text:
    James Anthony CHAMBERS, Appellant, v. The STATE of Texas, State.
    Nos. 2-04-219-CR, 2-04-220-CR.
    Court of Appeals of Texas, Fort Worth.
    June 9, 2005.
    Discretionary Review Refused Oct. 5, 2005.

      Pete Gilfeather, Forth Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín and Danielle A. LeGault, Asst. Crim. Dist. Attys., Fort Worth, for State.
    Panel B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

In two cases, the trial court revoked appellant’s deferred adjudication and adjudicated him guilty of attempting to possess diazepam by fraud and aggravated robbery with a deadly weapon. The trial court sentenced appellant to ten years’ confinement for the drug offense and twenty year’s’ confinement for the aggravated robbery.

In one point on appeal, appellant contends that the sentences imposed by the trial court are void because Judge Mike Thomas, the sitting judge of criminal district court number four who transferred the cases to the 396th district court (referred to in this opinion as the trial court), was disqualified because he formerly represented appellant on the drug offense and thus could not properly transfer the cases to the 396th district court.

The record shows that appellant was originally charged with the drug offense on March 10, 2000 in criminal district court number two. That court placed appellant on deferred adjudication. On May 22, 2001, appellant was charged in the trial court with aggravated robbery with a deadly weapon. In June 2001, both cases were transferred to criminal district court number four. Appellant pled guilty and received deferred adjudication on the aggravated robbery charge as well.

In October 2003, the State filed a motion to proceed to adjudication in both cases in criminal district court number four, which was the court overseeing appellant’s community supervision in both cases. Michelle Audet was appointed to represent appellant in both cases. In February 2004, the district attorney filed a motion requesting that the judge of criminal district court number four transfer appellant’s cases to the trial court because of “judicial conflict.” Judge Thomas granted the motion and transferred the case.

The constitutional and statutory grounds for judicial disqualification are mandatory and exclusive. Tex. Const, art. V, § 11; Tex.Code CriM. PROC. Ann. art. 30.01 (Vernon Supp.2004-05); Gamez v. State, 737 S.W.2d 315, 318 (Tex.Crim.App.1987); Ex parte Largent, 144 Tex.Crim. 592, 162 S.W.2d 419, 426 (op. on reh’g), cert. denied, 317 U.S. 668, 63 S.Ct. 72, 87 L.Ed. 536 (1942). Disqualification of a judge may be raised at any time. Gamez, 737 S.W.2d at 318. A judge is disqualified from sitting in any case in which he or she has represented the State or the defendant, in which he or she is a party, or in which he or she is related to the defendant or the injured party within the third degree. Tex.Code CRiM. Peoc. Ann. art. 30.01. Code of criminal procedure section 30.02 provides that if a judge is disqualified in a case, he or she should “certify that fact to the presiding judge of the administrative judicial district in which the case is pending and the presiding judge ... shall assign a judge to try such case.” Id. § 30.02 (Vernon 1989). A judge’s attempt to transfer a case in which he or she is disqualified is void and does not vest jurisdiction in the transferee court. Roll v. State, 143 Tex.Crim. 104, 157 S.W.2d 377, 381 (1941) (holding that disqualified judge may only perform ministerial acts in a pending case and transfer of case to another court was, at that time, discretionary). But see Tex. Gov’t Code Ann. § 24.303(b) (Vernon 2004) (providing that disqualified district judge “shall transfer the case or proceeding from his court to one of the other courts” (emphasis added)).

The only reference to Judge Thomas in the record of either case is on the docket sheet for the drug offense. The docket sheet lists “Michael Thomas” as appellant’s surety; it also shows Stuart Oliphant as appellant’s counsel. Appellant contends that Judge Thomas was one of his attorneys on the drug offense (pre-revocation). But there is no evidence in the record that Judge Thomas acted as appellant’s counsel, only as surety.

A surety has no further liability on a bond after the defendant has received deferred adjudication. Reed v. State, 702 S.W.2d 738, 741 (Tex.App.-San Antonio 1985, no pet.). Thus, once appellant received deferred adjudication on the drug offense, Judge Thomas no longer had any financial interest in the case, and there is no evidence in the record to show that Judge Thomas had any other interest in the case. We hold, based on the record before us, that Judge Thomas was not disqualified when he transferred appellant’s cases to the trial court. Accordingly, he was within his discretion to transfer the case, and jurisdiction vested in the trial court in accordance with the transfer order. See Tex. Gov’t Code Ann. § 24.303(a).

We overrule appellant’s sole point and affirm the trial court’s judgments.

      . Judge Thomas was not the sitting judge of that court at the time.

      . This statute was first enacted in 1969. See Act of Sept. 8, 1969, 61st Leg., 2d C.S., ch. 23, § 2.002(b), 1969 Tex. Gen. Laws 150, 151.

      . The docket sheet for the aggravated robbery case states that Deborah Kernan was appointed as appellant’s counsel on the original charge (pre-revocation).


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Peter William GONZALEZ, Appellant, v. Linda Anne TIPPIT, Appellee.
    No. 03-03-00517-CV.
    Court of Appeals of Texas, Austin.
    June 10, 2005.

      William H. Alberts, Christopher M. Benjamin, McLeroy, Alberts & Benjamin, P.C., Austin, for appellant.
    Daryl Gail Weinman, Morehart and Weinman, Austin, for appellee.

      Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellant Peter William Gonzalez challenges a trial court award of $13,400 in past due child support payable to appellee Linda Anne Tippit. In two points of error, Gonzalez contends that the trial court abused its discretion by denying his affirmative defense of voluntary relinquishment of actual possession of the child in excess of court-ordered periods and his counterclaims and requested offsets for actual support provided during the extra possession. Because we hold that the trial court did not abuse its discretion in finding that Gonzalez failed to prove he provided actual support, we need not reach his counterclaims for reimbursement and offsets for actual support provided. We will affirm the judgment of the trial court.

Background

Gonzalez and Tippit are the natural parents of the child, a daughter, and have never been married. On January 30,1996, Gonzalez filed an Original Petition in a Suit Affecting the Parent Child Relationship to establish his paternity and parental rights. Agreed temporary orders were entered into on March 11, 1996, which provided that Gonzalez and Tippit would be joint managing conservators and that Gonzalez would pay $200 each month in child support through the Travis County Domestic Relations Office with court-ordered visitation of two six-hour periods and one overnight period each week. Approximately two months after the entry of the temporary orders, Tippit and the child moved in with Gonzalez and he stopped paying child support. The length of time they lived together is disputed but appears to be between six and eight months from May or June to November or December of 1996. Child support payments never resumed. At trial, Tippit abandoned claims to any child support prior to September 1997. After Tippit moved out of Gonzalez’s home, the parties mutually expanded Gonzalez’s visitation from that described in the temporary order. Gonzalez asserts that the child has been living with him 50% of the time since 1996, and that he has provided $28,000 of support in the form of private school tuition. The parties dispute whether Gonzalez made this payment. Tippit argues that the tuition was a gift from Gonzalez’s brother to the child, while Gonzalez contends that his brother facilitated a bank loan for which Gonzalez has assumed liability and made payments.

Tippit filed her motion to enforce child support on March 11, 2003. At trial, Gonzalez pled a statutory affirmative defense and counterclaimed for offsets. See Tex. Fam.Code Ann. § 157.008 (West 2002). The district court held Gonzalez in contempt of court for failure to pay child support from the period of September 1997 to May 2003, denied his offsets and counterclaim, and assessed an arrearage of $13,400.

Gonzalez claims that the trial court abused its discretion in holding him in contempt and assessing the arrearage because the record was legally and factually insufficient to support the court’s denial of his affirmative defense that Tippit had voluntarily relinquished the child to him for more than the court ordered periods and that he had provided actual support during this time.

Discussion

Gonzalez argues that because he proved the voluntary relinquishment prong from section 157.008, the trial court was required to presume actual support and rule in his favor. Tippit argues that section 157.008 requires an obligor to show both voluntary relinquishment by the obligee and actual support. Before we can analyze the sufficiency of the evidence, we must determine whether the family code requires Gonzalez to prove he provided actual support.

Statutory construction is a matter of law, which we review de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). The primary rule of statutory interpretation is to give effect to the intent of the legislature. Fleming Foods of Tex. Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Texas courts.must consider, among other factors, the language of the statute, legislative history, the nature and object the legislature intended to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. Tex. Gov’t Code Ann. § 311.023 (West 1998); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); United Servs. Auto Ass’n v. Strayhorn, 124 S.W.3d 722, 728 (Tex.App.-Austin 2003, pet. denied). We consider disputed provisions in context, not in isolation. Texas Workers’ Comp. Comm’n v. Continental Cas. Co., 83 S.W.3d 901, 905 (Tex.App.-Austin 2002, no pet.); see Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999).

Section 157.008 provides an affirmative defense to a motion to enforce child support if the obligee voluntarily relinquished actual possession and control of the child to the obligor in excess of court-ordered visitation and the obligor supplies actual support during this period. Tex. Fam. Code Ann. § 157.008(a). An obligor who has provided actual support may request reimbursement for that support as a counterclaim against the obligee or may ask that it be calculated as an offset against the obligee’s claim of arrearage. Id. § 157.008(b).

Section 157.008 explicitly delineates an “affirmative defense” in cases of voluntary relinquishment. Id. § 157.008(a). The family code places the burden of proof on affirmative defenses to child support enforcement upon the obligor. Id. § 157.006. Indeed, the burden of pleading and proving an affirmative defense traditionally falls upon the party asserting it. See Tex.R. Civ. P. 94. (West 2002) (party asserting affirmative defense must affirmatively “set [it] forth” and plead it); Brownlee v. Brownlee 665 S.W.2d 111, 112 (Tex.1984) (defendant must show fact issue on every element of affirmative defense to avoid summary judgment); Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 91 (Tex.App.-Austin 1995, no writ) (defendant bears burden of proving affirmative defense).

This affirmative defense has two prongs: the voluntary relinquishment must have been in excess of court-ordered possession and access periods and the obli-gor must have provided actual support. Tex. Fam.Code Ann. § 157.008(b). These requirements are not alternatives but are conjunctively tied together with “and”; the defendant must show both in order to prevail. Also, identical mandatory language precedes both prongs of the affirmative defense. Id. We believe that the legislature, in explicitly labeling the argument an affirmative defense, using the conjunctive “and,” and using the same mandatory language, intended to require the obligor asserting the defense to prove both voluntary relinquishment and actual support in order to prevail. There is nothing in the language of the statute from which we can infer that the legislature intended courts to presume support once they have made a finding of relinquishment.

Section 157.008 is a re-enactment of the prior Texas Family Code section 14.41(c). Gonzalez argues that the change in language between the two statutes requires us to jettison all prior precedent interpreting those statutes, and that it removes the obligor’s burden to show actual support paid. Tippit contends that the relevant statutory language and the allocation of burdens have not substantially changed. To determine the effect of the statutory change in language, we compare the two statutes in context. Continental Cas. Co., 83 S.W.3d at 905; Strayhorn, 124 S.W.3d at 728. When the legislature reenacted the affirmative defense provision, it omitted the phrase, “the child support order continues unabated until further order of the court as provided in section 14.08 of this code.” See Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1163, repealed and reenacted by Acts of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 177, current version at Tex. Fam.Code Ann. § 157.008 (West 2002). The excluded phrase specifically refers to former section 14.08, which was repealed. Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1,1995 Tex. Gen. Laws, 113, 282.

Although the legislature changed the language from these two statutes, the family code still requires a court order to modify child support. See Tex. Fam.Code Ann. § 154.124 (West Supp.2004-05); Sudan v. Sudan, 145 S.W.3d 280, 285 (Tex.App.-Houston [14th Dist] 2004, pet. filed) (“In Texas, the Legislature has explicitly required that parental agreements concerning child support be expressly approved by the court.”); In re M.C.R., 55 5.W.3d 104, 109 (Tex.App.-San Antonio, 2001, no pet.) (“[E]ven parents of the child may not settle support claims until after the arrearages have been confirmed and cumulated in a money judgment or until the trial court has lost jurisdiction to enforce the unpaid support debt.”); In re D.S., 76 S.W.3d 512, 517 (Tex.App-Houston [14th Dist.] 2002, no pet.) (“Once child support is set, even with automatic increases, and no appeal is taken, the child support is fixed until modified upon application.”). Whatever the effect of the change in language, it is clear that a child support judgment remains in force unless and until a court order changes it. We do not believe that the legislature’s omission of the repetition of this language from former section 14.08 in section 157.008 nullified in any way its effectiveness, particularly as the legislature reaffirmed the practical result of the rule in section 154.124. Furthermore, Gonzalez does not explain how the omission of the language has any effect upon the allocations of burdens in proving this affirmative defense. Considering that the code explicitly requires the obligor to “prove the affirmative defense by a preponderance of the evidence,” it does not appear to us that the legislature intended to alter the burdens of proof for child support affirmative defenses.

Gonzalez argues that we should follow the Corpus Christi court’s holding in In re A.M., 101 S.W.3d 480, 487 (Tex.App.-Corpus Christi 2003, no pet.), that after section 14.41(c) was reenacted as section 157.008, the legislature must not have intended to require any proof or accounting of expenses because it omitted the phrase, “the child support order continues unabated until further order of the court as provided in section 14.08 of this code.” Id. We believe Gonzalez overstates the holding in AM. Although the court offered no analysis of the current language of the statute, it is true that the court believed that the legislature intended to change the practice of forcing an obligor in possession of the child to produce “an exact accounting of expenditures.” Id. at 487. However, the court did not address the argument presented here, that support may be presumed upon a showing of voluntary relinquishment beyond that granted by the court. Rather, the court was rejecting a requirement that the obligor prove an itemized account of expenditures to establish actual support. Id. at 486-87. In this respect, our opinions are not in conflict; the question of how an obligor may carry his burden of proving he provided actual support is not before us.

Our reading of section 157.008 is similar to that in Curtis v. Curtis, 11 S.W.3d 466 (Tex.App.-Tyler 2000, no pet.). Curtis acknowledged the changes in the statute and held that the obligor pleading the affirmative defense is still responsible for proving actual support in addition to voluntary relinquishment in excess of the court-ordered periods. Id. at 473-474; see Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex.App.-Waco 1994, no writ). Under Curtis’s and our reading of the statutes, the change in language did not change the division of burdens between the two parties. 11 S.W.3d at 472. The obligee bears the burden of proving that child support was due and not paid. Id. at 471. Once the obligee has met that burden, the obli-gor may plead the affirmative defense of section 157.008 and bears the burden of proving the elements of the defense-voluntary relinquishment in excess of court-ordered periods and the payment of actual support. Id. at 472; see Buzbee, 870 S.W.2d at 339. If the obligor fails to prove either arm of the defense, he or she fails to prove the claim. Curtis, 11 S.W.3d. at 473-74.

Although the level of proof required to show actual support is fairly low, the obligor pleading the affirmative defense must provide some proof. Id. at 473; see Rinehold v. Rinehold, 790 S.W.2d 404, 406 (Tex App.-Houston [14th Dist.] 1990, no writ) overruled on other grounds, Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996) (evidence of household expenses divided by number of persons in household sufficient to sustain offset when child lived with obligor father full time). Requiring an obligor to present evidence of support is particularly valuable in those cases in which the amount of time a child spent with an obligor parent is indeterminate. Even here, though Tippit does not contest possession, it does not necessarily follow that in having 50% of possession an obligor has been providing a full 50% of support. This reading also addresses the practical concern that, without some evidence of the amount of money spent, courts, which are still required to calculate arrearages, will have no rehable way to calculate actual support deductible from those arrearages. See Lewis v. Lewis, 853 S.W.2d 850, 855 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding that without expenditure evidence, court was unable to consider and apply offset and counterclaim).

We hold that obligors asserting this affirmative defense must plead and prove both prongs of section 157.008.

Gonzalez’s claim

Gonzalez contends that the record was legally and factually insufficient for the court to deny his affirmative defense because there was no probative evidence that would support the denial of the defense and such a great weight and preponderance of evidence in support of it as to make the court’s denial an abuse of discretion. See In re Estate of King, 160 Tex. 662, 244 S.W.2d 660, 660 (1951); Echols v. Olivarez, 85 S.W.3d 475, 476-77 (Tex.App.-Austin 2002, no pet.); Burtch v. Burtch, 972 S.W.2d 882, 888-89 (Tex.App.-Austin 1998, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.-El Paso 1998, no pet.). He argues that the legal and factual insufficiency of the evidence in support of rejecting his affirmative defense, voluntary relinquishment, requires the reversal of the trial court’s child support order. An order affecting child support, however, is not easily overturned; the complaining party must show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

In reviewing the legal sufficiency of the evidence, an appellate court considers only the evidence that supports the trial court’s finding and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex.App.-El Paso 2000, no pet.). If any probative evidence supports the trial court’s determination, it must be upheld. Estate of King, 244 S.W.2d at 661-62.

In reviewing the factual sufficiency of the evidence, we examine all the evidence and reverse only if the trial court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. at 660; Burtch, 972 S.W.2d at 888; Lindsey, 965 S.W.2d at 591. A reviewing court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court’s findings. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985); Southwestern Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Abernathy v. Fehlis, 911 S.W.2d 845, 848 (Tex.App.-Austin 1995, no writ).

Where, as here, the sufficiency of the evidence and abuse of discretion standards of review both apply, we employ a hybrid analysis in which a determination of the sufficiency of the evidence provides guidance in determining if the action of the trial court was so against the great weight and preponderance of the evidence as to be manifestly unjust. Estate of King, 244 S.W.2d at 660; Echols, 85 S.W.3d at 477; Burtch, 972 S.W.2d at 888. In applying this standard, we engage in a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion by making a decision that was arbitrary or unreasonable based on the evidence elicited. Echols, 85 S.W.3d at 477-78; Lindsey, 965 S.W.2d at 592. A traditional sufficiency review is incorporated in the first prong of this hybrid appellate review. Echols, 85 S.W.3d at 478.

Gonzalez’s argument is that he need only show there was no probative evidence to rebut his allegation that Tippit had voluntary relinquished the child in excess of the court ordered period, and that he is entitled to an inference of support thereafter; since the increase in possession is uncontested, he asserts that there were no grounds to deny the defense. However, having determined that Gonzalez bore the burden of proving both prongs of his affirmative defense, we hold that he must show that there was no probative evidence on which the court could have denied his claim for failure to meet either prong of the defense. Estate of King, 244 S.W.2d at 661-62; Curtis, 11 S.W.3d at 473-74.

As proof of actual support, Gonzalez testified that he paid private school tuition for his daughter at Tippit’s request through a bank loan his brother facilitated. In her testimony, Tippit denied that she requested the tuition, claiming the private school was Gonzalez’s idea, and denied that Gonzalez paid anything, claiming instead that the tuition was a gift from Gonzalez’s brother. The brother did not testify and no loan paperwork or other receipts were submitted to the trial court.

In a legal sufficiency review, we look only to the evidence and inferences that support the trial court’s decision. Garza, 395 S.W.2d at 823; Jenkins, 16 S.W.3d at 477. In the face of Tippit’s testimony, it is not possible for us to say that there was no probative evidence to support the trial court’s finding, and we must hold the evidence legally sufficient. See Curtis, 11 S.W.3d at 474; Buzbee, 870 S.W.2d at 340. Nor can we say that, when examined in a neutral light, the trial court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust and therefore factually insufficient. Estate of King, 244 S.W.2d at 660; Burtch, 972 S.W.2d at 888. The trial court is the sole judge of credibility; it was well within its discretion to believe Tippit’s account and not Gonzalez’s. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). We therefore hold that (1) there was sufficient information upon which the trial court could exercise its discretion in determining that Gonzalez did not carry his burden of showing he provided actual support, and (2) the trial court’s decision was not arbitrary or unreasonable based upon the evidence elicited. See Echols, 85 S.W.3d at 477-78; Lindsey, 965 S.W.2d at 592.

Because we have held that Gonzalez must prove both prongs of section 157.008 and that it was within the trial court’s discretion to find against Gonzalez on the second prong, we need not determine whether there was any evidence to counter his assertion that Tippit voluntarily relinquished the child to him for periods in excess of court-ordered visitation. Even assuming that he conclusively proved voluntary relinquishment, the court could have reasonably determined that he did not prove actual support and rejected his affirmative defense.

We hold that the trial court did not abuse its discretion in denying Gonzalez’s affirmative defense, and we need not address his counterclaims for offsets based upon that defense.

Conclusion

Because Gonzalez failed to meet his burden of proving the second prong of the statutory affirmative defense to a motion to enforce child support, the trial court did not abuse its discretion in denying his affirmative defense or counterclaims and offset demands. We affirm the judgment of the trial court.

      . This claim was disputed at trial, but the trial court made no finding on the issue and Tippit stipulates to Gonzalez’s statement of the facts concerning the child’s living situation in her brief.

      . § 157.008 reads, in pertinent part, as follows:
      Affirmative defense to motion for Enforcement of Child Support.
      (a) An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obli-gee voluntarily relinquished to the obligor actual possession and control of a child.
      (b) The voluntary relinquishment must have been for a time period in excess of any court ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.

      (d) An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee
      Tex. Fam.Code Ann. § 157.008(a), (b), (d) (West 2002).

      . The trial court gave Gonzalez credit for two months in which the $200 in child support was paid.

      . Affirmative Defense to Motion for Enforcement

        (a) The issue of the existence of an affirmative defense to a motion for enforcement does not arise unless evidence is admitted supporting the defense.
      (b) The respondent must prove the affirmative defense by a preponderance of the evidence.
      Tex. Fam.Code Ann. § 157.006 (West 2002).

      . Former Texas Family Code § 14.41(c) provided as follows:
      Possession of child by Obligor. If the managing conservator has voluntarily relinquished to the obligor the actual care, control, and possession of a child for a time period in excess of the court ordered periods of possession of and access to the child, the child support order continues unabated until further order of the court as provided by Section 14.08 of this code. However, an obligor who has provided actual support to the child during such time periods may seek reimbursement for that support as a counterclaim or offset against the claim of the managing conservator. An action against the managing conservator for support supplied to a child shall be limited to the amount of periodic payment previously ordered by the court.
      Act of May 27, 1985, 69th Leg., R.S., ch. 232, § 9, 1985 Tex. Gen. Laws 1158, 1163, repealed and reenacted by Acts of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 177, current version at Tex. Fam.Code Ann. § 157.008 (West 2002).

      . Agreement Concerning Support
      (a) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variations from the child support guidelines provided by Subchapter C. [footnote omitted].
      (b) If the court finds that the agreement is in the child's best interest, the court shall render an order in accordance with the agreement.
      (c) Terms of the agreement pertaining to child support in the order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.
      (d)If the court finds the agreement is not in the child’s best interest, the court may request the parties to submit a revised agreement or the court may render an order for the support of the child.
      Tex. Fam.Code Ann. § 154.124 (West Supp. 2004-05).

      . "It is not fair or reasonable to expect persons in appellee’s position to keep records which may be needed to be presented in court someday." In re A.M., 101 S.W.3d 480, 487 (Tex.App.-Corpus Christi 2003, no pet.).

      . Moreover, insofar as A.M. can be read to no longer require an obligor to provide any proof of actual support during periods of excess relinquishment, such language is dicta. In A.M. the trial court filed findings of fact that the children were relinquished in excess of court-ordered access periods, that the obligee provided no support, and that the obligor did pay actual child support during those periods; these findings were not attacked or challenged in the trial court or in the original brief in the appeal. In re A.M., 101 S.W.3d at 486. Because the trial court in A.M. found actual support and no party challenged that finding on appeal, the case did not present a question regarding whether the court should presume support in a case in which there was proof of relinquishment but not of actual support.

      . A.M. criticizes Curtis reliance on precedent from before the change in the statute, but distinguishes Curtis because it does not reach the issue in A.M., which was what the amount of the offsets should be. In re A.M., 101 S.W.3d at 487.


author: WANDA McKEE FOWLER, Justice.

text:
    Aramus Deshon HOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00721-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.
    Page E. Janik, Houston, for appellants.
    Eric Kugler, Houston, for appellees.
    Panel consists of Chief Justice Hedges and Justices Fowler and Frost.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant pleaded guilty to evading arrest using a motor vehicle, a felony offense. See Tex. Penal Code § 38.04. The trial court sentenced appellant to two years’ imprisonment in a state jail. Appellant asserts 1) the trial court did not have jurisdiction over his cause due to a faulty indictment; 2) the sentence handed down was void since his indictment alleges only a misdemeanor; 3) he did not knowingly and voluntarily plead guilty to the offense charged; and 4) his sentence is excessive in violation of both the state and federal constitutions. We affirm.

I. Factual and Procedural Background

On July 11, 2003, appellant drove his motorcycle past Officer J.E. Matamoros, who was on the side of the Gulf Freeway with a laser device recording the speeds of passing cars. Upon recording appellant’s speed at 82 miles per hour — 22 miles per hour above the speed limit — Officer Mata-moros got into his car and pursued appellant. Appellant darted across all southbound lanes of traffic to exit the freeway at Airport Boulevard. Appellant glanced back to find that Officer Matamoros was still in pursuit, at which time appellant ran a red light at the Airport Boulevard intersection, disrupting traffic, reentered the Gulf Freeway and weaved in and out of traffic at high speeds. During the pursuit, Officer Matamoros noted that he himself was traveling at 135 miles per hour and still was losing ground to the fleeing appellant. Appellant again exited the freeway, this time at Fuqua Street, and continued south to the intersection of 1-45 and Beltway 8, only to find that two wrecker trucks, whose drivers had been listening to the chase on their police band radios, had blocked the intersection. Appellant then stopped his flight, got off of his motorcycle and raised his arms in surrender.

The State charged appellant with evading arrest. Appellant pleaded guilty without a sentencing recommendation. The court, after hearing the facts, sentenced appellant to two years’ incarceration in state jail. Appellant now presents this court with five points of error. Points of error one, two, and three are based upon appellant’s contention that his indictment alleged a misdemeanor rather than a felony, while points of error four and five concern the allegedly excessive nature of his sentence.

II. Analysis

Point of Error One — Trial Court Jurisdiction

Appellant’s first point of error is that the indictment alleged only a misdemeanor offense, leaving the district court — a felony court — without jurisdiction. See Tex. Const, art. V, § 8; Tex. Code CRiM. PROC. art. 4.05.

The adequacy of an indictment is a question of law subject to de novo review. State v. McCoy, 64 S.W.3d 90, 92 (Tex.App.-Austin 2001, no pet.); State v. Hoffman, 999 S.W.2d 573, 574 (Tex.App.-Austin 1999, no pet.); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (en banc) (holding that mixed questions of law and fact not turning on credibility may be reviewed de novo); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997) (en banc) (holding that purely legal questions are reviewed de novo).

The section of the penal code under which appellant is charged — Section 38.04 — states in part that, “A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.” Tex. PeNal Code § 38.04(a). The statute classifies this offense as a misdemeanor. Id § 38.04(b). The offense is a felony, however, in the following circumstances:

(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section.

Id. § 38.04(b)(l)-(b)(2)(A). Appellant claims that the indictment under which he was charged was faulty. The indictment states in pertinent part,

the Defendant, heretofore on or about July 11, 2003, did then and there unlawfully, intentionally flee from J. Matamo-ros, hereafter styled the Complainant, a peace officer employed by Houston Police Department, lawfully attempting to detain the Defendant, and the Defendant knew that the Complainant was a peace officer attempting to detain the Defendant, and the Defendant used a motor vehicle while he was in flight.

Thus, the indictment alleges each element of the misdemeanor crime: 1) intentional flight; 2) from a person the defendant knows is a peace officer; 3) who is lawfully attempting to arrest or detain the defendant. But the State intended to elevate the offense from a misdemeanor to a state jail felony by alleging one additional element — the use of a motor vehicle. The appellant claims that in order to charge him with the state jail felony offense of evading arrest, the State must have pleaded and proved the elements of the misdemeanor offense plus both use of a vehicle while in flight and that he had not been previously convicted under section 38.04. Appellant concludes that although the State .pleaded and proved the use of a motor vehicle, because the State did not plead and prove an absence of prior convictions under section 38.04, the indictment can only be construed to allege the lesser misdemeanor offense.

We disagree. “An indictment or information must by direct and positive aver-ments allege all of the constituent elements of the offense sought to be charged.” Chance v. State, 563 S.W.2d 812, 814 (Tex.Crim.App.1978). The Penal Code defines “element of offense” as, “(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense.” Tex. Penal Code § 1.07(a)(22). The nonexistence of prior convictions under section 38.04 does not fall into any of these categories. By implication, this means the Legislature did not intend for it to be an element of the offense. See id; see also Hooker v. State, No. 12-02-00173-CR, 2003 WL 22048243, at *4 (Tex.App.-Tyler Aug.29, 2003, pet. ref'd) (not designated for publication) (analyzing the statutory language of section 38.04 and holding that the legislature did not intend for the prosecution to plead and prove a negative). We overrule appellant’s first point of error.

Point of Error Two — Sentence

In his second point of error, appellant asserts that because the indictment alleged only a misdemeanor, punishing the crime as a felony was reversible error. See Ex parte McIver, 586 S.W.2d 851, 854 (Tex.Crim.App. [Panel Op.] 1979) (holding that when statute authorized jury to recommend probation as to a period of confinement and impose a fine, a sentence that did the opposite by assessing confinement and recommending probation of a fine was deemed void). While this issue is not jurisdictional, it does turn on the same question as issue number one — whether the indictment alleged a felony or a misdemeanor. Thus, the same standard of review and reasoning would apply here to produce the same result — that the indictment did in fact allege a felony. Therefore, the punishment assessed was in agreement with the crime charged by the indictment.

Point of Error Three — Guilty Plea

Appellant also claims that his guilty plea was not knowingly and intelligently entered into, as required by the United States Constitution. See U.S. CONST. amend. XIV § 1; Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). To enter a guilty plea knowingly and intelligently means that the defendant is aware of the consequences of his plea and what it is that he is waiving when he pleads. Henderson v. Morgan, 426 U.S. 637, 650, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). Appellant does not claim that he did not know he was being charged with a felony, however, nor does he challenge the sufficiency of the court’s admonishment. Instead, he claims his guilty plea to a felony offense was invalid because the charge in the indictment was allegedly a misdemeanor.

Thus, this claim, though disguised as an attack on the plea itself, presents the same alleged error as presented in issues one and two. As discussed above, the indictment charged felony evading arrest, and appellant understood he was pleading guilty to a felony offense. Therefore, we overrule this point of error.

Points of Error Four and Five — Punishment

In points of error four and five, appellant asserts that the sentences lacked proportionality to the crime as required by the Texas and United States constitutions. See Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that a life sentence for a minor offense under state recidivist statute was unconstitutionally disproportionate to the crime); Tex. Const, art. I, § 13. Appellant asserts that because there were no injuries or accidents resulting from the evasion, a sentence of two years’ confinement, the maximum sentence under the statute, was disproportionate to the offense committed.

Even constitutional points of error must be asserted at trial or they will be deemed waived. See Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.1986) (en banc) (holding that error pertaining to sentencing could not be appealed unless it was raised in the trial court); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (holding that claims of cruel and unusual punishment under both the state and federal constitutions were waived because they were not properly raised in the trial court). There is no evidence in the record, nor does appellant point to any evidence, that he timely objected to the sentence. Therefore, appellant has waived these issues.

Even if appellant had preserved error, the sentence was neither cruel nor unusual. Texas courts repeatedly have held that a punishment within the statutory guidelines is not excessive, and United States Supreme Court precedent supports this proposition. See Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (holding that the line dividing petty from felony larceny and the appropriate punishment under recidivist statute were both largely within the discretion of the state legislature); Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973) (declining to find a punishment for robbery with a firearm unconstitutional when it was within the statutory range); Darden v. State, 430 S.W.2d 494, 496 (Tex.Crim.App.1968) (holding that if punishment is within the statutorily prescribed range, it is beyond the province of the court to pass upon the question of excessive punishment); Young v. State, 644 S.W.2d 18, 22 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd) (holding that a sentence of twenty five years for assisting in an aggravated robbery was well within statutory boundaries and therefore constitutional). The permissible range of confinement for a state jail felony is 180 days to two years in a state jail. Tex. Penal Code § 12.35(a). The sentence imposed by the trial court was within the statutory range, and, therefore, not unconstitutionally cruel and unusual.

III. Conclusion

For the foregoing reasons, each point of error raised by appellant is overruled and the judgment of the trial court is affirmed.

      . Appellant did not preserve error as to this issue. Because this type of jurisdiction is fundamental, however, it may be raised for the first time on appeal, without the usual requirements for preservation of error. Bird v.Kornman, 152 S.W.3d 154, 160 (Tex.App.Dallas 2004, pet. denied).

      . We distinguish cases such as Calton v. State, 132 S.W.3d 29, 32-33 (Tex.App.-Fort Worth 2004, pet. granted), and Ford v. State, 112 S.W.3d 788, 791 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In each of those cases the State alleged third-degree felony evading arrest under section 38.04(b)(2), and the courts held that the State must plead and prove prior conviction as an element of the crime of felony evading arrest. This is because in a(b)(2) case, prior conviction is part of the forbidden conduct — i.e. recidivism— that the statute intends to punish. The present case, however, involves a charge of evading arrest as a state jail felony under (b)(1). The forbidden conduct that (b)(1) is meant to punish is the evasion of arrest only.


author: ADELE HEDGES, Chief Justice.

text:
    Michael Jamil TYLER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00544-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.

      Roland B. Moore, III, Houston, for appellants.
    William J. Delmore, III, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Michael Jamil Tyler, appeals from his conviction for the capital murder of Vlryn Veal. A jury found appellant guilty, and the trial court assessed punishment at life in prison. On appeal, appellant contends that (1) the evidence is legally insufficient to support the verdict because the only evidence of an element of the crime was in the form of testimonial hearsay admitted in violation of the Sixth Amendment right of confrontation, and (2) the trial court erred in ruling that the hearsay statement was admissible as an excited utterance. U.S. CONST, amend. VI. We affirm.

Background

On December 24, 2002, Vlryn Veal was leaving a bar with his stepfather and a coworker when a man approached Veal and asked him for a light. Veal went to the driver’s side of his truck and retrieved a lighter. The man then shot Veal in the abdomen, and Veal later died following surgery.

At trial, two eyewitnesses, Veal’s stepfather and co-worker, identified appellant as the man who shot Veal. They had both previously identified appellant in photo arrays. Appellant was also connected by evidence to the vehicle that was used by the assailant to flee from the crime scene. Also at trial, Officer Kirk Milton of the Houston Police Department testified that after the shooting he encountered Veal at the hospital. He stated that Veal told him what had happened outside the bar, including that the assailant had demanded his wallet immediately prior to shooting him. There was no other evidence regarding what was said between Veal and his assailant when they went to Veal’s truck to get a lighter. The two eyewitnesses were on the opposite side of the truck and could not hear what was being said. The importance of Milton’s testimony was that it permitted the jury to convict appellant of capital murder because the murder was committed during the commission of a robbery. See Tex. Pen.Code AnN. § 19.03(a)(2) (Vernon Supp.2004).

Prior to trial, the defense filed a motion to suppress, contending that Milton’s testimony regarding what Veal told him was testimonial hearsay, and, as such, its admission would violate the Confrontation Clause of the Sixth Amendment. Milton was the only witness called at the hearing. He testified that he was dispatched to the crime scene at 11:43 p.m. and arrived at 11:48 p.m. After taking a few minutes to secure the scene and hand it over to later arriving officers, Milton followed Veal’s ambulance to the hospital, which took fifteen to twenty minutes. There, he found Veal being prepared for surgery by several of the hospital staff, who appeared to be in a hurry. Milton was in uniform; Veal was still lying on the ambulance gurney, and there was a lot of blood around him. He appeared to be in great pain; he was moaning and squirming. Milton «asked Veal if he was “Mr. Veal,” and without further prompting, Veal told Milton what had happened to him that night, including that the assailant pulled a gun on him and asked for his wallet. Veal said that he refused to hand over his wallet but told the assailant he would still give him a light; when Veal turned around with the lighter, the assailant shot him in the stomach. During his recitation of events, Veal’s voice was “crackly,” and he paused several times. He kept repeating that he could not believe that he had been shot. Milton specifically stated that he just listened to Veal and did not ask questions. He said that he wanted to get some initial information regarding the events that had transpired. He further stated that Veal was taken into surgery after telling Milton about the events.

At the conclusion of Milton’s testimony, the parties stipulated that the hospital records showed that the ambulance left the scene at 11:53 p.m. and arrived at the hospital at 12:01 a.m. and that Veal was taken to the operating room at 12:16 a.m. The trial court then ruled from the bench that Veal’s statements to Milton were not testimonial in nature and were admissible.

Confrontation Clause

In his first issue, appellant contends that the evidence is legally insuffi-dent to support the verdict because the only evidence of a particular element of the crime was in the form of testimonial hearsay admitted in violation of the Sixth Amendment right of confrontation, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court reexamined the admissibility of hearsay statements under the Confrontation Clause. Prior to Crawford, the issue had been governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, hearsay statements were admissible under the Confrontation Clause if the statements fell under “a firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” 448 U.S. at 66, 100 S.Ct. 2531. In Crawford, the Court reviewed the history of the Confrontation Clause and the wrongs that it was meant to redress, particularly the use of ex parte examinations as evidence against an accused, as occurred in the civil-law mode of criminal procedure. 541 U.S. at 50, 124 S.Ct. 1354. These examinations were undertaken by justices of the peace or other government officials outside the presence of the accused or his representatives and were sometimes read in court in lieu of live testimony. Id. at 43, 50-51, 124 S.Ct. 1354. The Cranford court therefore drew a distinction between testimonial and non-testimonial hearsay and held that testimonial hearsay is inadmissible under the Confrontation Clause unless the declarant is unavailable and the accused had a prior opportunity to cross-examine the declar-ant. Id. at 53-54, 59, 68-69, 124 S.Ct. 1354.

The Crawford court purposely did not provide a comprehensive definition of testimonial hearsay. Id. at 68 & n. 10, 124 S.Ct. 1354. However, it did state that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354. The Court explained that “[tjhese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id. The Court additionally highlighted, but refused to expressly adopt, certain formulations of what constitutes testimonial statements: (1) ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extra-judicial statements contained in formalized testimonial materials, such as depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial. Id. at 51-52, 124 S.Ct. 1354.

It could therefore be concluded that testimonial statements involve a de-clarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings. Wiggins v. State, 152 S.W.3d 656, 659 (Tex.App.-Texarkana 2004, pet. ref'd) (citing United States v. Saget, 377 F.3d 223, 228 (2d Cir.2004)). Further, it is apparent that the question of whether a statement is testimonial turns not on the content of the statement but on the procedure used to procure the statement. Scott v. State, 165 S.W.3d 27, at 46 (Tex.App.-Austin, 2005, no pet. h.).

Since Crawford was issued, the subject of just what constitutes testimonial statements by an out-of-court declarant has become increasingly well-trod ground in Texas courts. Appellant and the State point to two apparently conflicting cases dealing with statements made to police at a hospital shortly after violent events involving the declarants. In Cassidy v. State, the Austin Court of Appeals held that a police officer’s interview of a stabbing victim at a hospital one hour after the assault did not constitute police interrogation as contemplated by Crawford; thus, the resulting statement was nontestimonial. 149 S.W.3d 712, 714, 716 (Tex.App.-Austin 2004, pet. ref'd), cert. denied, — U.S. -, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005). In Wall v. State, the Corpus Christi Court of Appeals expressly disagreed with the Austin court and held that an officer’s questioning of a beating victim in a hospital constituted interrogation; thus, the resulting statement was testimonial under Crawford. 143 S.W.3d 846, 851 (Tex.App.-Corpus Christi 2004, pet. granted). The court emphasized that the statement was given in response to investigative questioning. Id.

The State urges us to adopt the position taken by the Austin Court, and appellant urges us to take the position adopted by the Corpus Christi Court. However, we decline to take sides in this disagreement because the circumstances in the present case are fundamentally different from those encountered in either of these prior opinions. Here, it is undisputed that there was no investigative questioning of Veal at the time he gave his statement. Officer Milton asked Veal if he was “Mr. Veal”; Milton specifically testified that he asked no further questions and that Veal simply told him what happened. Thus, Veal clearly did not give his statement in response to police interrogation. See Scott, 165 S.W.3d at 45-46 (holding that statement to police was testimonial because given in response to structured police questioning); Wilson v. State, 151 S.W.3d 694, 698 (Tex.App.-Fort Worth 2004, pet. refd) (holding that statement to police was non-testimonial where declarant was not responding to structured police questioning). The statements were not being recorded in any manner and were given in a particularly informal setting, while Veal was being prepared for surgery by hospital staff. See Samarron v. State, 150 S.W.3d 701, 707 (Tex.App.-San Antonio 2004, pet. ref'd) (holding that signed, written statement given at police station after police questioning was testimonial). It appears that Veal simply wanted to let the officer know what happened to aid the start of the investigation. C.f.Spencer v. State, 162 S.W.3d 877, at 879, 881-82 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.) (holding that initial police-victim interaction at crime scene was not testimonial). Based on these circumstances, we hold that Veal’s statement was not testimonial in nature.

Appellant makes no further argument regarding the sufficiency of the evidence. Accordingly, we overrule his first issue.

Excited Utterance

Having determined that the hearsay statements were not testimonial, we turn to appellant’s second issue in which he contends that the trial court violated the Texas Rules of Evidence by admitting the statements under the excited utterance exception to the rule generally excluding hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Hearsay is not admissible unless it falls under one of the exceptions specified in the Rules of Evidence. See Tex.R. Evid. 802. Whether a hearsay statement is admissible under Rule 802 is a matter within the discretion of the trial court. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). The excited utterance hearsay exception permits admission of a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). Here, the State introduced Veal’s out-of-court statements to prove that appellant demanded Veal’s wallet before shooting him. It did so by specific reference to the excited utterance hearsay exception.

Appellant’s only objection in the trial court to the admission of this evidence was that the statements were testimonial in nature. Appellant never objected that the statements were not excited utterances. Consequently, appellant failed to preserve this argument for appeal. See Tex.R.App. P. 33.1(a) (providing that to preserve error for appellate review party must make a timely and sufficiently explicit request, objection, or motion in the trial court); Resendiz v. State, 112 S.W.3d 541, 547 (Tex.Crim.App.2003) (holding that error was not preserved where appellate argument did not comport with trial objection).

Furthermore, even if appellant had preserved this argument, we find that it is without merit. The critical determination in regard to the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement. Zuliani, 97 S.W.3d at 595-6. We may consider the time elapsed between the event and the statement and whether the statement was in response to questioning, but these factors are not necessarily dis-positive. Id. Ultimately, we must determine whether the statement was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection. Id. at 596.

Here, there was considerable evidence that at the time he made the statements Veal was still dominated by the emotions, excitement, fear, or pain of having been shot. Although it cannot be determined for certain how much time elapsed from the shooting to the making of the statements, it is clear from Milton’s testimony and the hospital records that it was not a lengthy period of time. The ambulance left the scene at 11:53 p.m. and Veal went into the operating room at 12:16 a.m. Milton said that Veal gave the statement at the hospital before entering the operating room. See Lawton v. State, 913 S.W.2d 542, 553-54 (Tex.Crim.App.1995) (holding statements at hospital were excited utterances where declarant had witnessed shooting of his father-in-law about one hour prior to making the statements); Ross v. State, 879 S.W.2d 248, 248-49 (Tex.App.-Houston [14th Dist.] 1994, pet. refd) (holding statement made to ambulance attendant thirty to forty-five minutes after declarant was shot was excited utterance); Parks v. State, 843 S.W.2d 693, 696-98 (Tex.App.-Corpus Christi 1992, pet. ref'd) (holding that statements at hospital did not constitute excited utterances when made six hours after declarant was shot and after operation and time for recovery); Mathews v. State, 835 S.W.2d 248, 249-50 (Tex.App.-Fort Worth 1992, no pet.) (holding that statement made to paramedic in ambulance was excited utterance despite lack of evidence regarding time that had elapsed between declarant being shot and making statement). Milton stated that Veal was in pain when he made the statements and that he made the statements without questioning or prompting from Milton. Further, Veal repeatedly expressed surprise at having been shot. Thus, there was sufficient evidence for the trial court to conclude that Veal’s statements resulted from impulse rather than reason and reflection. See Zuliani, 97 S.W.3d at 596. The trial court did not abuse its discretion in admitting Veal’s statement. Accordingly, we overrule appellant’s second issue.

We affirm the trial court’s judgment.


author: CHARLES W. SEYMORE, Justice.

text:
    Nakeithia MIKEL, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00489-CR.
    Court of Appeals of Texas, Houston (14th Dist).
    June 21, 2005.

      Nicole Wignall Deborde, Houston, for appellants.
    Carol M. Cameron, Houston, for appel-lees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

CHARLES W. SEYMORE, Justice.

A jury convicted appellant, Nakeithia Mikel, of possession of a controlled substance. After the trial court found two enhancement paragraphs true, it assessed punishment at twenty six-years’ imprisonment. In three issues, appellant contends (1) the trial court erred in denying her motion to suppress, and (2) the evidence is insufficient to prove the enhancement paragraphs were true. We affirm appellant’s conviction, but remand for a new punishment hearing.

I.Background

On November 10, 2003, Deputy Marcus Staudt of the Harris County Sheriffs Department responded to a complaint from a Houston-area apartment complex regarding possible drug activity at one of the apartment units. Upon arriving at the apartment complex, Deputy Staudt observed appellant sitting in the parking lot with her children and several other individuals. Deputy Staudt knew from past experience that appellant resided in the apartment unit suspected of drug activity and thus, approached appellant to inquire about the complaint.

Appellant informed Deputy Staudt that there was no drug activity inside the apartment and management had locked her out of the apartment for failing to pay rent. Deputy Staudt contacted the management office and requested that appellant be allowed back into her apartment. The management office sent a maintenance person to let appellant into her apartment. When the maintenance person opened the door, Deputy Staudt noticed a strong odor of marijuana emanating from the apartment.

Deputy Staudt testified that although he smelled marijuana, he did not enter the apartment at that time. Deputy Staudt approached appellant and obtained written consent to search the apartment. Deputy Staudt and several other officers who had arrived at the scene searched the apartment and discovered marijuana and ecstacy in the living room and a bottle of codeine on a table in the bedroom. Following a jury trial, appellant was found “not guilty” of possession of marijuana and ecstasy, but “guilty” of possession of codeine.

II.Issues on Appeal

Appellant presents three issues for our review. In her first issue, appellant contends that the evidence is legally and factually insufficient to support the trial court’s finding that the second enhancement paragraph alleged in the indictment is “true.” In her second issue, appellant contends that the trial court erred in finding that the offense alleged in the first enhancement paragraph of the indictment is a final conviction. In her third issue, appellant contends that the trial court erred in denying her motion to suppress. We address appellant’s third issue first.

III.Motion to Suppress

In her third issue, appellant contends that the trial court erred in denying her motion to suppress the evidence seized during the search of her apartment because the officers searched the apartment before obtaining consent. However, appellant has failed to preserve this issue for our review.

When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). However, when a defendant affirmatively states during trial that she has “no objection” to the admission of evidence, she waives any error, despite the pretrial ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.1992); Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App.1988).

In this case, appellant initially preserved error through the trial court’s ruling on the pretrial motion to suppress. However, when the State offered into evidence Exhibit 17-the bottle of codeine which was the basis for appellant’s conviction-appellant’s counsel expressly stated, “No objection, Judge.” Because appellant’s counsel specifically stated that the defense had no objection to the admission of the bottle of codeine, we find that this issue was not preserved for review.

Accordingly, we overrule appellant’s third issue.

IY. Enhanoed Punishment

In her first issue, appellant contends there is insufficient evidence to support the finding that the allegations in the second enhancement paragraph were true. Appellant claims she was harmed because the second enhancement paragraph contained language enhancing her punishment range from a repeat offender under Texas Penal Code Section 12.42(c)(1) (punishment range of fifteen years to ninety-nine years) to an habitual felony offender under Texas Penal Code Section 12.42(d) (punishment range from twenty-five to ninety-nine years).

An habitual offender is a person shown to have “previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final.... ” Tex. Pen.Code ANN. § 12.42(d) (Vernon Supp.2004-05). In this case, the State sought to enhance appellant’s punishment to habitual status through the following enhancement paragraphs:

Before the commission of the offense alleged above (hereafter styled the primary offense) on May 23, 2002, in Cause No. 00199814, in the 16th District Court of St. Martin Parish, Louisiana, the Defendant was convicted of the felony of attempted possession with intent to distribute marihuana.
Before the commission of the primary offense and after the conviction in cause number 00199814 was final, the Defendant committed the felony offense of escape and was finally convicted of that offense on February 9, 2000 in Cause No. 835844, in the 182nd District Court of Harris County, Texas.

Although the second enhancement paragraph, if true, would establish that appellant is an habitual offender, it is clear from the face of the record that the second enhancement paragraph cannot be true. The second enhancement paragraph alleges that appellant committed the offense of escape (Cause No. 835844) after her conviction for attempted possession with intent to distribute marijuana (Cause No. 00199814) became final. However, the judgment supporting the escape offense shows that the offense was committed on February 7, 2000, and that the conviction became final on February 9, 2000. Thus, appellant did not commit the escape offense after she was finally convicted of the attempted possession offense on May 23, 2002. Accordingly, the second enhancement paragraph is not true and should not have been used to enhance appellant’s punishment range to that of an habitual offender.

Although the second enhancement paragraph cannot be true, the State argues that appellant is precluded from challenging the sufficiency of the evidence to support the enhancement paragraph because she pled “true” to the paragraph at the punishment hearing. As a general rule, when a defendant pleads true to an enhancement paragraph, the State is relieved of the burden of proving the enhancements, and the defendant cannot complain on appeal that the evidence is insufficient to support the enhancements. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981). However, there is a narrow exception to this rule. If the record “affirmatively reflects” that a prior conviction was not final, then the conviction cannot be used to enhance punishment, even though the defendant pled “true” to the enhancement paragraph. Harrison v. State, 950 S.W.2d 419, 422 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); Sanders v. State, 785 S.W.2d 445, 448 (Tex.App.-San Antonio 1990, no pet.). This narrow exception originated in Sanders. See 785 S.W.2d at 448.

In Sanders, the indictment contained an enhancement paragraph alleging that the defendant had a final conviction for the felony offense of delivery of marijuana before commission of the primary offense. Id. The defendant pled “true” to the enhancement allegations, and the trial court considered the previous conviction in assessing punishment for the primary offense. Id. On appeal, the court observed that the record affirmatively demonstrated the conviction for delivery of marijuana was not final before commission of the primary offense and, thus, could not be used to enhance punishment. Id. Under those circumstances, the court considered the error and reversed for a new punishment hearing, in the interest of justice. Id. Thus, under Sanders, when a defendant pleads true to an enhancement paragraph, but the record affirmatively reflects that the prior conviction was not final for enhancement purposes, the “interest of justice” requires the reviewing court to consider the error.

The First Court of Appeals has extended the Sanders exception, applying it not only to cases in which a non-final conviction was improperly used to enhance punishment, but to any case in which a “ ‘defendant pleads true to an enhancement paragraph allegation, [and] the record affirmatively reflect[s] that the prior conviction’ should not have been used for enhancement purposes.” Cruz v. State, No. 01-00-00463-CR, 2001 WL 1168273, at *1 (Tex.App.-Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for publication). The situation here falls within this category, as the record affirmatively reflects that the offense in the second enhancement paragraph should not have been used to enhance appellant’s punishment range to that of an habitual offender because the offense did not occur in the sequence alleged by the indictment. We agree with our sister court and apply the Sanders exception to the indictment in this case. Accordingly, we will consider appellant’s sufficiency challenge to the second enhancement paragraph despite her plea of true at the punishment hearing.

In reviewing legal sufficiency of the evidence in the punishment phase, we view the evidence in a light most favorable to the trial court’s ruling and determine whether any rational trier of fact could make the finding beyond a reasonable doubt. McFarland v. State, 928 S.W.2d 482, 496 (Tex.Crim.App.1996). As previously discussed, evidence introduced at the punishment phase of trial affirmatively shows that the second enhancement paragraph is not true. Therefore, no rational trier of fact could have found beyond a reasonable doubt that the allegations in the second enhancement paragraph were true. Thus, the evidence is legally insufficient to prove the allegations in the second enhancement paragraph.

While some courts of appeals have conducted a harm analysis after determining that insufficient evidence existed to prove that the defendant was an habitual offender, the Texas Court of Criminal Appeals has not. Compare Williams v. State, 837 S.W.2d 759, 764 (Tex.App.-El Paso 1992, no pet.) (determining harm existed when evidence failed to prove that second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final); Patterson v. State, 723 S.W.2d 308, 316 (Tex.App.-Austin 1987) (same), aff'd on other grounds, 769 S.W.2d 938 (Tex.Crim.App.1989), with McCrary v. State, 604 S.W.2d 113, 116 (Tex.Crim.App.1980) (reversing and remanding for new trial where no evidence proved that second previous felony conviction was for an offense that occurred subsequent to the first previous felony conviction having become final; no harm analysis conducted); Williams v. State, 596 S.W.2d 903, 904 (Tex.Crim.App.1980) (same). Following the precedent set by the Court of Criminal Appeals, we find that a harm analysis is inappropriate in this context. Accordingly, we sustain appellant’s first issue without conducting a harm analysis.

V. Conclusion

We affirm appellant’s conviction, but reverse that portion of the judgment assessing punishment and remand for a new punishment hearing. See Tex.Code Crim. PeoC. Ann. art. 44.29(b) (Vernon Supp. 2004-05).

      . Appellant was placed on probation in Louisiana on May 23, 2002 for the attempted possession offense (Cause No. 00199814). In her second issue, appellant contends that the Louisiana probation is not a "final conviction” for enhancement purposes.

      . It appears that even if the escape offense in 2000 is considered to be appellant’s "first felony conviction” for enhancement purposes, appellant would still not be an habitual offender under the statute because the attempted possession offense was not committed after the escape conviction became final. The information supporting the attempted possession offense alleges that appellant committed the offense "on or about” January 30, 2000. If, in fact, appellant committed the attempted possession offense on January 30, 2000, it would be impossible for the attempted possession offense to have been committed after the escape conviction became final on February 9, 2000.

      . Because of our disposition of appellant's first issue, we need not address her second issue. See TexR.App. P. 47.1.