cross-claim against Baroid, maintaining that, if Odeco was damaged as alleged, then Baroid was liable to Rexnord.

1. Special Judge Proceedings

In 1995, almost three years after Odeco filed suit, the parties filed a joint motion to refer all issues “presently before this [trial] court” to a special judge in accordance with chapter 151 of the Texas Civil Practice and Remedies Code. See generally Tex. Civ. Pkac. & Rem.Code Ann. §§ 151.001 — .013 (Vernon 1997) (trial by special judge). The motion was accompanied by a Rule 11 agreement that named the Honorable Daniel M. Downey as the special judge, froze the pleadings as they were on February 15,1995, and set February 26, 1996 as the trial date before Judge Downey. The trial court granted the motion and signed an order of referral on March 3,1995.

In 1996, Odeco and Rexnord reached a settlement and jointly moved the special judge to dismiss Odeco’s claims against Rexnord with prejudice. In the settlement agreement, Rexnord agreed to pay Odeco $1 million. In return, Odeco agreed to indemnify Rexnord on any claims asserted against it by Baroid. The special judge signed an order doing so on August 16, 1996. There are no issues on appeal concerning the dismissal, but Baroid contends that it should receive a credit for the settlement amount to the extent that it is found liable and as an offset to the attorney’s fees it has incurred.

On November 7, 1996, the special judge signed a take-nothing partial summary judgment in favor of Baroid. The take-nothing partial summary judgment disposed of Odeco’s claims against Baroid (1) “sounding in tort” (i.e. negligence, strict liability, and fraud) and (2) for breach of implied warranties. Odeco makes no complaint on appeal about the dismissal of these claims.

Odeco’s DTPA claims against Baroid were either dismissed or abandoned, and Odeco does not complain on appeal about their disposition; however, Baroid maintains on appeal, as it did before the special judge, that it is entitled to attorney’s fees under the DTPA from Odeco because Ode-co’s DTPA claims were groundless or brought in bad faith. See Tex. Bus. & Com.Code Ann. § 17.50(c) (Vernon 2002).

Thus, at trial, Odeco’s only remaining claims were those against Baroid for breach of contract and breach of express warranty. Also remaining were Baroid’s DTPA counterclaims against Odeco, Bar-oid’s cross-claims against Rexnord, and Rexnord’s cross-claims against Baroid.

2. The Trial

The bench trial before the special judge began on October 14, 1997. After Odeco rested, Baroid moved for judgment, which the special judge granted in part by ruling that Odeco could not recover damages for breach of warranty or breach of contract with respect to the OCEAN VALIANT and the OCEAN AMERICA, the two vessels that did not experience CRTS failures.

Baroid rested on February 12,1998. On that date, Rexnord moved for judgment against Baroid on its cross-claims for contribution and indemnity. Ultimately, the special judge signed “the second amended judgment,” his final “verdict,” on March 5, 1999, and his final findings of facts and conclusions of law, the “fifth amended findings of fact and conclusions of law,” on June 2, 1999. In the final verdict, the special judge awarded Odeco $1,909,370.48 in actual damages against Baroid, plus interest and attorney’s fees, such amount representing the costs of retrofitting the OCEAN ALLIANCE from a chain riser tensioning system to a wire riser tension-ing system. The final verdict also awarded Baroid $1,909,370.92 in actual damages, plus interest and attorney’s fees, against Rexnord, such amount representing the amount Baroid was ordered to pay Odeco.

3. This Appeal

Rexnord and Baroid filed notices of appeal on June 2, 1999. Odeco filed a notice of appeal on June 14, 1999. On November 20, 2001, this Court abated the appeal, holding that the verdict signed by the special judge was not a “final judgment” because it had never been memorialized as such by the sitting judge of the trial court. See Newton & Swenson, Adjudication by Privately Compensated Judges in Texas, 36 BayloR L.Rev. at 839 n. 204.

Thereafter, the trial court signed a final judgment on February 26, 2002, adopting the special judge’s verdict for all purposes and entering the terms of that verdict as the terms of the final judgment. The 2002 final judgment made the premature notices of appeal, filed by the parties in 1999, timely. See Tex.R.App. P. 27.1.

THE BAROID APPEAL

In his findings of fact and conclusions of law, the special judge found that an oral contract existed between Odeco and Bar-oid, wherein Odeco “agreed to cause its rig builders to use [Baroid’s] CRTS on rigs ultimately to be owned or controlled by Odeco,” and Baroid, in return, agreed to “stand behind its product.”

In four issues on appeal, Baroid contends that the alleged oral contract is not enforceable because (1) the parol evidence rule bars consideration of earlier,'oral warranties that are inconsistent with the writ-' ten warranty found in the Scott Lithgow purchase order; (2) Odeco, as purchasing agent for Scott Lithgow, could not obtain warranties on the Baroid equipment that were greater than, and in addition to, the warranties made to Scott Lithgow, the actual purchaser of the equipment; (3) there is legally and factually insufficient evidence to show that Baroid and Odeco entered into an oral contract; and (4) there is legally insufficient evidence to show that Odeco suffered damages as a result of the breach of the alleged oral contract. Because we find these issues dispositive 'of much of Baroid’s appeal, we address them first.

A. Parol Evidence

In issue three, Baroid contends that Odeco’s breach of contract and breach of warranty claims are barred by the parol evidence rule. Specifically, Baroid contends that any earlier warranties it may have made regarding the CRTS were merged into the final, written contract— the Scott' Lithgow purchase order — and’ cannot be used to contradict the terms of that written contract.

The parol evidence rule provides that the terms of a written contract cannot be contradicted by evidence of an earlier, inconsistent agreement. Lewis v. Adams, 979 S.W.2d 831, 836 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Under the parol evidence rule, if the parties have integrated their agreement into a single written memorial, all prior negotiations and agreements with regard to the same subject matter are excluded from consideration, whether they were oral or written. Smith v. Smith, 794 S.W.2d 823, 827 (Tex.App.-Dallas 1990, no pet.) Additionally, a written instrument presumes that all prior agreements relating to the transaction have been merged into it and will be enforced as written and cannot be added to, varied, or contradicted by parol testimony. Id. The rule is particularly applicable when the written contract contains a recital that it contains the entire agreement between the parties or a similarly-worded merger provision. Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex.App.-Dallas 1984, no writ).

The parol evidence rule is not a mere rule of evidence, but a rule of substantive contract law. Piper, Stiles & Ladd v. Fid. and Deposit Co., 435, S.W.2d 934, 940 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.). As a question of law, the standard of review is de novo. City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Evidence violating the parol evidence rule has no legal effect and “merely constitutes proof of facts that are immaterial and inoperative.” Piper, Stiles & Ladd, 435 S.W.2d at 940.

The only written contract in this case— the Scott Lithgow purchase order — contains the following merger provision in its terms and conditions:

The sales contract incorporating these terms and conditions becomes a binding contract on the terms set forth herein when it is accepted by acknowledgment or commencement of performance. Said Contract can be so accepted only on the exact terms herein set forth (including the modes of acceptance specified in the immediately preceding sentence) and no terms which are in any manner whatsoever additional to or different from those herein set forth shall become a part of or in any way alter the aforementioned contract except with the express written consent of [Baroid].

[Emphasis added.]

Therefore, the Court must decide two issues relating to the merger clause: (1) whether the parol evidence rule applies against Odeco, a nonparty to the written contract, and (2) whether the terms of the oral agreement conflict or add to the terms of the written contract.

1. Does the parol evidence rule apply against a nonparty to the contract?

The general rule is that, before one contract is merged into another, the last contract must be between the same parties as the first, must embrace the same subject matter, and must have been so intended by the parties. Fish v. Tandy Corp., 948 S.W.2d 886, 898-99 (Tex.App.Fort Worth 1997, writ denied). The rule that parol evidence shall not be received to alter or contradict a written instrument applies to controversies between parties to it, and those claiming under them, but not to strangers. Peters v. Lerew, 139 S.W.2d 321, 327 (Tex.Civ.App.-Galveston 1940, writ dism’d judgm’t cor.).

However, in some instances, the third party has been so involved with the creation of the written contract, or is claiming rights under the contract such that he is bound to abide by its terms, i.e., he is no longer a stranger to the contract. See Brannon v. Gulf States Energy Corp., 562 S.W.2d 219, 223-24 (Tex.1977); Ragland v. Curtis Mathes Sales Co., 446 S.W.2d 577, 578 (Tex.Civ.App.-Waco 1969, no writ).

In Kingsbery v. Phillips Petroleum Co., the court summarized the authorities for applying the parol evidence rule to third parties in such circumstances:

“It is commonly said that the Parol[ ] Evidence rule, in the present aspect, is binding upon only those persons who are parties to the document. This form of statement suffices in most instances to reach correct results; but it is not sound on principle.”
“The truth seems to be, then, that the rule will still apply to exclude extrinsic utterances, even as against other parties, provided it is sought to use those utterances for the very purpose for which the writing has superseded them as the legal act.” IX Wigmore on Evidence, 3d Ed., Sec. 2446, pp. 149, 150. “The question has been raised whether the ‘parol[] evidence rule’ is applicable in favor of or against a third party who has not been a party to the written integration. The answer is definitely in the affirmative if the rule is correctly stated and understood. If two parties have by a complete written integration discharged and nullified antecedent negotiations between them, they are so discharged and nullified without regard to the identity of the person who may be asserting or denying the fact. If A has a claim for damages against B, and this claim is honestly discharged by a release or an accord and satisfaction, the operation of this discharge is not affected by the fact that it is C who afterwards asserts or denies it.” Arthur L. Corbin, The Parolf ] Evidence Rule, 53 Yale Law Journal 603, 661-662.
“One class of cases consists of those where, in a suit involving non-parties to the instrument, some oral agreement or understanding between the parties to the instrument variant from its terms is sought to be shown. If the purpose is to show intent where that is an issue, or if the instrument is not within the rule because a mere memorandum and not an embodiment of the transaction, there can be no objection, but under similar circumstances the evidence would be admissible if the suit were between the original parties. But if the purpose be to show that the immediate legal effect of the transaction (such as a contract, or transfer of land or chattels) was different from that expressed in the embodying instrument, (as an agreement that a deed should convey different land from that described) then the Parol[] Evidence Rule would apply, even though the evidence is being offered by or against a person not a party to the instrument.” 2 McCormick and Ray, Texas Law of Evidence, 2d ed., Sec. 1621, pp. 474-476.

Kingsbery v. Phillips Petroleum Co., 315 S.W.2d 561, 571-72 (Tex.Civ.App.-Austin 1958, writ ref'd n.r.e.).

In Kingsbery, the plaintiff, Kingsbery, and the defendant, Phillips Petroleum, had agreed that Kingsbery would organize a corporation with which Phillips would sign a “jobber contract” to provide a retail outlet for Phillips’ products. Id. at 563.. Accordingly, Kingsbery incorporated Reed-Phillips Oil Company, which in turn, entered into a written contract with Phillips for a period of one year, renewable on a year-to-year basis. Id. at 564. After one year, Phillips terminated the contract and Kingsbery sued, contending that he had a separate oral contract with Phillips, wherein Phillips waived its right to cancel the contract for a period of 20 years. Id. at 571. The court held that, even though Kingsbery was not a party to the written contract between Reed-Phillips and Phillips, he was nonetheless bound by its terms because (1) Kingsbery had agreed to organize a corporation with which Phillips would sign a jobber agency instrument; (2) the corporation was formed and entered into a written contract with Phillips in the presence of Kingsbery, who was its principal stockholder and who had represented the corporation in the negotiations with Phillips; and (3) Kingsbery was relying on the formation of that contract, at least in part, to support his cause of action. Id. at 572.

In this case, Odeco represented Scott Lithgow in its purchase negotiations with Baroid. As part of its negotiations, Odeco admitted that Baroid’s standard terms and conditions applied to the purchase of the CRTS. Baroid’s standard terms and conditions provided, among other things, a one-year warranty from the date of shipment on equipment manufactured by Bar-oid. The terms and conditions included the merger language referenced earlier and “disclaim[ed] all liability, whether in contract, tort, warranty, or otherwise, to any party other than [Scott Lithgow].”

Like the plaintiff in Kingsbery, Odeco negotiated the terms of the written contract as the agent for another company. Also, like the plaintiff in Kingsbery, Odeco’s claim rests on the existence of the written contract at issue in the ease. That is, but for the sale of the CRTS from Baroid to Scott Lithgow, there would be no basis for Odeco to claim an oral contract to warranty the CRTS to Odeco. Therefore, like the plaintiff in Kingsbery, we hold that Odeco is not a “stranger” to the written contract between Baroid and Scott Lithgow and cannot offer parol evidence of an oral agreement that conflicts with or adds to the terms of the written contract that it negotiated on behalf of Scott Lithgow.

2. Does the alleged oral contract conflict with or add to the written contract?

The parol evidence rule does not preclude enforcement of prior or contemporaneous oral agreements that are collateral to an integrated agreement and are not inconsistent with, and do not vary or contradict, the express or implied terms or obligations thereof. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30-31 (1958).

An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, not a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and (a) is made for separate consideration, or (b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.

William P. Terrell, Inc. v. Miller, 697 S.W.2d 454, 457-58 (Tex.App.-Beaumont 1985, no writ).

Odeco argues that the oral contract found by the special judge does not conflict with or add to the terms of the written purchase order. We disagree.

The special judge found that Baroid promised Odeco “that (1) the chains on the riser tensioner system would last for at least five years; (2) over that five-year period, Odeco would save money because of reduced maintenance expenses; and (3) the system would operate at 160,000 lbs continuously.” The special judge also found that Baroid promised Odeco that it would “stand behind its product” and that “[the benefits and advantages represented to Odeco in [Baroid’s] correspondence, cat-alogues, presentations, operating manuals and other materials forms the ‘basis of the bargain’ between Odeco and [Baroid]].”

In contrast, the written contract provides a limited warranty against defects in material and workmanship for one year from the date of shipment. The written contract also states that it only warrants equipment manufactured by Baroid. The chains were not manufactured by Baroid, but by Rexnord. The written contract also “disclaims all liability, whether in contract, tort, warranty, or otherwise, to any party other than [Scott Lithgow].” Finally, the written contract expressly states that none of its sales materials create warranties.

Because we have held that Odeco is bound by the terms of the written contract and that the alleged oral contract actually conflicts with the written contract, we sustain Baroid’s third issue on appeal.

B. Sufficiency of the Evidence

In issues six and nine, Baroid contends that there is legally and factually insufficient evidence to support an award of damages on Odeco’s breach of contract claim. In an appeal from a bench trial, findings of fact have the same weight as a jury’s verdict upon special issues. Lee v. Lee, 981 S.W.2d 903, 905 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Such findings, if challenged, are reviewable for legal and factual sufficiency of the evidence by the same standards applicable in reviewing the sufficiency of the evidence supporting a jury’s findings. Gennedy, 125 S.W.3d at 691; Lee, 981 S.W.2d at 905-06. Thus, if the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which the party did not have the burden of proof, then the party must demonstrate on appeal that there is no evidence to support the finding. Gennedy, 125 S.W.3d at 691. In such a review, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor, and disregard all evidence and inferences to the contrary. Id. at 692. If more than a scintilla of evidence supports the finding, the no-evidence challenge fails. Id.

In our review of factual sufficiency of the evidence, we must consider and weigh all of the evidence. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). We will set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

In issue nine, Baroid contends that there is no evidence to support the existence or terms of the oral contract found by the special judge. In issue six, Baroid contends that there is no evidence that Odeco suffered damages, separate and apart from the purchaser, as a result of the problems with the CRTS.

1. Existence or Terms of the Contract

The elements of a valid contract are (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) each party’s consent to the terms, and, in the case of a written contract, (5) execution and delivery of the contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied). The determination of a meeting of the minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did and not on their subjective state of mind. Copeland, 3 S.W.3d at 604. In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications. Prime Prods., 97 S.W.3d at 637; Copeland, 3 S.W.3d at 605.

It is clear from the record in this appeal — the exhibits and the testimony— that, during 1981 through the signing of the March 11, 1982 purchase order, Baroid was engaged in sales efforts to persuade employees of Odeco to use its CRTSs on the OCEAN ALLIANCE, the rig being built by Scott Lithgow, which also purchased the equipment to use on it. Bar-oid’s sales efforts culminated in its submission of a written proposal to Odeco on August 10, 1981 for a drill string compensator, chain riser tensioning system, guideline tensioner system, taut line tensioner system, 120-ton mooring system, floating guide dolly system, and spare parts for such for the OCEAN ALLIANCE, a revised proposal “Rev. A” on September 15, 1981, and an alternative pricing proposal on October 14, 1981. In connection with these proposals, Baroid also submitted to Odeco letters on December 9, 1981 and January 13, 1982 that offered a time payment plan option and touted the cost savings in connection with the chain riser tensioner system, respectively. These negotiations between Odeco and Baroid culminated in the Scott Lithgow purchase order on March 11, 1982, and the documents evidencing the negotiations between Odeco and Baroid were included in the Scott Lithgow purchase order.

Odeco cannot prove an essential element of its breach of contract case, i.e., the existence of an offer to Odeco. The very fact that the letters between Odeco and Baroid were included in the Scott Lithgow purchase order underscores that Odeco negotiated on behalf of Scott Lithgow, culminating ultimately in the Scott Lithgow purchase order. However, the letters do not evidence any independent contractual undertaking by Baroid toward Odeco, individually. Odeco did not purchase the CRTSs and is not a party to the sales contract.

There is no evidence of a separate contract between Odeco and Baroid, under which Odeco agreed to cause its rig builders to use Baroid’s CRTSs and Baroid agreed to provide a CRTS that would meet the promised specifications and to stand behind its product until the CRTSs performed to Odeco’s satisfaction. Indeed, it is not a reasonable inference from the evidence presented at the trial that Baroid would insist that its standard terms and conditions, including the one-year warranty, be applied to the actual purchaser, Scott Lithgow, while orally conferring upon Lithgow’s purchasing agent, Odeco, a separate five-year warranty on equipment that Odeco did not even own. Accordingly, we hold that Odeco presented legally insufficient evidence of a separate, oral contract between Odeco and Baroid.

We sustain Baroid’s ninth issue on appeal.

2. Damages

In March 1993, five months after it filed suit in this case, Odeco purchased the OCEAN ALLIANCE from Lloyd’s Leasing. In October 1993, Odeco retrofitted the OCEAN ALLIANCE with a wire rope tensioning system in place of the chain riser tensioning system. After trial, the special judge awarded Odeco $1,909,370.43 in actual damages against Baroid, such amount representing the costs of retrofitting the OCEAN ALLIANCE from a chain riser tensioning system to a wire riser tensioning system. In points of error six and nine, Baroid contends that there was no evidence that Ode-co suffered damages because it purchased the OCEAN ALLIANCE, having been made aware of the problems with the CRTS (and after filing suit), and it did not incur any costs related to the CRTS until after the purchase.

We agree. In Adams v. Gates Learjet Corp., the plaintiff purchased pre-owned Learjet airplanes after certain defects were known to exist with the planes because of actions taken by the Federal Aviation Administration. 711 F.Supp. 1377, 1382 (N.D.Tex.1989). The court opined that the plaintiff had suffered no damage as a matter of law. Id. at 1383.

As to those Plaintiffs who purchased their aircraft from other vendors after the AD’s issuance as a final rule in 1984, their claim to have standing to bring an action for tort or contract damages can only be described, charitably, as disingenuous. All the Plaintiffs admit that their alleged damages “arise” from the issuance of AD-84-17-02. As to these Plaintiffs’ alleged damages[,] only three possibilities exist: they either paid (1) more than fair market value, (2) less than fair market value, or (3) a price equal to fair market value for their aircraft.
If the Plaintiffs paid less than market value or a price equal to fair market value, they have simply suffered no damages. With respect to those Plaintiffs who possibly paid more than fair market value, their damages, if any, resulted from a poorly bargained for aircraft, not from the AD’s issuance or any act or omission on Learjet’s part. As the Plaintiffs’ own damage experts stated, any diminution in value equal to the cost of compliance occurred when the AD was issued. Thus, any diminution in value occurred before these Plaintiffs’ purchased their Model 24’s and are not compensable in this lawsuit.

Id. at 1382 n. 5.

Applying the logic of Adams to this case, we reason that the damage to the value of the OCEAN ALLIANCE occurred in this case when the CRTS failed long before Odeco’s purchase. At the time of the CRTS failure, Odeco was not the owner of the OCEAN ALLIANCE; it was merely the rig operator and the purchasing agent for the actual owner. As such, Odeco should have taken the decreased value of the rig into account when it decided to purchase the rig.

We also note that Odeco claims that “[Britoil] and Odeco agree that Odeco had all rights including warranty rights pertaining to the alliance, which Odeco was entitled to assert in its own name.” As such, Odeco contends that it had the right to sue and recover all damages pertaining to the OCEAN ALLIANCE, even if it was not the owner of the OCEAN ALLIANCE at the time the damages were incurred.

However, the record clearly shows that the trial court ruled in response to a motion for partial summary judgment filed by Baroid, that: (1) Odeco was not a party or a third-party beneficiary to the Scott Li-thgow contract, and (2) Odeco could not recover on an assigned cause of action from Britoil. The trial court reaffirmed the partial summary judgment in its findings of fact and conclusions of law, wherein it stated that none of its findings of fact were intended to conflict with the previously-granted motion for partial summary judgment. Odeco never pleaded, nor proved, an assignment by Britoil of any claim for damages that Britoil might hold, and Odeco cannot show that it was independently damaged when it later purchased the defective rig.

We also note that Odeco filed suit in this case on October 16, 1992. However, the Deed of Covenant between Britoil and Odeco regarding the sale of the OCEAN ALLIANCE was not signed until October 30, 1992, and Odeco did not actually purchase the OCEAN ALLIANCE until March 1993. Even if we were to assume that the sale of the rig effectuated an assignment of some sort, because the suit had already been filed, Odeco would have had to comply with section 12.014 of the Texas Property Code to make the assignment binding on Baroid. See Tex. Prof. Code Ann. § 12.014 (Vernon 2004) (providing that, in order for transfer of a cause of action upon which suit has been filed to be binding upon person dealing with said cause of action, notice of transfer should be filed in papers of suit and should be acknowledged or sworn to in form and manner required by law for acknowledgment or swearing of deeds). No such sworn notice appears in the file of this case.

Accordingly, we sustain Baroid’s sixth and ninth issues on appeal as they relate to damages.

Because we have sustained Baroid’s third, sixth, and ninth issues on appeal, we reverse the judgment against Baroid and render judgment that Odeco take nothing from Baroid.

C. Other Issues Relating to Odeco

In issue one, Baroid contends that Ode-co was permitted to recover based upon an unpleaded contract. In issue two, Baroid contends that Odeco’s claims are barred by the statute of frauds. In issue four, Bar-oid contends that Odeco cannot recover on a breach of warranty claim because it never accepted the goods. In issue five, Bar-oid contends that Odeco, as purchasing agent for Scott Lithgow, could not negotiate warranties on Scott Lithgow equipment that inured to Odeco’s benefit. In issue seven, Baroid contends that Odeco’s claims are barred by the statute of limitations. In issue eight, Baroid contends that the trial court erred in holding Vareo Shaffer liable, along with Baroid, because it was created as the result of an asset purchase and had no liability under the Business Corporation Act. In issue 10, Baroid contends that the trial court erred in failing to make additional or amended findings of fact. In issue 11, Baroid contends that the trial court erred in finding that the attorney’s fees for the three plaintiffs were not capable of being segregated, and in awarding plaintiffs 100% of their attorney’s fees. Finally, in issue 13, Baroid contends that the settlement agreement between Odeco and Rexnord, wherein Odeco promises to indemnify Rexnord for any claims brought by Baroid, creates a circular indemnity that destroys Odeco’s claims against Baroid.

In light of our dispositions of Baroid’s third, sixth, and ninth issues on appeal, in which we reversed the judgment against Baroid and rendered judgment that Odeco take nothing from Baroid, we need not address Baroid’s first, second, fourth, fifth, seventh, eighth, tenth, eleventh, and thirteenth issues on appeal, and we decline to do so.

D. Denial of Baroid’s DTPA Counterclaim

In its twelfth issue on appeal, Bar-oid contends that the trial court erred by refusing to award damages on its claim against Odeco under the DTPA. Specifically, Baroid contends that Odeco’s claim, as a matter of law, was groundless and brought in bad faith or for the purpose of harassment.

Section 17.50(c) of the Texas Business and Commerce Code provides that, on a finding by the court that an action was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorney’s fees and court costs. Tex. Bus. & Com.Code Ann. § 17.50(c) (Vernon 2002). In Donwerth v. Preston II Chrysler-Dodge, Inc., the Texas Supreme Court held that the trial court must determine the existence of groundlessness, bad faith, and harassment under section 17.50(c). 775 S.W.2d 634, 637 (Tex.1989). The trial court’s determination is reviewed under an abuse of discretion standard. Id. at 637 n. 3; Ostrow v. United Bus. Machs., Inc., 982 S.W.2d 101, 106 (Tex.App.-Houston [1st Dist.] 1998, no pet.). A trial court abuses its discretion if it acts arbitrarily and unreasonably without reference to guiding rules or principles. Ostrow, 982 S.W.2d at 106.

According to Donwerth, “groundless” under the DTPA means “no basis in law or fact and not warranted by good faith argument for extension, modification, or reversal of existing law.” 775 S.W.2d at 637. To find that a lawsuit was brought in “bad faith,” a defendant must show that the suit was motivated by a malicious or discriminatory purpose. W.M. Riddick v. Quail Harbor Condo. Ass’n, 7 S.W.3d 663, 667 (Tex.App.-Houston [14th Dist.] 1999, no pet.). A finding of harassment is closely tied to a finding that the suit was groundless. Donwerth, 775 S.W.2d at 640.

Odeco initially asserted claims for violation of the DTPA. In response, Baroid filed a counterclaim against Odeco, alleging that Odeco’s DTPA claims were groundless and, therefore, Baroid is entitled to reasonable attorney’s fees under section 17.50(c). As Baroid concedes in its brief, Odeco dropped its DTPA claims after Baroid moved for summary judgment in August 1996, more than one year before trial. Neither the final judgment, nor any order specifically ruled on Baroid’s claim for reasonable attorney’s fees under section 17.50(c). However, the “Mother Hubbard” language of the final judgment effectively denied Baroid relief on its DTPA counterclaim. Moreover, the special judge’s findings 104 and 105 read as follows:

104. In connection with the pursuit of their claims herein, [Odeco’s] DTPA claims were not brought in bad faith and were supported by applicable law.
105. [Odeco’s] DTPA claims were not brought for the purpose of harassment.

Baroid maintains that Odeco’s DTPA claims were groundless and brought in bad faith or for the purpose of harassment as a matter of law for three reasons. First, Odeco was a business consumer with assets of $25 million or more, and, thus, it could not maintain a DTPA cause of action. See, e.g., Transp. Indem. Co. v. Orgain, Bell & Tucker, 846 S.W.2d 878, 882 (Tex.App.-Beaumont 1993), writ denied per curiam, 856 S.W.2d 410 (Tex.1993) (neither approving nor disapproving court of appeals analysis of bad faith issue); see Tex. Bus. & Com.Code Ann. § 17.45(4) (Vernon 2002). Second, when Odeco filed suit, it knew it did not own the claim; rather, Britoil owned it. Finally, Baroid contends that Odeco was not a consumer insofar as it acted as an agent for Scott Lithgow and did not seek or acquire any goods or services.

Baroid and Vareo cite us to no evidence in the record indicating that Odeco brought its DTPA claims in “bad faith,” that is, that Odeco had a malicious or discriminatory purpose in bringing their DTPA claims. Further, in PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, the Texas Supreme Court noted that it had never decided the issue of whether a business consumer could pursue a claim that arose from a contract that had been executed prior to the effective date of the 1983 amendments to the DTPA. 146 S.W.3d 79, 91 (Tex.2004).

Before PPG Industries, for example, the San Antonio Court of Appeals held that the waiver provisions of the 1983 amendments to the DTPA did not apply to a contract executed before those amendments became effective. See Gov’t Employees Credit Union v. Fuji Photo Film U.S.A., Inc., 712 S.W.2d 208, 211 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.).

As for the assertion that the suit was groundless because Britoil owned the claim and Odeco was merely acting as an agent, Odeco presented the testimony of Richard Lionberger, who testified that he believed that it was not necessary for Bri-toil to assign any claims it might have had against Baroid to Odeco because Odeco acquired those claims when it purchased the OCEAN ALLIANCE.

Because the law relative to the applicability of the 1983 DTPA amendments was unsettled, Baroid cites us to no evidence of malicious or discriminatory purpose on the part of Odeco, and Lionberger’s testimony provides some evidence that Odeco believed it had the right to assert Britoil’s claims, we hold that the special judge did not abuse his discretion in determining that Odeco’s claims were not brought in bad faith, were not brought for purposes of harassment, or were supported by applicable law.

Accordingly, we overrule Baroid’s twelfth issue on appeal.

E. Baroid v. Rexnord

The final judgment awarded Bar-oid $1,909,370.92 in actual damages, plus interest and attorney’s fees, against Rex-nord, the chain manufacturer for the CRTS. Such amount represents the same amount Baroid was ordered to pay Odeco. In issues 14 through 16, Baroid challenges the judgment as it relates to this award. Specifically, in issue 14, Baroid contends that it was entitled to a credit for the $1 million Rexnord paid Odeco under the terms of their settlement. In issue 15, Baroid contends that the trial court erred in failing to award some amount of each element of damages for the claims against Rexnord. And, in issue 16, Baroid contends that the trial court erred in denying its indemnity claim and negligent misrepresentation claim.

However, in its separate appeal, Rex-nord contends that the trial court erred in granting any judgment for Baroid for “independent claims” because they were never pleaded. We agree with Rexnord. After reviewing Baroid’s cross-claims against Rexnord, we conclude that Baroid did not assert any independent causes of action against Rexnord, but rather only derivative claims for indemnity or contribution. Each of Baroid’s causes of action asserted against Rexnord was contingent on a liability finding to Odeco. Because we have reversed and rendered Odeco’s judgment against Baroid, we must necessarily do the same here. Accordingly, we sustain Rex-nord’s second issue on appeal. Because we sustain Rexnord’s second issue, we need not address Baroid’s fourteenth, fifteenth, and sixteenth issues, and decline to do so. We reverse the judgment in favor of Baroid and against Rexnord and render judgment that Baroid take nothing from Rexnord.

THE ODECO APPEAL

A. Maintenance and Chain Replacement Costs for the OCEAN ALLIANCE

In its first issue on appeal, Odeco contends that the trial court should have awarded it not only damages for the costs of retrofitting the OCEAN ALLIANCE, but also damages for its increased maintenance and chain replacement costs. Inasmuch as we have already held that Odeco was not entitled to recover any damages from Baroid for the expenses incurred in retrofitting the Alliance because there was no contract between the two parties, we also conclude that Odeco was not entitled to recover for the increased maintenance and chain replacement costs associated with the OCEAN ALLIANCE. Accordingly, we overrule Odeco’s first issue on appeal.

B. Damages for the OCEAN VALIANT and OCEAN AMERICA

In issues two and three, Odeco contends that the special judge erred by refusing to award it damages associated with the CRTSs that were placed on two other rigs — the OCEAN VALIANT and the OCEAN AMERICA. Odeco argues that “the same warranty” that applied to the OCEAN ALLIANCE also applied to the OCEAN VALIANT and the OCEAN AMERICA and that the special judge’s findings of fact regarding the existence of an oral contract between Odeco and Bar-oid, which were used to support an award for the retrofitting of the OCEAN ALLIANCE, would also support an award for the costs of retrofitting the OCEAN VALIANT and the OCEAN AMERICA.

However, we have already held that there was no oral contract between Odeco and Baroid for the OCEAN ALLIANCE. Inasmuch as Odeco is relying on “the same warranty,” for which we have found legally insufficient evidence of its existence, we also overrule Odeco’s second and third issues on appeal.

We affirm the judgment as .it relates to Odeco’s claims against Baroid.

CONCLUSION

Because we have held that Odeco’s recovery of damages from Baroid is (1) barred by the parol evidence rule (2) and is supported by legally insufficient evidence of (a) the existence of an oral agreement between Baroid and Odeco, wherein Baroid warrantied to Odeco that it would “stand behind” the CRTSs Baroid sold to Scott Lithgow, and (b) damages to Odeco caused by the sale of the CRTSs to Scott Lithgow, we reverse the judgment against Baroid and render judgment that Odeco take nothing from Baroid on its claims.

Because we have held that the trial court did not abuse its discretion in failing to award damages on Baroid’s DTPA counterclaim against Odeco, we affirm that portion of the judgment.

Because we have held that all of Bar-oid’s claims against Rexnord were contingent on a finding that Baroid was liable to Odeco, and because we have held that Baroid is not liable to Odeco, we reverse the judgment as it relates to Baroid’s cross-claims against Rexnord and render judgment that Baroid take nothing from Rexnord.

Because we have held that there is legally insufficient evidence of the existence of an oral agreement between Baroid and Odeco, wherein Baroid warrantied to Ode-co that it would “stand behind” the CRTS Baroid sold to Hyundai, we affirm the portion of the judgment that denies Ode-co’s recovery from Baroid on its claims relating to the OCEAN VALIANT and the OCEAN AMERICA.

      . In the findings of fact, the trial court refers to Baroid and NL Shaffer, Inc. interchangeably. For the convenience of the reader, we will do the same.

      . The OCEAN ODYSSEY was destroyed in a well blowout in 1988 and is not involved in the current litigation.

      . The trial court’s findings of fact refer to Ben Odeco Limited and Diamond-M Odeco, Ltd. interchangeably as "Odeco.” Hereinafter, for the ease of the reader, we will likewise refer to Ben Odeco Limited as "Odeco,” . unless necessary to do otherwise for purposes of clarity.

      . The Texas Deceptive Trade Practices Act, Tex. Bus. & Com.Code Ann. § 17.41 (Vernon 1997).

      . Tex.R. Civ. P. 11.

      .In this opinion, Judge Downey is referred to as “the special judge” to distinguish him from the presiding trial court judge ("the trial court”).

      . One of the representatives who drafted the 1983 Special Judge Act acknowledged that it was awkward for the legislature to use the term "verdict” in the context of a nonjury trial. W. Frank Newton & David G. Swen-son, Adjudicaion by Privately Compensated Judges in Texas, 36 Baylor L.Rev. 813, 839 n. 204 (1984).

      . The trial court made 170 findings of fact. Findings relevant to Odeco's breach of contract claim include the following:
      12. There was a contract between Odéco and [Baroid] with regard to the [CRTS] on the Odeco rigs to be constructed, including the OCEAN ALLIANCE. Under the contract, Odeco agreed to cause its rig builders to use [Baroid’s] CRTS on rigs ultimately to be owned or controlled by Odeco.
      13. [Baroid] agreed to provide a CRTS that would perform as specified and represented on semi-submersible drilling vessels as required up to 160K of tension continuously. Shaffer also agreed to "stand behind its product.”
      14. [Baroid] promised Odeco, among other things, that (1) the chains on the riser tensioner system would last for at least five' years; (2) over that five-year period, Odeco would save money because of reduced maintenance expenses; and (3) the system would operate at 160,000 lbs. continuously.
      15. Odeco agreed to specify [Baroid’s] equipment and/or purchase of [Baroid’s] products and services in return for [Baroid] honoring its promises regarding the "advantages and benefits of the CRTS.” Odeco performed under the agreement by causing shipyards to purchase chain riser tensioner systems for Odeco rigs.
      16. Odeco interceded on [Baroid’s] behalf to convince [Britoil] to approve the [Baroid] chain riser tensioner system even though it was more expensive. Odeco did this in part because [Baroid] persuaded it that its system would be less expensive and technically superior.
      17. Odeco was the only [Baroid] customer which purchased the CRTS for drilling application. The CRTS were either purchased by Odeco or Odeco caused those systems to be purchased by various shipyards.
      18. The "Scott Lithgow” purchase order includes two letters from Stanley Baleson to Mark Childers which tout the advantages of the [CRTS], [Baroid] has admitted that the letters from [Baroid] to Odeco in December 1981 and January 1982 are part of the Scott Lithgow purchase order.
      19. Odeco caused the Scott Lithgow purchase order to be issued in exchange for [Baroid’s] agreement and warranties to Odeco which included the various "advantages” and operational characteristics of the riser tensioner system.
      20. The purchase order incorporates the [Baroid] catalogue and the representations in that document.
      24. The conduct of [Baroid] and Odeco was consistent with the existence of a contract between them. Under the contract between the parties, Odeco was the buyer and [Baroid] was the seller. * The course of performance between Odeco and [Baroid] demonstrates the parties' recognition of a binding agreement.

      . In his July 16, 1982 telex to Baroid, Terry Petty, of Odeco, acknowledged that Baroid’s standard terms and conditions, which were included in its quote, took precedence over the British Shipbuilders Conditions; therefore, it would not be necessary to modify the British Shipbuilders Conditions. Petty also testified that Baroid’s terms and conditions applied to the purchase order.

      . We note that in Kingsbery, the plaintiff negotiated the terms of the written contract, but the written contract was actually signed by the president of the corporation that the plaintiff formed. 315 S.W.2d at 563. In this case, Odeco not only negotiated the terms of the written contract, it actually signed the contract as purchasing agent for Scott Li-thgow. As such, Odeco is even less of a “stranger” to the contract than the plaintiff was in Kingsbery.

      .We note that, if Odeco were a stranger to the written contract, it could not sue to enforce its terms unless it were a third-party beneficiary, which the trial court found it was not.

      . The terms and conditions state that
      [A]ny descriptions of the equipment, drawings, specifications, and any samples, models, bulletins, or similar material used in connection with this sale are for the sole purpose of identifying the equipment and are not to be construed as an express warranty that the equipment will conform to such description.

      . Attached to the Scott Lithgow purchase order, and forming a part of it, were the September 15, 1981 letter from Baleson to Odeco, the quote and its revision, the two letters dated December 9, 1981 and January 13, 1982 from Baroid to Odeco, and a two-page document entitled "Chain Tensioners” setting forth various advantages of chain riser tensioners.

      . After reviewing the evidence and briefs of all the parties, we conclude that Odeco’s breach of contract cause of action is indistinguishable from its breach of express warranty cause of action. Odeco never argues that it had any warranty independent of the alleged oral contract with Baroid. Because the alleged warranty claim arises out of a contract that we have held is not supported by legally sufficient evidence, we also conclude that Odeco presented legally insufficient evidence of any express warranty with Baroid.

      . During oral arguments, counsel for Baroid agreed that, if we reversed the judgment in favor of Odeco’s and against Baroid, Baroid and Vareo would have no liability claims against Rexnord.

      . We note that, as in the sales contract for the OCEAN ALLIANCE, Odeco was not a party to the only written contract regarding the sale of the CRTSs for the OCEAN VALIANT and the OCEAN AMERICA. Baroid contracted with Hyundai Heavy Industries [“Hyundai”] for the sale of the CRTSs, which were placed on the OCEAN VALIANT and the OCEAN ALLIANCE. Odeco had a "turnkey” contract with Hyundai to construct the OCEAN VALIANT and OCEAN AMERICA. That is, Odeco negotiated a fixed price with Hyundai for the complete rigs. Hyundai then negotiated with Baroid to purchase the CRTSs. The price Hyundai paid for the CRTSs had no impact on how much Odeco paid for the rigs because that price had already been determined. The sales contract between Hyundai and Baroid warrantied the CRTSs for “26 months from delivery or 14 months from the main vessel or rig delivery whichever comes first." The CRTS was delivered to the OCEAN VALIANT in January 1986, and Odeco did not obtain ownership of the OCEAN VALIANT until October 1989, more than 26 months after the CRTS was delivered. The CRTS installed on the OCEAN AMERICA before December 1988, the date the rig was delivered to Odeco, but Odeco did not obtain ownership of the OCEAN AMERICA until November 1991, which was more than 14 months after the rig was delivered.


author: Justice GRAVES. KELLER, J.,

text:
    COMMONWEALTH of Kentucky, Appellant, v. Gregory A. BERRY, Appellee, and Gregory A. Berry, Appellant, v. Commonwealth Of Kentucky, Appellee.
    No. 2003-SC-0357-DG, 2004-SC-0231-DG.
    Supreme Court of Kentucky.
    May 19, 2005.
    As Modified on Denial Rehearing Feb. 23, 2006.
    Gregory D. Stumbo, Attorney General, Louis F. Mathias, Jr., Office of the Attorney General, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Commonwealth.
    Timothy G. Arnold, Department of Public Advocacy, Frankfort, Counsel for Gregory A. Berry.
   Opinion of the Court by

Justice GRAVES.

I. Facts and Procedural History

Appellant, Gregory A. Berry, was convicted of second degree assault and being a persistent felony offender (PFO) in the first degree. The trial court entered judgment in accordance with the jury verdict and imposed the jury-recommended minimum sentence of ten years. Berry’s conviction stemmed from an altercation with his former in-laws, Howard and Elaine McGregor. Berry’s ex-wife, Kimberly Berry, was incarcerated at the time of the altercation. Most of her belongings remained in the home where Berry was living. Kimberly gave her mother a power of attorney to collect her property from the home. The McGregors arrived at Berry’s home on February 5, 2000, around 9:00 a.m. to retrieve Kimberly’s property because Berry was preparing to move.

An altercation ensued after Mr. McGre-gor raised the issue of Berry’s providing financial support for his and Kimberly’s four children. Berry claims that after this discussion, Ms. McGregor called him a drug addict and a liar, picked up one of his golf clubs and began wildly swinging it. Conversely, the McGregors both testified that they were attempting to leave the house and Berry shoved Ms. McGregor three times, sending her to the floor with the last shove. She testified that when she fell, she grabbed a golf club that was lying beside her. Berry grabbed the other end of the club and jerked her up with it, at which point Mr. McGregor attempted to intervene. By the McGregors’ account, Berry hit Mr. McGregor repeatedly with the golf club until he fell to the floor. By Berry’s own admission, he shoved the head of the golf club into Mr. McGregor’s face three times and hit him with his fist three times, at which point Mr. McGregor fell to the floor. Ultimately, the McGregors left the residence and went to the emergency room where Mr. McGregor was treated for head injuries, cuts and contusions.

A grand jury indicted Berry on April 18, 2000, on charges of assault in the second degree. Prior to a jury being sworn, the Commonwealth dismissed the indictment and a grand jury re-indicted Berry on February 13, 2001. Berry proceeded pro se and a jury convicted him of second degree assault and as a PFO in the first degree. He received the minimum sentence of ten years imprisonment.

Berry appealed his conviction alleging violations of double jeopardy and right to counsel. He also attacked the trial court’s instructions to the jury. The Court of Appeals reversed his conviction, finding merit to his right to counsel claim. We granted the Commonwealth’s petition for discretionary review. For the following reasons, we reverse the Court of Appeals’ decision and reinstate Berry’s conviction and sentence in accordance with the trial court’s judgment.

We must examine, inter alia, two constitutional rights in juxtaposition: 1) the right to counsel and 2) the right to self-representation. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that states cannot force counsel upon a defendant, recognizing the right to self-representation as a constitutional right. We have long recognized a defendant’s constitutional right to counsel. We also recognize hybrid representation, or a defendant’s ability to proceed pro se with standby counsel, controlling counsel’s role in the litigation. The Constitution guarantees a defendant the right to choose which method he will use to present his defense. Wake v. Barker, 514 S.W.2d 692 (Ky.1974). However, a defendant may not use the availability of these alternate methods as a tool to place the trial court in a proverbial “catch 22” situation. That is, a defendant may not insist on using one method to present his defense and then, on appeal, claim a violation of his Constitutional right to utilize a different method.

II. Double Jeopardy

KRS § 508.020(1) provides:

(1) A person is guilty of assault in the second degree when:

(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument. ’

The initial indictment alleged that Berry intentionally caused serious physical injury, but did not mention the use of a dangerous instrument or deadly weapon. However, the Commonwealth raised the issue of Berry’s use of the golf club as a dangerous instrument during voir dire. This prompted a conference in chambers, during which the Commonwealth dismissed the indictment. The Commonwealth sought re-indictment under KRS 508.020 without restriction. On February 13, 2001, a grand jury, again, indicted Berry.

The Court of Appeals rejected Berry’s claim that the second indictment subjected him to double jeopardy. It correctly found that the dismissal of the first indictment was voluntary and therefore without prejudice under CR 41.01. Dismissal was prior to the swearing of the first witness; therefore jeopardy had not attached. KRS 505.030(4); Commonwealth v. Lewis, 548 S.W.2d 509 (Ky.1977).

III. Right to Counsel

A defendant’s choice to represent himself must be competent and intelligent. Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. Berry argued, and the appellate court agreed, that he did not knowingly and intelligently waive his right to counsel. In Faretta, supra, the United States Supreme Court explained:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. at 835, 95 S.Ct. 2525 (citations omitted).

We must, initially, answer whether Berry’s request to represent himself was unequivocal. Moore v. Commonwealth, 634 S.W.2d 426 (Ky.1982). Then, we must determine whether Berry made his choice to represent himself “with eyes wide open.” The purpose of the “knowing and voluntary” inquiry is to make certain that Berry understood the significance and consequences of his decision and to ensure that it was uncoerced. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).

The trial court engaged Berry in the following colloquy in chambers prior to trial:

COURT: The court made a determination earlier that you were not qualified for public defender appointment because of your income. Has anything changed about that?
BERRY: No.
COURT: And you elected not to hire your own attorney, is that correct?
BERRY: Yes, sir.
COURT: And why is that?
BERRY: Well, the guy’s lying; I’m just not going to pay money to have him get up there and he.
COURT: But would you be able to pay money?
BERRY: Well I already have to one guy. I paid him what you’d uh — a good fee.
COURT: You paid who a good fee?
BERRY: I paid Michael Ruschell; he got paid for his fee — I guess $1000.
COURT: Okay, that was the public defender fee.
BERRY: I don’t see any reason to hire an attorney.
COURT: Okay. I mean that was for the representation in that first indictment which covered four or five months, I suppose, or a little longer — in various hearings and various proceedings. But is it your decision that you don’t feel that you need an attorney?
BERRY: Well, I’m sure it’d be nice to have one, but I’d rather go at it on my own.
COURT: But can you tell me why you’d rather go at it on your own — And I’m not trying to be difficult or disagreeable, I just want to know that I understand why you want to go at it on your own.
BERRY: Well, just like mining it’s a exploratory business, you know, there’s not a known, just like in law, it’s exploratory, there’s a set a rules, but there’s not a known; it’s exploratory.
COURT: And if you were to hire an attorney — one question is — are you deciding not to have an attorney because you can’t afford a lawyer or because you’d rather not — not have to pay that— I mean there are a lot of expenses in life that we would ...
BERRY: ... rather do without.
COURT: Well, we make decisions that “well, we’re not going to do that,” but it’s a decision that’s free and voluntary on our part when we decide to do that.
BERRY: Yes, I drive an old car, I worked on it; I mean, I don’t hire a mechanic for it, you know, I do that; I really don’t hire anybody to do anything; I mean, I tried that all on my own.
COURT: And that’s fine. I mean the law allows that. The law allows you to represent yourself in a criminal case or a civil case. I suppose, and I can’t exhaust all the possibilities, but in just about any legal matter, as long as you’re representing yourself — you can do that. You can’t represent others obviously but when it comes to dealing with your own life, whether it be in the context of the criminal or the civil law, as long as your doing it for your own self, you can do it. But you will be held accountable to the same standards as if you were a lawyer and you understand that?
BERRY: Exactly.
COURT: Just as when you’re working on your car, the results will hold you to the same standards as a mechanic.
And if you’re not aware of all the rules as related to the particular law of this case then you could suffer the result. Is that something that you’re willing to risk, or undergo?
BERRY: Yes.
COURT: I think I’m interpreting you correctly but tell me if I’m misinterpreting you that you could afford a lawyer if you wanted one; it’s an expense you’d just as soon not pay, but if you really wanted a lawyer you could afford one. BERRY: Yes.
COURT: Okay. I have to make a finding, and we’re leading up to that, that your decision to represent yourself is knowingly and voluntarily made.
BERRY: Yes.
COURT: And that’s why, if your decision to represent yourself was “well, I can’t afford a lawyer”—
BERRY: No, that’s not the point; that’s not the case.
COURT: Okay; and it has to be knowingly made; let’s discuss a little bit about that; you’re charged with assault in the second degree which is a C felony which the range of punishment for that is 5-10 years; you’re also charged with being a first degree persistent felony offender and that means that you have two prior felony convictions. The significance of being charged as a persistent felony offender in the first degree is that if you’re convicted of the felony assault at the C level then your range can go up to 10-20 years. And even if you’re convicted of a lesser assault under extreme emotional disturbance, which would only be a D felony, the penalty could still be increased to 10-20 years. And the further significance of that is that if you’re convicted of the C felony, as a PFO 1, then the range of punishment is 10-20 but you would have to serve 10 years before you would be eligible for parole — so you’re not looking at an insignificant charge — you understand that ...
BERRY: Yes, my lawyers gave me a frank and brutal discussion about that earlier.
COURT: Okay. And that’s what lawyers should do. And I think even as recently as yesterday, didn’t Mr. Ruschell have some conversation with you, not as your attorney but more in terms of friendship?
BERRY: He said they made me an offer of two years probate — Alford plea; that’s all he said.
PROSECUTOR: There was no Alford plea — but there was a 2 year probation offer. Mr. Ruschell was going to counter with that....
COURT: Okay, Mr. Ruschell was going to ask for an Alford plea — but that’s close to what everything was; which raises this issue, at this point Mr. Ma-samoor, would that offer still be available?
PROSECUTOR: The plea would be; I would not agree to an Alford plea; we don’t historically do that.
COURT: Which that means, Mr. Berry, which I’m sure you understand this, but I just want to make sure this is in the record and give you one final chance to consider that — the offer is probation which means that you walk out of here and don’t have any time to serve — and two years — and that’s compared to what conceivably you could get 20 years.... Ultimately you have to make the decision and hopefully it’s an informed and thoughtful one and I can say that from experience, for good or bad, for the right reasons or the wrong reasons, criminal defendants usually when presented with an opportunity to walk away without serving any time usually take it — I mean I think that’s a fair statement....
BERRY: It’s a sweet offer.
COURT: So, I just want you to make sure you understand that — that you have the opportunity still to walk away — although that’s not completely correct in that you are limited by being on probation and you do have another felony conviction so I’m not saying that there are no consequences at all and I’m not trying to get you to plead guilty I’m just wanting to make sure that you understand folly the proceedings and the options that you have; do you believe that you do?
BERRY: Yes.
COURT: Do you want anymore time to consider that?
BERRY: No, that’s fine.
COURT: You want to proceed this morning with the trial?
BERRY: Yes.

Given this exchange, unlike the one in Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004), we find that Berry’s request to proceed pro se was unequivocal and that his decision was knowingly, intelligently and voluntarily made. We must keep in mind that our inquiry is whether Berry competently waived his right, not whether he was competent to represent himself. Godinez, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321. “It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance.” Faretta, 422 U.S. at 834. However, Berry’s choice “must be honored out of ‘that respect for the individual which is the lifeblood of the law,’ ” notwithstanding that he conducted his own defense, ultimately, to his detriment. Id. (citations omitted).

IV. Jury Instructions

On appeal, Berry contends that the jury instructions were erroneous. Berry failed to preserve this issue for appeal and, considering the instructions in their entirety, we find no palpable error. Accordingly, there is no merit to this assignment of error.

The decision of the Court of Appeals is vacated. The judgment and sentence of the Hopkins Circuit Court are reinstated.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, J.J., concur.

KELLER, J.,

dissents because he believes that the trial judge failed to adequately explain the perils of proceeding pro se as required by Wilson v. Commonwealth, 836 S.W.2d 872, 881-84 (Ky.1992), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).