author: JOHN HILL, Justice (Assigned). EARL B. STOVER, Justice,

text:
    James SMITH, Appellant, v. H.E. BUTT GROCERY COMPANY, Appellee.
    No. 09-98-291 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 18, 1999.
    Decided June 8, 2000.

      Mike Jacobellis, Tonahill, Hile, Jacobel-lis, Dutton & Bragg, Beaumont, for appellant.
    Elizabeth B. Pratt, Mehaffy & Weber, Beaumont, for appellee.
    Before BURGESS, STOVER and HILL, JJ.

      . The Honorable John Hill, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1998).

   OPINION

JOHN HILL, Justice (Assigned).

James Smith appeals from an order dismissing his personal injury suit against H.E. Butt Grocery (HEB), his former employer, after he failed to submit the case to arbitration as required by an agreement between him and HEB. In five issues on appeal he contends: (1) the Texas Workers’ Compensation Act prohibits agreements to waive rights under the Act, and this prohibition on waiver applies to non-subscribers and applies to agreements to arbitrate; (2) the trial court erred in finding that the Federal Arbitration Act provisions preempted the Texas Workers’ Compensation Act; (3) the trial court erred by ordering arbitration under the Federal Arbitration Act because the federal act does not apply to contracts, such as James Smith’s, that do not involve interstate commerce; (4) the contract requiring arbitration of claims for personal injury should not be enforced as it is unconscionable and against public policy; and (5) the trial court erred in dismissing the case after defendant refused to pay one half of the arbitration fees.

We affirm because the trial court did not abuse its discretion in ordering that Smith’s claim be submitted to arbitration and then dismissing his claim after he did not pursue arbitration by the date specified in the trial court’s order.

On September 15, 1994, HEB elected to be a nonsubscriber under the Texas Workers’ Compensation Act. On August 10, 1994, Smith, while working for HEB, signed a document submitted to him by HEB termed an “Election and Agreement Form.” In the agreement, Smith was given the option to receive what HEB termed comprehensive coverage. The agreement provided that if Smith chose comprehensive coverage any disputes, including occupational death, injury, or disease, were to be submitted to binding arbitration. Alternatively, Smith had the option to elect to receive basic coverage. Smith signed the agreement electing to receive comprehensive coverage, thereby agreeing to binding arbitration in the event of any dispute with HEB.

Smith alleges he injured his lower back in 1995 while moving defective carts. After Smith filed suit, HEB, relying on Smith’s agreement, filed a motion to stay-the litigation and to compel Smith to engage in arbitration under the Federal Arbitration Act. The trial court ordered the litigation stayed and that Smith was to commence arbitration on or before December 15, 1996, or have the case dismissed. The trial court dismissed Smith’s claim upon his failure to commence arbitration by the scheduled date. The basic issue in this ease is whether the trial court abused its discretion when it dismissed Smith’s personal injury cause against HEB after Smith failed to file his case with the arbitrator by the time designated by the trial court.

A party seeking to compel arbitration must establish the existence of an arbitration agreement and show the claims raised fall within the scope of that agreement; once the party establishes a claim within the arbitration agreement, the trial court must compel arbitration and stay its own proceedings. See In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 999). HEB presented evidence that Smith signed an arbitration agreement on August 10, 1994. That agreement includes an arbitration clause in which the parties agree that all disputes and claims relating, in any manner, “to the Agreement, the Plan, or the Trust or to the occupational injury, death or disease of Partner shall be submitted to final and binding arbitration under the Federal Arbitration Act....” The arbitration clause further provided that the agreement includes, but is not limited to, claims relating to the formation, application and interpretation of the Agreement and eligibility for benefits from the Trust, coverage under the Plan or claims for damages or monetary award. Once HEB established the existence of the arbitration agreement, Smith had the burden to show the agreement was procured in an unconscionable manner, induced or procured by fraud or duress, or that HEB waived arbitration under the agreement. See Oakwood Mobile Homes, 987 S.W.2d at 573. The unconscionability requirement relates to the actual making or inducement of the arbitration agreement, not the un-conscionability of the contract itself. See id. at 573, n. 3. Whether the terms and conditions of an arbitration agreement are themselves unconscionable is a matter that must be submitted to the designated arbitrator. Id.

Smith urges in issue four that the contract requiring arbitration of claims for personal injury should not be enforced as it is unconscionable and against public policy. He contends „the agreement is one-sided, the result of the agreement is unconscionable, the release of liability contained in the agreement is void as against public policy, there was no bargaining, and the parties had unequal bargaining power. Of these, only his contention that there was no bargaining and the parties had unequal bargaining power are matters involving judicial review; the other issues involve the unconscionability of the agreement itself and are therefore matters to be considered by the designated arbitrator. See id.

The unequal bargaining power of the employer-employee relationship does not establish' grounds for defeating an arbitration agreement under the Federal Arbitration Act. See EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90-91 (Tex.1996). We find Smith’s argument that there was no bargaining in reaching the agreement is related to that issue. To the extent it is a separate issue, Smith presents no authority that entering into an agreement is unconsciohable merely because the contract does not result in bargaining by the parties; and we are not aware of any. We overrule Smith’s contentions as presented in issue four.

Smith contends in issue one that the Texas Workers’ Compensation Act prohibits agreements to waive rights under the act, and this prohibition on waiver applies to nonsubscribers and applies to agreements to arbitrate. Most of Smith’s argument under this issue does not go to the validity of his agreement to arbitrate, but to the invalidity of the remainder of the agreement. As we have previously noted, once it is established that there is an arbitration agreement that has been properly obtained, the trial court must compel arbitration and stay its own proceedings. Consequently, the issues presented in issue one that go to the contract generally, as opposed to the arbitration provision, are to be determined by the designated arbitrator, not the trial court or this court.

Smith relies upon the cases of Texas Health Enterprises, Inc. v. Kirkgard, 882 S.W.2d 630, 634 (Tex.App.—Beaumont 1994, writ denied); Hazelwood v. Mandrell Indus. Co., Ltd., 596 S.W.2d 204 (Tex. Civ. App —Houston [1st Dist.] 1980, writ ref'd n.r.e.); and Broom v. Brookshire Bros., Inc., 923 S.W.2d 57 (Tex.App.—Tyler 1995, writ denied). We have examined all of these authorities. If anything, they go to the merits of his argument relating to the validity of the agreement in general, rather than to the validity of the agreement to arbitrate, or to the question of who is to determine such issues, the designated arbitrator or the trial court. We therefore find these authorities are not inconsistent with this opinion.

Smith contends the agreement to arbitrate itself is invalid, but presents no authority in support of his contention. We are unaware of any authority invalidating such an agreement that has not been shown to be unconscionable or improperly obtained. We overrule Smith’s contentions as presented in issue one.

Smith insists in issue two the trial court erred by determining that the Federal Arbitration Act, 9 U.S.C. §§ 1-16, preempts the Texas Workers’ Compensation Act. The trial court did not err to the extent that it held the Federal Arbitration Act required arbitration of Smith’s claim. See Miller v. Public Storage Management, Inc., 121 F.3d 215, 219 (5th Cir.1997); Cline v. H.E. Butt Grocery Co., 79 F.Supp.2d 730, 732 (S.D.Tex.1999); In Re Foster Mold, Inc., 979 S.W.2d 665, 667 (Tex.App.—El Paso 1998, orig. proceeding). Smith relies upon the cases of Texas Mfd. Hous. Ass’n. v. City of Nederland, 101 F.3d 1095 (5th Cir.1996); Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1280 (5th Cir.1994); Ruiz v. Miller Curtain Co., 702 S.W.2d 183 (Tex.1985); and Hook v. Morrison Milling Co., 38 F.3d 776 (5th Cir.1994). We have examined these authorities and find them distinguishable because, while they all deal with federal preemption issues, none relates to preemption in regard to the validity of an agreement to arbitrate in the workers’ compensation context. We overrule Smith’s contentions contained in issue two.

Smith insists in issue three the trial court erred in ordering the arbitration because the federal act does not apply to contracts, such as his, that do not involve interstate commerce. Even if Smith himself is not involved in interstate commerce, the Federal Arbitration Act applies where, as here, his employer’s business operations involve interstate commerce. See BWI Companies, Inc. v. Beck, 910 S.W.2d 620, 623 (Tex.App.—Austin 1995, orig. proceeding [leave denied]). We overrule Smith’s contentions as contained in issue three.

Smith argues in issue five that the trial court erred in dismissing his claim after HEB refused to pay its share of the arbitration agreement. The agreement between Smith and HEB calls for each to pay one half of the arbitrator’s fees. After the trial court issued its order requiring arbitration, Smith apparently sought to compel payment by HEB of all, not one half, of the filing fee required by the arbitrator. There is nothing in the record indicating his request was ever submitted to the trial court. His assertion that HEB refused to pay its share is unsupported by the record. There is no indication in the record that Smith sought to file a claim with the arbitrator accompanied by one-half of the fifing fee and was denied, and there is no indication in the record that Smith sought to file the claim accompanied by one-half of the fifing fee and that HEB refused to add its half to allow the fifing of the claiih. We therefore hold the trial court did not err by dismissing Smith’s claim due to his failure to proceed with arbitration ■ as ordered. We overrule Smith’s contentions contained in issue five.

The order dismissing Smith’s claim is affirmed.

AFFIRMED.

EARL B. STOVER, Justice,

concurring.

Currently before the Texas Supreme Court are a number of cases involving enforcement of arbitration agreements in the employer/employee non-subscriber context.

Although arbitration agreements are highly favored by the law and the courts, as exemplified by our recent opinion in In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867 (Tex.App.—Beaumont 2000) original proceeding [mand. denied], there is a danger in enforcing such agreements carte blanche in the employer/employee non-subscriber context. Under certain circumstances, public policy alone would preclude such enforcement. See Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex.App.-San Antonio 1999, pet. denied). However, in the instant case, the record does not support a public policy argument.

I have in a prior, albeit unpublished dissent in an opinion out of this court, voiced my concern regarding arbitration clauses contained in employee welfare benefit plans (which take the place of workers’ compensation) that contain a provision requiring the injured worker to pay a portion, of arbitration costs up front. Although I have not altered my opinion regarding such clauses, the Texas Supreme Court recently denied the petition for writ of. mandamus filed by the employee in that case. Here, appellant filed a motion to compel H.E.B. to pay the arbitration fee, but there is nothing to indicate the motion was ever ruled on. Therefore, with some reservation, I concur with the majority opinion.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    Robert CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-152 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 16, 2000.
    Decided June 21, 2000.

      Cynthia Viol, Texas Dept, of Crim. Justice-State Counsel for Offenders, Huntsville, for appellant.
    Mark Mullin, Special Prosecution Unit, Huntsville, for state.
    Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

WALKER, Chief Justice.

Robert Campbell was tried on an indictment that alleged Campbell and eight other individuals murdered another with the intent to establish, maintain, or participate in a combination or in the profits of a combination.. Tex. Pen.Code Ann. § 19.03(a)(5)(B) (Vernon 1994). The indictment against Campbell, Thomas Armstrong, and Stephen Brumfield was presented to a jury in a joint trial in which the three men were convicted of capital murder and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. The judgment reflects the life sentence shall be served consecutively to the forty year sentence Campbell was serving at the time of the offense. Campbell raises four issues on appeal.

In his first point of error, Campbell contends the evidence is legally insufficient to support the conviction because the State failed to prove that Campbell caused the death of Ryan Osgood with the intent to establish, maintain, or participate in a group of three or more persons who collaborate in carrying on criminal activities. Campbell relies upon a recent opinion of the Court of Criminal Appeals, which we find to be factually distinguishable because the prosecution in the case before us adduced evidence of a continuing course of criminal activity absent in that case. See Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App.1999).

Terrell Unit cellmates Ryan Osgood and Marc Ashbrook were members of the White Knights, a penitentiary gang. Campbell, Brumfield, Armstrong, Daniel Bean, Michael Bingham, Clyde Haynes, Bobby Stephens, Troy Smith, and Shane Jaggers were all members of the Aryan Circle who were housed in the same row as Osgood and Ashbrook. The Aryan Circle is a penitentiary gang engaged in activities involving “a little bit of everything, extortion, prostitution, drugs.”

On September 12,1997, Osgood attacked Terry Rayborn, the vice-president of the Aryan Circle and the highest ranking Aryan Circle member in the penitentiary at that time. Ashbrook testified he and Campbell had a conversation, and “they expressed concern about the incident and possible solutions, and Ashbrook “told them that it should be over with.” On October 6, 1997, after some twenty-one days of lockdown, during which the inmates were not permitted out of their cells, the doors to the entire row of cells opened and all the inmates were ordered to exit their cells for dinner. On cross-examination, Armstrong testified:

[T]he rumor was that Ryan Osgood had attempted to harm another inmate, an A.C. member, and then they retaliated. There were some retaliations on the other side of the unit, and they locked all of the close custody up. I guess they figured we was going to do something, too. Then they put Osgood over there and he was laughing about it and such and such and such and such; and I figured since Rayborn didn’t get got like they wanted him to, they were going to try to harm him again. And there was — it was just normal tension. If two groups get into a riot fight situation like that, there’s going to be tension.

Ashbrook walked out ahead of Osgood and was halfway down the stairs to the dayroom when he realized Osgood was not behind him. When Ashbrook reached the bottom, he turned around and saw Campbell and Brumfield run to Osgood and attack him. Brumfield grabbed Osgood’s arms while Campbell stabbed Osgood five times with a piece of sharpened plexiglass. While not fatal, the loss of blood associated with the stab wounds contributed to Osgood’s death. Then Campbell, Armstrong, and Bean stomped on Osgood. Meanwhile, in an attempt to support Osgood, Ashbrook fought Stephens, then Smith, Jaggers, and Haynes as well. Brumfield and Armstrong left Osgood and pursued Ashbrook, who dropped from the second floor to the ground floor. Brumfield, Armstrong, Jaggars and Haynes fought Ash-brook in the day room until prison personnel shot chemical agents into the area. Campbell went into his cell, then returned to Osgood and kicked and stomped on Osgood’s head. The pathologist attributed cause of death to the cerebral contusion with subgluteal and subdural hemorrhage due to blunt trauma of the head.

According to Ashbrook, Osgood’s “disrespectful” attack on Rayborn was the motive for the attack on Osgood. According to Armstrong, Osgood’s “people ... were supposed to take care of it” but did not because of the lockdown. According to Stephens, Osgood “tried to take our vice-president” .... [s]o, we had to get back— we had to get back at him for doing that.” Stephens testified a message, or “kite,” had passed among the inmates, and that as a result he expected either Campbell and Brumfield or Smith and Richard Shosa would have “problems” with Ashbrook and Osgood when they walked by,”[b]ecause they were White Knights.” According to Jaggers, in the organizations in prison, it is “pretty much” literally “an eye' for an eye.” Asked, “so if somebody attacks one of your guys, you respond in kind?”, Jag-gars replied, “Most of the time.”

Campbell argues the State failed to prove the Aryan Circle was a “combination” “of three or more persons who collaborate in carrying on criminal activities.” See Tex. Pen.Code. Ann. § 71.01 (Vernon Supp.2000). The testimony just described established three or more people associated as the “Aryan Circle” and those people collaborated in the homicidal assault on Ryan Osgood. The gang-related motive established for the attack was directly related to the cultivation of deference for Aryan Circle members among the prison population. Although the inmates depicted their respective gangs as helpfuT’broth-erhoods” or “tribes” organized for “mutual protection,” that the members of the Aryan Circle collaborated in a continuing course of criminal conduct is supported by testimony that the Aryan Circle was involved in extortion, prostitution, and drugs. Regarding other criminal offenses, one indicted Aryan Circle member testified, “the Aryan Circle used him [another inmate not involved in the attack] as far as extortion. We extorted money from him. He paid us for protection .... [from] any problems that he might have as far as somebody trying to fight him.” Armstrong admitted that to “blood in” to the Aryan Circle, a man could “take a case for an A.C. member.” Stephens testified, “The Aryan Circle had put a hit on me” and that his and his wife’s lives were in danger from the Aryan Circle because he testified. Campbell’s agreement to work with the other members of the Aryan Circle in the gang’s continuing course of criminal activity is proven by Campbell’s conduct in the commission of the murder of Ryan Osgood.

Considering all of the evidence adduced at trial in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that the State proved beyond a reasonable doubt that Campbell possessed the specific intent to establish, maintain, or participate in a group of three or more persons who collaborate in carrying on criminal activities. Point of error one is overruled.

Point of error two urges the trial court erred in denying Campbell’s motion for new trial based upon jury misconduct. The motion for new trial alleged “misconduct of the jury, to wit: The jurors reached their verdict improperly prior to the receipt of all of the evidence in the case.... One juror improperly placed the burden on the Defendant to prove his innocence .... ” The motion for new trial does not allege the jury considered Campbell’s failure to testify as a circumstance against the accused.

In the motion for new trial hearing, defense counsel asked juror F.B. if there was any discussion of the defendants’ failure to testify. F.B. replied, “No. We might have said something that they didn’t—they didn’t testify, but that was the extent of it.” Juror A.E. agreed the subject probably came up in conversation during deliberations, but that he took into account the judge’s instructions “not to hold that against the defendant.” Juror B.H. did not recall if the subject arose, but recalled and stated he followed the judge’s instruction to not consider the defendants’ failure to testify. A mere reference by jurors to the fact that a defendant did not testify does not amount to reversible error. Powell v. State, 502 S.W.2d 705, 711 (Tex.Crim.App.1974). To constitute reversible error, the reference must amount to a discussion by the jurors or have been used as a circumstance against the accused. Id. Such is not the case here.

Far more disturbing is the testimony of F.B. regarding her personal opinions. Defense counsel asked, “You believe that we should have proved our client, Mr. Robert Campbell, innocent?” F.B. replied, “I believe that was your intention.” F.B. agreed with the prosecutor’s statement that the State’s evidence was “pretty compelling.” The prosecutor asked, “Once you heard all of that, if the defense had put on something that showed there was another side and that they weren’t guilty, would you have found the defendants not guilty?” F.B. replied, “That’s right. I would have.” F.B. agreed the State’s evidence was sufficient to prove the defendants guilty, and that if it had not been, she would have said not guilty, but she never heard any evidence to sway her that way. On redirect, defense counsel asked, “You believe that the defendants should have testified?” F.B. replied, “I do.” Defense counsel asked, “And the fact that he didn’t, that Mr. Brumfield and Mr. Campbell didn’t testify, that affected your verdict, didn’t it?” F.B. replied, “Yes.”

F.B.’s testimony in the motion for new trial hearing is quite similar to that found to be reversible jury misconduct in Reyna v. State, 846 S.W.2d 498, 502-03 (Tex.App.—Corpus Christi 1993, no pet.)(“In deliberating on the verdict, we took into consideration that the defendant did not testify on his own behalf. I think he should have testified. I feel he should have spoken up and defended himself.”) Placed in context, however, it is not clear whether F.B. was considering the effect of the defendant’s failure to testify in retrospect rather than admitting that she considered Campbell’s failure to testify as a circumstance against him in deciding whether he was guilty. F.B. testified she voted in favor of guilt because the State’s evidence, which included a videotape recording of Campbell stomping on Osgood, was sufficient to prove the defendant’s guilt. She also testified that she considered all of the evidence that came in, and decided after all of the evidence was presented, thus refuting Campbell’s alleged basis for jury misconduct.

The trial court determined, on conflicting evidence, that the alleged misconduct did not in fact occur. Accordingly, the denial of the motion for new trial was within the trial court’s discretion. Point of error two is overruled.

Point of error three contends the trial court erred in instructing the jury on the law of parties over defense objection. Campbell relies upon a recent Court of Appeals opinion that held that for the evidence in a prosecution for engaging in organized criminal activity to be legally sufficient, the State must prove the appellant himself performed an overt act in furtherance of a criminal act. McLaren v. State, 2 S.W.3d 595 (Tex.App.—El Paso 1999, pet. granted). In McLaren there was no evidence that the appellant was a direct participant in the underlying abduction. Id. at 598. The Court of Appeals reasoned that the State could not rely upon the overt acts of the other members of the combination to prove the appellant’s guilt under the law of parties. Id. at 599. Campbell contends the law of parties is not applicable to a prosecution for capital murder under Section 19.03(a)(5)(B) because the offense contains a “combination” element identical to that of engaging in organized criminal activity.

The application paragraph authorized the jury to convict if it found Campbell “acting alone or as a party, as defined herein, did, while incarcerated in a penal institution, namely, the Terrell Unit, and with intent to establish, maintain, or participate in a combination consisting of, but not limited to [the indicted persons], intentionally or knowingly cause the death of Ryan Osgood ....“ [emphasis, added] The trial court also instructed the jury separately on the requirements of a combination and on the law of parties.

Contrary to the State’s position in McLaren, in this case the State is not relying on the acts of co-defendants to supply the proof that the appellant conspired to commit the underlying offense. The gerund phrase in the application paragraph “acting alone or as a party” modified “Robert Campbell”; the affected verb phrase is “did ... cause the death.” The parties charge in this case applied to the defendant’s acts causing the death of Ryan Osgood by stomping, kicking, hitting, and stabbing, not to the fact of incarceration or to the intent to participate in a combination. “While incarcerated in a penal institution ... “and with the intent to establish, maintain, or participate in a combination” are parenthetical phrases that are not modified by the phrase referring to criminal responsibility as a party to the offense. The jury was authorized to convict Campbell only if it found that he murdered Osgood while either acting alone or as a party, and that Campbell was then incarcerated in the Terrell Unit and intended to participate in a combination.

We hold the trial court did not err in submitting to the jury an instruction on the law of parties. See Tex. Pen.Code Ann. § 7.02(a) (Vernon 1994). Point of error three is overruled.

Point of error four urges Texas Penal Code Section 19.03(a)(5)(B) is unconstitutionally vague under the Fifth and Fourteenth Amendments to the United States Constitution. The test to determine if a statute is so vague as to violate due process is whether it (1) gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and (2) provides explicit standards for those who apply it. Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222, 227-28 (1972).

Campbell argues that in Nguyen the Court of Criminal Appeals defined the “combination” element of engaging in organized criminal activity as a continuing course of conduct; therefore, Section 19.03(a)(5)(B) prohibits the commission of murder with the intent to commit undefined, contingent, criminal activities in the future. We disagree with the appellant’s construction of the statute. As the Court of Criminal Appeals made perfectly clear in the context of prosecutions for engaging in organized criminal activity in Nguyen, it is the present intent to commit a continuing series of criminal acts, not the actual commission of a series of criminal offenses, that the State must prove in order to secure a conviction. See Nguyen, 1 S.W.3d at 697. Likewise, to secure a conviction for capital murder under Section 19.03(a)(5)(B), the State must prove that the accused committed the murder with the present intent to commit a continuing series of criminal acts. Being a matter of specific intent, the capital element of the offense cannot be supplied through inadvertent conduct.

We also reject Campbell’s argument that Section 19.03(a)(5)(B) encourages arbitrary prosecution. The appropriateness of the aggravating circumstance is evident in this case: Campbell is a tattooed member of a race-based penitentiary gang that employs physical violence, in this case murder, to protect its members. Confined where they do not have access to weapons, Campbell and eight other gang members used their hands and feet and sharpened plexiglass to kill a rival gang member in retaliation for his attack on one of their own. The State, having incarcerated serious offenders, has a compelling interest in preventing further criminal conduct on their part, especially where a threat to the safety of those confined is involved and where the impetus for the crime is control over other inmates. Since the State must prove the accused committed the murder with the intent to participate in a combination, the State cannot apply the statute arbitrarily to offending inmates coincidentally affiliated with an organized gang.

Section 19.03(a)(5)(B) both reasonably informs citizens of the proscribed conduct and provides adequate guidelines for enforcement. We hold Penal Code Section 19.03(a)(5)(B) is not unconstitutionally vague. Point of error four is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

      . Armstrong’s and Brumfield’s convictions were affirmed in appeals decided today. See Armstrong v. State, 18 S.W.2d 928 (Tex.App.—Beaumont 2000, no pet. h.); Brumfield v. State, 18 S.W.3d 921, (Tex.App.—Beaumont 2000, no pet. h.).

      . These individuals were charged with capital murder in the same indictment as Campbell, Armstrong, and Brumfield, but were not tried in the same proceeding.


author: RONALD L. WALKER, Chief Justice.

text:
    Stephen BRUMFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-094CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 16, 2000.
    Decided June 21, 2000.

      Stephen Christopher Taylor, Galveston, for appellant.
    Mark Mullin, Special Prosecution Unit, Huntsville, for state.

      Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

RONALD L. WALKER, Chief Justice.

Stephen Brumfield was tried on an indictment that alleged Brumfield and eight other individuals murdered another with the intent to establish, maintain, or participate in a combination or in the profits of a combination. Tex. Pen.Code Ann. § 19.03(a)(5)(B) (Vernon 1994). The indictment against Brumfield, Robert Campbell and Thomas Armstrong was presented to a jury in a joint trial in which the three men were convicted of capital murder and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. The judgment reflects the life sentence shall be served consecutively to the fifteen year sentence Brumfield was serving at the time of the offense. Brumfield raises nine issues on appeal.

Brumfield presents his first three issues in a single argument challenging the admission of testimony regarding Brum-field’s membership in the Aryan Circle, without proof of any violent and illegal activities of the Aryan Circle, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, the First Amendment to the United States Constitution, and Article I, Section 8, of the Texas Constitution.

Brumfield relies upon counsel’s motion in limine argument that information about gangs would be prejudicial to the defense. A ruling on a motion in limine is not sufficient to preserve error for review. McDuff v. State, 939 S.W.2d 607, 618 (Tex.Crim.App.1997). By not presenting either a state or federal associational objection when the evidence of gang membership was offered at trial, Brufield failed to preserve error. Tex.R.Evid. 103(a)(1); Tex.R.App. P. 33.1. Brumfield contends that his rights to due process were violated because the State failed to demonstrate a substantial relation between Brumfield’s membership in the Aryan Circle and a subject of overriding and compelling State interest. See Dawson v. Delaware, 503 U.S. 159, 165, 112 S.Ct. 1093, 1097-98, 117 L.Ed.2d 309, 317 (1992) (holding there is no per se barrier to the admission of one’s beliefs and associations at sentencing, but the evidence must be relevant). Although challenged as a violation of due process, the admission of evidence of Brumfield’s membership in a penitentiary gang does not concern a non-waivable systemic requirement. See Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993), overruled in part on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). Issues one through three are overruled.

Issues four through seven challenge the sufficiency of the evidence. In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). In reviewing the factual sufficiency of the evidence, we review all the evidence impartially, comparing the evidence which tends to prove the existence of an elemental fact in dispute to the evidence which tends to disprove that fact, and determine whether the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). A sufficiency of the evidence challenge is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

Issues four and five contend the evidence is legally and factually insufficient to support a conviction for capital murder, in that the evidence failed to prove, beyond a reasonable doubt, that the Aryan Circle was a combination. A “combination” is three or more persons who collaborate in carrying on criminal activities, although the participants may not know each other’s identity and membership in the combination may change from time to time. See Tex. Pen.Code Ann. § 71.01 (Vernon Supp.2000). The State must prove the appellant and two or more people collaborated in carrying on criminal activities, that is, agreed to work together in a continuing course of criminal activities. Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App.1999).

The victim and a person assaulted in the same incident, Terrell Unit cellmates Ryan Osgood and Marc Ashbrook, were members of the White Knights, a penitentiary gang. Brumfield and his indicted co-defendants (Campbell, Armstrong, Daniel Bean, Michael Bingham, Clyde Haynes, Bobby Stephens, Troy Smith, and Shane Jaggers) were all members of the Aryan Circle housed in the same prison row as Osgood and Ashbrook. On September 12, 1997, Osgood attacked Terry Rayborn, the vice-president of the Aryan Circle and the highest ranking Aryan Circle member in the penitentiary at that time. The unit was placed on lockdown as a result of that incident. On October 6, 1997, within moments of being let out of their cells together for the first time, Brumfield and the others, all Aryan Circle members, attacked Osgood. First, Brumfield held Osgood while Campbell stabbed him five times with a piece of sharpened plexiglass. The inmates kicked and stomped on Osgood, who ultimately perished from blunt trauma head injury. When Ashbrook tried to come to Osgood’s aid, Brumfield and several other inmates attacked him, too. Several inmates testified they attacked Osgood in retaliation for Osgood’s attack on Rayborn. This testimony established three or more people associated as the “Aryan Circle” and those people collaborated in the homicidal assault on Ryan Osgood. Brumfield argues the evidence indicated the murder was committed with intent to retaliate through the commission of a single offense and that there was no evidence indicating an intent to work together in a continuing course of criminal activity.

The State proved Brumfield is a member of the Aryan Circle. Collaboration in a continuing course of criminal conduct by the members of the Aryan Circle is supported by Jaggers’s testimony that the Aryan Circle was involved in extortion, prostitution, and drugs. Regarding continuity of criminal offending, Stephens testified, “the Aryan Circle used him [another inmate not involved in the attack] as far as extortion. We extorted money from him. He paid us for protection .... [from] any problems that he might have as far as somebody trying to fight him.” Stephens also testified, “The Aryan Circle had put a hit on me” and that his and his wife’s lives were in danger from the Aryan Circle because he testified. Armstrong admitted that white inmates who were “riding” with the Aryan Circle were “paying protection” “like a bodyguard.” Armstrong also admitted that to “blood in” to the Aryan Circle, a man could “take a case for an A.C. member.” Brumfield’s agreement to work with the other members of the Aryan Circle in the gang's continuing course of criminal activity is proven by Brumfield’s conduct.in the commission of the murder of Ryan Osgood.

Considering all of the evidence adduced at trial in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that the State proved beyond a reasonable doubt that Brumfield acted together with at least two of the other indicted co-defendants, with the specific intent to establish, maintain, or participate in a group of three or more persons who collaborate in carrying on criminal activities. As the evidence submitted to the jury on the issue raised is both legally and factually sufficient to support the jury’s verdict, we overrule issues four and five.

In his sixth and seventh issues, Brumfield contends the evidence is legally and factually insufficient to support the conviction because the State failed to prove beyond a reasonable doubt that Brumfield, acting with the intent to establish, maintain, or participate in a combination, intentionally or knowingly caused the death of Ryan Osgood. Brumfield argues that the evidence is insufficient to prove he entered into an agreement with anyone to cause the death of Osgood because his involvement was only in the beginning of the assault.

Stephens testified a message, or “kite,” had passed among the inmates, and that as a result he expected either Campbell and Brumfield or Smith and Richard Shosa would have “problems” with Ashbrook and Osgood when they walked by, “[bjecause they were White Knights.” Stephens testified he saw Brumfield hit Osgood more than once, and guessed that Brumfield knocked Osgood out because Osgood fell. Brumfield grabbed Osgood’s arms and held them behind his back while Campbell stabbed Osgood. Jaggers testified that Brumfield, Campbell, Armstrong, and Bean were all “scuffling” with Osgood. When Ashbrook tried to support Osgood, Brumfield left Osgood and, along with Armstrong, attacked Ashbrook while the attack on Osgood continued. Brumfield fought Ashbrook until chemical agents were introduced into the area.

Brumfield initiated the assault on Osgood, held Osgood while another inmate stabbed him, then attacked the one person who was trying to stop the assault. His participation ceased only upon intervention by the authorities. The charge authorized the jury to convict Brumfield if it found he acted as a party. Considering all of the evidence adduced at trial in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that the State proved beyond a reasonable doubt that Brumfield, acting with the intent to establish, maintain, or participate in a combination, intentionally or knowingly caused the death of Ryan Osgood. As the evidence submitted to the jury on the issue raised is both legally and factually sufficient to support the jury’s verdict; we overrule issues six and seven.

Issue eight challenges the constitutionality of Penal Code Section 19.03(a)(5)(B). Brumfield argues the statute violates the Eighth Amendment to the United States Constitution by imposing a higher degree of criminal liability on him solely because of his status as an inmate. To pass muster under the Eighth Amendment, an aggravating circumstance contained in an element of a capital offense must meet two requirements: (1) the circumstance must apply only to a subclass of defendants convicted of murder and may not apply to every defendant convicted of a murder; and (2) the aggravating circumstance must not be unconstitutionally vague. Henderson v. State, 962 S.W.2d 544, 563 (Tex.Crim.App.l997)(citing Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S.Ct. 2630, 2634-35, 129 L.Ed.2d 750, 759 (1994)). The test to determine if a statute is so vague as to violate due process is whether it (1) gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and (2) provides explicit standards for those who apply it. Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972). If an act implicates First Amendment guarantees, the doctrine of vagueness demands a greater degree of specificity than in other contexts. Id.

The Supreme Court held the Texas capital punishment scheme to be constitutionally sound. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Since Jurek, the Court of Criminal Appeals upheld various additions to the statute. Johnson v. State, 853 S.W.2d 527 (Tex.Crim.App.1992) (multiple victims); Henderson v. State, 962 S.W.2d at 562-63 (victim under six). Most recently, the Court of Criminal Appeals upheld the constitutionality of Penal Code Section 19.03(a)(6), reasoning that inmates who murder another in prison while serving a sentence of life imprisonment or a term of 99 years for the commission of an offense listed in Article 42.12 § 3g(a)(l) make up a subclass of murderers in general; and persons serving a sentence of life imprisonment or a term of 99 years for the commission of any offense listed in Section 3g(a)(l), Article 42.12 make up a clear and definite category. Cannady v. State, 2000 WL 4181, *8 (Tex.Crim.App.2000).

Brumfield argues Section 19.03(a)(5)(B) arbitrarily broadens the aggravating circumstance to every individual incarcerated in a penal institution. First, inmates incarcerated in a penal institution make up a subclass of murderers in general. Incarcerated individuals who commit murder with the intent to participate in a combination make up a clear and definite category. The inclusion of this category of offense in Section 19.03 is not arbitrary, as the State’s interest in preventing prison gang violence provides a reasoned, principled basis for distinguishing offenders eligible for capital punishment. We hold Section 19.03(a)(5)(B) does not violate the Eighth Amendment. Issue eight is overruled.

The final issue contends the trial court erred in charging the jury on the law of parties. Brumfield concedes that under Texas law a person is criminally responsible for an offense if the offense is committed by the conduct of another for which the person is criminally responsible. Tex. Pen.Code Ann. § 7.01(a) (Vernon 1994). He also concedes a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen.Code Ann. § 7.02(a)(2) (Vernon 1994). Brumfield argues Penal Code Section 7.02(a)(2) does not apply to a prosecution under Penal Code Section 19.03(a)(5)(B) because the proof required to make a finding that an individual is a party to an offense falls short of the proof required to make a finding that an individual is a member of a combination under Penal Code Section 71.01. Brumfield fails to distinguish between the proof necessary to establish the commission of the murder and the proof necessary to establish the aggravating circumstance.

The application paragraph authorized the jury to convict if it found Brumfield “acting alone or as a party, as defined herein, did, while incarcerated in a penal institution, namely, the Terrell Unit, and with intent to establish, maintain, or participate in a combination consisting of, but not limited to [the indicted persons], intentionally or knowingly cause the death of Ryan Osgood .... ’’[emphasis added] The trial court also instructed the jury separately on the requirements of a combination and on the law of parties. The gerund phrase in the application ■ paragraph “acting alone or as a party” modified “Stephen Brumfield”; the affected verb phrase is “did ... cause the death.” The parties charge in this case applied to the defendant’s acts causing the death of Ryan Osgood by stomping, kicking, hitting, and stabbing, not to the fact of incarceration or to the intent to participate in a combination. “While incarcerated in a penal institution ... “and with the intent to establish, maintain, or participate in a combination” are parenthetical phrases that are not modified by the phrase referring to criminal responsibility as a party to the offense. The jury was authorized to convict Brumfield only if it found that he murdered Osgood while either acting alone or as a party, and that Brumfield was then incarcerated in the Terrell Unit and intended to participate in a combination.

We hold the trial court did not err in submitting to the jury an instruction on the law of parties. See Tex. Pen.Code Ann. § 7.02(a) (Vernon 1994). Issue nine is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

      . Campbell’s and Armstrong’s convictions were affirmed in appeals decided today. See Campbell v. State, 18 S.W.2d 914 (Tex.App.—Beaumont 2000, no pet. h.); Armstrong v. State, 18 S.W.2d 928 (Tex.App.—Beaumont 2000, no pet. h.).

      . These individuals were charged with capital murder in the same indictment as Brumfield, Campbell, and Armstrong, but were not tried in the same proceeding.


text:
    Thomas ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-153 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 16, 2000.
    Decided June 21, 2000.

      Cynthia Viol, Texas Dept, of Criminal Justice, State Counsel for Offenders, Huntsville, for appellant.

      Mark Mullm, Special Prosecution Unit, Huntsville, for State.
    Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

RONALD L. WALKER, Chief Justice.

Thomas Armstrong was brought to trial on an indictment that alleged Armstrong and eight other individuals murdered another with the intent to establish, maintain, or participate in a combination or in the profits of a combination. Tex. Pen.Code Ann. § 19.03(a)(5)(B). The indictment against Armstrong, Robert Campbell, and Stephen Brumfield was presented to a jury in a joint trial in which the three men were convicted of capital murder and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. The judgment reflects the life sentence shall be served consecutively to the ten year sentence Armstrong was serving at the time of the offense. Armstrong raises three issues on appeal.

In his first point of error, Armstrong contends the evidence is legally insufficient to support the conviction because the State failed to prove that Armstrong caused the death of Ryan Osgood with the intent to establish, maintain, or participate in a group of three or more persons who collaborate in carrying on criminal activities. Armstrong relies upon a recent opinion of the Court of Criminal Appeals, which we find to be factually distinguishable because the prosecution in the case before us adduced evidence of a continuing course of criminal activity absent in that ease. See Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App.1999).

Terrell Unit cellmates Ryan Osgood and Marc Ashbrook were members of the White Knights, a penitentiary gang. Armstrong, Campbell, Brumfield, Daniel Bean, Michael Bingham, Clyde Haynes, Bobby Stephens, Troy Smith, and Shane Jaggers were all members of the Aryan Circle who were housed in the same row as Osgood and Ashbrook. The Aryan Circle is a penitentiary gang engaged in activities involving “a little bit of everything, extortion, prostitution, drugs.”

At trial, Armstrong admitted there had been what he called “hostilities” between the White Knights and the Aryan Circle. On September 12, 1997, Osgood attacked Terry Rayborn, the vice-president of the Aryan Circle and the highest ranking Aryan Circle member in the penitentiary at that time. On October 6, 1997, after some twenty-one days of lockdown, during which the inmates were not permitted out of their cells, the doors to the entire row of cells opened and all the inmates were ordered to exit their cells for dinner. On cross-examination, Armstrong testified:

[T]he rumor was that Ryan Osgood had attempted to harm another inmate, an A.C. member, and .then they retaliated. There were some retaliations on the other side of the unit, and they locked all of the close custody up. I guess they figured we was going to do something, too. Then they put Osgood over there and he was laughing about it and such and such and such and such; and I figured since Rayborn didn’t get got like they wanted him to, they were going to try to harm him again. And there was — it was just normal tension. If two groups get into a riot fight situation like that, there’s going to be tension.

Ashbrook testified he and Campbell had previously had a conversation, and “they expressed concern about the incident and possible solutions,” and Ashbrook “told them that it should be over with.” According to Ashbrook, Osgood’s “disrespectful” attack on Rayborn was the motive for the attack on Osgood. Ashbrook walked out ahead of Osgood and was halfway down the stairs to the dayroom when he realized Osgood was not behind him. When Ashbrook reached the bottom, he turned around and saw Campbell and Brumfield run to Osgood and attack him. Brumfield grabbed Osgood’s arms and Campbell stabbed Osgood. Then Bean and Armstrong ran up behind Osgood and joined in the attack, hitting Osgood, who was already on the ground. Ashbrook ran back up the stairs, and ran into Stephens, who tried to grab Ashbrook to keep him from reaching Osgood. Ashbrook and Stephens started fighting, then Smith, Jag-gers, and Haynes joined in the attack on Ashbrook. Brumfield and Armstrong left Osgood and pursued Ashbrook, who dropped from the second floor to the ground floor. Brumfield, Armstrong, Jag-gars and Haynes fought Ashbrook in the day room until prison personnel shot chemical agents into the area. Armstrong ran up to the third level to Campbell and Osgood. Several witnesses testified they saw Armstrong stomping on Osgood, and Armstrong admitted to stomping on Osgood once. Armstrong also admitted to attacking Ashbrook, in Armstrong’s words “immobilized” him; Armstrong claimed he did so in order to help Stephens beat up Ashbrook because, “it’s just your instinct to jump in, help one of your own.” Armstrong admitted he walked up to “the body,” and claimed “I was mad and I got my one lick.” Asked if it was disrespectful for Osgood to jump on his vice president, Armstrong replied it was disrespectful for Osgood to jump on “anybody.” The following was elicited on cross-examination:

Q. [By prosecutor] And what is supposed to happen? How does it normally work when someone disrespects an Aryan Circle member?
A. [By Armstrong] At first we take — his people, his friends, as he called them, as Ashbrook called them, were supposed to take care of it. They didn’t have a chance to do it. So, therefore, there was no definite conclusion what was going to happen.
Q. How come they didn’t have a chance?
A. Because he was put in solitary after the incident and then put on lock-down.

According to Stephens, Osgood “tried to take our vice-president” .... [s]o, we had to get back — we had to get back at him for doing that.” Stephens testified a message, or “kite,” had passed among the inmates, and that as a result he expected either Campbell and Brumfield or Smith and Richard Shosa would have “problems” with Ashbrook and Osgood when they walked by, “[b]ecause they were White Knights.” According to Jaggers, in the organizations in prison, it is “pretty much” literally “an eye for an eye.” Asked, “so if somebody attacks one of your guys, you respond in kind?”, Jaggars replied, “Most of the time.”

Armstrong argues the State failed to prove the Aryan Circle was a “combination” “of three or more persons who collaborate in carrying on criminal activities.” Tex Pen.Code. Ann. § 71.01 (Vernon Supp. 2000). The testimony just described established three or more people associated as the “Aryan Circle” and those people collaborated in the homicidal' assault on Ryan Osgood. The gang-related motive established for the attack was directly related to the cultivation of deference for Aryan Circle members among the prison population. Although the inmates depicted their respective gangs as helpful “brotherhoods” or “tribes” organized for “mutual protection,” that the members of the Aryan Circle collaborated in a continuing course of criminal conduct is supported by testimony that the Aryan Circle was involved in extortion, prostitution, and drugs. Regarding other criminal offenses, one indicted Aryan Circle member testified, “the Aryan Circle used him [another inmate not involved in the attack] as far as extortion. We extorted money from him. He paid us for protection .... [from] any problems that he might have as far as somebody trying to fight him.” Armstrong admitted that to “blood in” to the Aryan Circle, a man could “take a case for an A.C. member.” Stephens testified, “The Aryan Circle had put a hit on me” and that his and his wife’s lives were in danger from the Aryan Circle because he testified. Although Armstrong depicted the Aryan Circle as an altruistic association devoted “for white instead of destroying them,” that Armstrong agreed to work with the other members of the Aryan Circle in the gang’s continuing course of criminal activity is proven by Armstrong’s conduct in the commission of the murder of Ryan Osgood.

Considering all of the evidence adduced at trial in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that the State proved beyond a reasonable doubt that Armstrong possessed the specific intent to establish, maintain, or participate in a group of three or more persons who collaborate in carrying on criminal activities. Point of error one is overruled.

Point of error two contends the trial court erred in instructing the jury on the law of parties over defense objection. Armstrong relies upon a recent Court of Appeals opinion that held that for the evidence in a prosecution for engaging in organized criminal activity to be legally sufficient, the State must prove the appellant himself performed an overt act .in furtherance of a criminal act. McLaren v. State, 2 S.W.3d 595 (Tex.App.—El Paso 1999, pet. granted). In McLaren there was no evidence that the appellant was a direct participant in the underlying abduction. Id. at 598. The Court of Appeals reasoned that the State could not rely upon the overt acts of the other members of the combination to prove the appellant’s guilt under the law of parties. Id. at 599. Armstrong contends the law of parties is not applicable to a prosecution for capital murder under Section 19.03(a)(5)(B) because the offense contains a “combination” element identical to that of engaging in organized criminal activity.

The application paragraph authorized the jury to convict if it found Armstrong “acting alone or as a party, as defined herein, did, while incarcerated in a penal institution, namely, the Terrell Unit, and with intent to establish, maintain, or participate in a combination consisting of, but not limited to [the indicted persons], intentionally or knowingly cause the death of Ryan Osgood .... ” [emphasis added] The trial court also instructed the jury separately on the requirements of a combination and on the law of parties.

Contrary to the State’s position in McLaren, in this case the State is not relying on the acts of co-defendants to supply the proof that the appellant conspired to commit the underlying offense. The gerund phrase in the application paragraph “acting alone or as a party” modified “Thomas Armstrong”; the affected verb phrase is “did ... cause the death.” The parties charge in this case applied to the defendant’s acts causing the death of Ryan Osgood by stomping, kicking, hitting, and stabbing, not to the fact of incarceration or to the intent to participate in a combination. “While incarcerated in a penal institution ... and with the intent to establish, maintain, or participate in a combination” are parenthetical phrases that are not modified by the phrase referring to criminal responsibility as a party to the offense. The jury was authorized to convict Armstrong only if it found that he murdered Osgood while either acting alone or as a party, and that Armstrong was then incarcerated in the Terrell Unit and intended to participate in a combination.

We hold the trial court did not err in submitting to the jury an instruction on the law of parties. See Tex. Pen.Code Ann. § 7.02(a) (Vernon 1994). Point of error two is overruled.

Point of error three urges Texas Penal Code Section 19.03(a)(5)(B) is unconstitutionally vague under the Fifth and Fourteenth Amendments to the United States Constitution. The test to determine if a statute is so vague as to violate due process is whether it (1) gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and (2) provides explicit standards for those who apply it. Grayned v. Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222, 227-28 (1972).

Armstrong argues that in Nguyen the Court of Criminal Appeals defined the “combination” element of engaging in organized criminal activity as a continuing course of conduct; therefore, Section 19.03(a)(5)(B) prohibits the commission of murder with the intent to commit undefined, contingent, criminal activities in the future. We disagree with the appellant’s construction of the statute. As the Court of Criminal Appeals made perfectly clear in the context of prosecutions for engaging in organized criminal activity in Nguyen, it is the present intent to commit a continuing series of criminal acts, not the actual commission of a series of criminal offenses, that the State must prove in order to secure a conviction. See Nguyen, 1 S.W.3d at 697. Likewise, to secure a conviction for capital murder under Section 19.03(a)(5)(B), the State must prove that the accused committed the murder with the present intent to commit a continuing series of criminal acts. Being a matter of specific intent, the capital element of the offense cannot be supplied through inadvertent conduct.

We also reject Armstrong’s argument that Section 19.03(a)(5)(B) encourages arbitrary prosecution. The appropriateness of the aggravating circumstance is evident in this case: Armstrong is a tattooed member of a race-based penitentiary gang that employs physical violence, in this case murder, to protect its members. Confined where they do not have access to weapons, Armstrong and eight other gang members used their hands and feet and sharpened plexiglass to kill a rival gang member in retaliation for his attack on one of their own. The State, having incarcerated serious offenders, has a compelling interest in preventing further criminal conduct on their part, especially where a threat to the safety of those confined is involved and where the impetus for the crime is control over other inmates. Since the State must prove the accused committed the murder with the intent to participate in a combination, the State cannot apply the statute arbitrarily to offending inmates who coincidentally belong to an organized gang.

Section 19.03(a)(5)(B) both reasonably informs citizens of the proscribed conduct and provides adequate guidelines for enforcement. We hold Penal Code Section 19.03(a)(5)(B) is not unconstitutionally vague. Point of error three is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

      . Campbell's and Brumfield’s convictions were affirmed in appeals decided today. See Campbell v. State, 18 S.W.2d 914 (Tex.App.—Beaumont 2000, no pet. h.); Brumfield v. State, 18 S.W.2d 921 (Tex.App.—Beaumont 2000, no pet. h.).

      . These individuals were charged with capital murder in the same indictment as Armstrong, Campbell, and Brumfield, but were not tried in the same proceeding.


author: PER CURIAM.

text:
    Avery MASON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85669.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2005.
    Edward Scott Thompson, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Avery Mason (“Movant”) appeals the judgment of the motion court denying his Rule 29.15 post-conviction motion after an evidentiary hearing. Movant was convicted by a jury of first degree burglary, Section 569.160 RSMo 2000, and two counts of third degree assault, Section 565.070, RSMo 2000. Movant was sentenced to twenty years’ imprisonment on the burglary charge and one year each on the assault charges, with the sentences to be served consecutively. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author:
ROBERT G. DOWD, JR., Judge.
      PATRICIA L. COHEN, Presiding Judge,

text:
    STATE of Missouri, Respondent, v. Chancell GRIDIRON, Appellant.
    No. ED 84435.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2005.

      Craig Allan Johnston, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Chancell Gridiron (Defendant) appeals from the judgment upon his conviction by a jury of two counts of robbery in the first degree, Section 569.020, RSMo 2000, (Counts I & III), and two counts of armed criminal action, Section 571.015, (Counts II & IV). Defendant was sentenced to consecutive terms of eighteen years’ imprisonment on Count I, six years’ imprisonment on Count II, and three years’ imprisonment on Count IV. Defendant was sentenced to a concurrent term of ten years’ imprisonment on Count III. On appeal, Defendant argues the trial court erred in submitting a second count of robbery in the first degree in Count III and the related second count of armed criminal action in Count IV where there was insufficient evidence to support the conviction and violated his right to be free from double jeopardy. We reverse Defendant’s convictions and vacate sentences for first-degree robbery in Count III and the related count of armed criminal action in Count IV, and affirm the remaining convictions and sentences.

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. On September 6, 2002, Kim Stapleton (Stapleton), an Assistant Manager at UMB Bank in Brentwood, Missouri, was stationed at one of the four teller windows. Stapleton was supervising the teller line that day and also had money in the teller drawer of her station for which she was responsible. Stapleton was working on the computer at her teller station and speaking to her husband on the phone when she observed two men approaching the bank quickly while pulling masks over their faces. Believing that the bank was going to be robbed, Stapleton hung up the phone, left the teller window and went to the back of the bank. On her way to the back of the bank, Stapleton attempted to advise two co-workers and a customer that the bank was being robbed. As Stapleton exited the budding, she heard: “Good afternoon, ladies and gentleman. This is a robbery.” Stapleton then ran across the parking lot to a Target store where she borrowed a cell phone to call the police.

The robbers, later identified as Defendant and James Buettner (Buettner), entered the bank, wearing masks and carrying firearms. They announced the robbery, ordered everyone to put their hands in the air and their cell phones on the ground. Defendant then took everyone except Jeff Tandler (Tandler) to the bathrooms. At that point, Tandler was the only teller left at the teller windows. Buettner put his gun in Tandler’s face and ordered him to empty his drawer. Tandler emptied his top drawer onto the counter and Buettner placed the money in a bag. Buettner also directed Tandler to empty the drawer in Stapleton’s station. Tandler did so and Buettner placed the money in his bag. Tandler was able to pull the “bait money” from Stapleton’s drawer when he emptied it. The pulling of the “bait money” triggered the silent alarm. Defendant ran across the lobby and told Buettner they needed to go. They left the bank in a black convertible Mustang. Buettner drove and Defendant rode in the passenger seat.

When Defendant and Buettner exited the bank, Brian Boedicker, an off-duty St. Louis County police officer, was traveling by the bank as a passenger in a truck. Upon seeing the two masked men exiting the bank with handguns, Officer Boedicker contacted the 911 operator. Officer Boe-dicker told the driver of the truck to follow the Mustang. Police vehicles soon joined the pursuit. The Mustang traveled at high speeds throughout the chase. Eventually Buettner lost control of the car, causing it to slide through a ditch and come to rest in the front yard of a residence. Buettner then shot and killed himself before the police reached the car. Defendant was apprehended.

The police recovered from the Mustang two handguns, a broken pellet gun, latex plastic gloves, a black cloth mask, a hockey mask, loose money, and a bag containing money. The money recovered from the Mustang totaled $4,419 which accounted for the $3,908 missing from Tandler’s drawer and the $511 missing from Staple-ton’s drawer. There was no ammunition in the guns or in the vehicle except for an empty shell easing.

Defendant was arrested, waived his Miranda rights, and gave a statement to the police. He admitted his part in the robbery. Defendant was charged, acting in concert with Buettner, with two counts of robbery in the first degree and two counts of armed criminal action.

Defendant did not testify at trial and did not present a defense. The jury found Defendant guilty of two counts of robbery in the first degree and two counts of armed criminal action. After the penalty phase, the jury recommended punishment and sentencing of eighteen years’ imprisonment on the first count of robbery, Count I; six years’ imprisonment on the associated armed criminal action count, Count II; ten years’ imprisonment on the second count of robbery, Count III; and three years’ imprisonment on the associated armed criminal action count, Count IV. The trial court then sentenced Defendant to serve the sentences for Counts I, II and IV consecutively and the sentence for Count III concurrently for a total of twenty-seven years’ imprisonment. Defendant now appeals.

In his first point, Defendant argues the trial court erred in submitting the second count of first-degree robbery against Stapleton in Count III, and its related armed criminal action count in Count IV, to the jury over his objections because there was insufficient evidence to support the second robbery conviction where force was only applied to one victim and this subjected him to double jeopardy in that the evidence proved only one count of first-degree robbery was committed. We agree.

A defendant’s right to be free from multiple punishments for the same offense is embodied in the double jeopardy prohibition. State v. French, 79 S.W.3d 896, 898 (Mo. banc 2002). Multiple punishments are permissible if the defendant in law, and in fact, committed separate crimes. French at 898-99. Double jeopardy analysis regarding multiple punishments is limited to determining whether multiple punishments were intended by the legislature. Id. at 898. To determine whether multiple punishments were intended by the legislature, the court looks to the “unit of prosecution” allowed by the statutes under which the defendant was charged. Id. at 899.

Under the facts of this case, we find the count of first-degree robbery and armed criminal action charge involving Stapleton violated Defendant’s right to be free from double jeopardy where it was based on one act of force directed to Tan-dler. The State submitted both counts of robbery on the theory that the threat of immediate force was used only against Tandler for the purpose of forcing Tandler to deliver up property in his possession and to deliver up the property in Staple-ton’s possession. In submitting the robbery count against Stapleton, the State submitted a verdict directing instruction asserting that Tandler, not Stapleton, was threatened and the purpose of that threat was to force Tandler, not Stapleton, “to deliver up the property.” Because there was no evidence of any use or threat of use of force upon Stapleton, there was insufficient evidence to convict Defendant of the second robbery count and violated his right to be free from double jeopardy.

Section 569.020 defines robbery in the first degree as:

A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

(Emphasis added). The term “forcibly steals” is defined in Section 569.010.1 as follows:

[A] person “forcibly steals,” and thereby commits robbery, when, in the course of stealing, as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.

The distinctive characteristic of robbery is “violence to the victim.” State v. Hayes, 518 S.W.2d 40, 45 (Mo.1975).

Here, there was no forcible stealing from Stapleton where there was no use or threat of use of physical force to her. Stapleton had no contact with the Defendant. Stapleton left the building before the robbery took place and Defendant was not aware that she was present in the bank prior to his entry. No weapon was displayed to Stapleton, nor was there use or the threat of the use of force against her. Moreover, Stapleton was not forced to relinquish any property in her control at the time of the taking.

The State relies on Eason v. State, 52 S.W.3d 24 (Mo.App. E.D.2001) to support its argument that it is proper to charge two counts of robbery where force is directed to one person, who under the threat of that force surrenders his or her property and the property of another. In Ea-son, the defendant, an employee of a company that provided home cleaning and meal services to the victims, a daughter and her disabled mother. Id. at 26. Defendant went to the victims’ apartment to “talk about making up time that he had missed.” Id. After daughter allowed the defendant into the apartment, he informed her that he was going to rob her and then pulled a ring off of her finger. Id. at 26. The defendant then instructed the daughter to remove a ring from her mother’s hand. Id. The daughter removed the ring from the hand of her mother, who was in lying in bed in a separate room and was unaware a robbery was occurring, and gave the ring to the defendant. Id. The defendant was charged with two counts of robbery under the current robbery statute. Id. This court rejected the defendant’s contention that because only one victim was threatened only one robbery occurred. Id. at 27. This court held the defendant could properly be convicted of committing two robberies even though the requisite threat of force was directed toward one person, who, under the threat of that force surrenders her property and the property of another. Id. at 28.

We find the Eason case distinguishable from the present facts. In Eason, the defendant was charged with second-degree robbery, unlike Defendant ' who was charged with first-degree robbery. Unlike first-degree robbery, second-degree robbery does not require proof of the use of a weapon. This is particularly significant here where no weapon was ever displayed to Stapleton. More importantly, the defendant in Eason was clearly aware of the mother’s presence, knew exactly where she was, and knew she had control over the property. Although the defendant acted through the daughter to obtain the property, had the daughter not complied with his threats, the defendant could have easily walked into the bedroom and taken the ring directly off of the mother’s finger. In contrast, Stapleton was no longer present in the building and left the property in the bank. Defendant was not aware that Sta-pleton was ever present in the bank prior to the taking of the property. Furthermore, had Tandler refused to comply with Defendant’s demand, he could not have forced Stapleton to deliver up the property. Thus, we find the State reliance on Eason misplaced.

We find there was no use or threat of use of force to Stapleton as required under the statute. Therefore, there was insufficient evidence to convict Defendant of the second robbery count and Defendant was improperly convicted of two counts of robbery based on the threat of use of force to Tandler in violation of the prohibition against double jeopardy. The trial court erred in submitting the second robbery in the first-degree count and accompanying armed criminal action. Accordingly, we reverse Defendant’s convictions for robbery in the first degree of Stapleton in Count III and for the accompanying armed criminal action in Count TV and vacate the sentences for Counts III and IV.

Because we conclude that discussion of Defendant’s second point would have no precedential value, we will affirm as to that point by summary order pursuant to Rule 80.25(b), and are furnishing to the parties a memorandum of the reasons for our decision as to that issue.

Defendant’s convictions for first-degree robbery in Count III and the related count of armed criminal action in Count IV are reversed and the sentences for Counts III and IV are vacated. Defendant’s remaining convictions and sentences are affirmed.

KATHIANNE KNAUP CRANE, J., concurs.

PATRICIA L. COHEN, P.J., concurs in result in separate concurring opinion.

PATRICIA L. COHEN, Presiding Judge,

concurring.

I concur in the result but write separately to express my variance with the majority’s analysis regarding two aspects of this opinion: (1) the standard of review and (2) the precedential value of Eason v. State, 52 S.W.3d 24 (Mo.App. E.D.2001).

The majority concludes that Defendant failed to properly preserve the issue of double jeopardy. Because the record demonstrates otherwise, I disagree.

The State initially indicted Defendant, acting alone, on one court of robbery in the first degree, as follows, in pertinent part: “the defendant forcibly stole U.S. currency in the possession of UMB Bank, and in the course thereof defendant was armed with a deadly weapon.” The State also charged Defendant with armed criminal action. Thereafter, the State filed an information in lieu of indictment charging one count of robbery first and one count of armed criminal action alleging that Defendant, acting with James Buettner, forcibly stole U.S. currency in the possession of UMB Bank.

On November 5, 2003, three days before trial, the State filed a superceding indictment which, for the first time, alleged two counts of robbery in the first degree alleging that Defendant, acting with James Bu-ettner “forcibly stole U.S. currency in the charge of Jeffrey Tandler.... ” (Count I) and “in the charge of Kim Stapleton” (Count III). On the first day of trial, after reviewing the new indictment for the first time, defense counsel objected contending that “two robbery in the first degree counts have been created and they were created to separate a forcible stealing ...” into different counts. More specifically, defense counsel argued that “Miss Staple-ton at no time was near any teller drawer or teller window and at no time was made to be the subject of having the U.S. currency forcibly stolen from her. Mr. Tan-dler was asked to move from one drawer to the other by Mr. Buettner.”

The trial court rejected the defense argument regarding the propriety of the indictment and proceeded to trial. At the close of all the evidence, defense counsel requested that the trial court dismiss the two counts related to Ms. Stapleton on the grounds that Ms. Stapleton did not have possession or control of the currency and that the force that was directed at Mr. Tandler did not transfer to Ms. Stapleton. In addition, at the instruction conference, defense counsel objected to the verdict director submitting the Stapleton counts and specifically raised a double jeopardy issue. The trial court responded, as follows:

Court reviewed Eason v. State, 52 S.W.3d 24, in which a gentleman forcibly robbed a woman at a retirement home. That woman then walked into another room where her mother was. The individual with the gun was not present. She took the ring off her finger, and that was two separate robberies and did not involve double jeopardy and the merger doctrine. Court also reviewed several cases involving bank robberies in which you could not charge a stealing from the two counts of one robbery for the individual teller and for the bank because they merge. But in this case, you have two individuals, different tellers that were involved. The evidence that the Court heard was that she ran out of the bank when she saw the individual’s with the masks as she knew a robbery was going to occur. So there was threat against her and she also heard this was a hold up or this was a robbery when she was leaving the bank. The court will permit the two robberies.

Finally, the defense counsel raised the issue again in the Motion for New Trial, specifically noting that Counts III and IV differed only from Counts I and II in that the property at issue came from two different bank drawers and that the trial court’s failure to dismiss Counts III and IV violated, among other things, the Fifth Amendment to the U.S. Constitution.

There is no question that where the state splits one offense into several parts and prosecutes the defendant separately with respect to each part, the double jeopardy clause is implicated. See State v. Moton, 476 S.W.2d 785, 790 (Mo.1972). Here defense counsel specifically objected to the indictment on double jeopardy grounds as soon as counsel became aware of the existence of the superseding indictment. Defense counsel’s objection was unmistakably framed as a double jeopardy challenge: “two robbery in the first degree counts have been created and they were created to separate a forcible stealing. ...”

The trial court clearly understood that defense counsel was challenging the matter on double jeopardy grounds, discussed the double jeopardy issues, and overruled counsel’s objection to submitting the two counts at issue on the grounds of Eason v. State, 52 S.W.3d 24 (Mo.App. E.D.2001), a double jeopardy case. The purpose of the requirement of raising a constitutional challenge at the earliest possible time is to provide the trial judge with the opportunity to “correct errors and avoid prejudice in the first instance.” State v. Kenley, 952 S.W.2d 250, 260 (Mo. banc 1997). Here, the trial judge expressly considered the double jeopardy challenge at the earliest possible time and at all appropriate junctures thereafter. Accordingly, the issue before us was properly preserved.

I also write to emphasize that, particularly in light of this opinion, our decision in Eason should not be followed. Missouri courts have long held that the “distinctive characteristic” of the crime of robbery is “violence to the victim.” State v. Hayes, 518 S.W.2d 40, 45 (Mo.1975). Thus, the appropriate “unit of prosecution” for double jeopardy purposes is the person who is subject to the force. The majority opinion is consistent with these settled notions and accordingly stands for the proposition that the state cannot properly charge a defendant with two robberies when he uses or threatens to use force against only one person in an effort to cause such person to deliver-up property. To the extent that Eason can be construed to hold otherwise, it is wrongly decided.

      . All further statutory references are to RSMo 2000 unless otherwise indicated.

      . Defendant concedes he failed to phrase his motions or objections specifically in terms of double jeopardy and thus failed to properly preserve his claim of double jeopardy. See State v. Rogers, 95 S.W.3d 181, 185 (Mo.App.W.D.2003)(To properly preserve the constitutional issue for appeal a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.) Although Defendant failed to properly preserve this issue for trial, our review is not limited in scope because a claim of double jeopardy is an assertion of a constitutional grant of immunity which is significantly different than other constitutional guarantees pertaining to procedural rights. State v. Whitmore, 948 S.W.2d 643, 648-49 (Mo.App.W.D.1997). A trial court is without the power of jurisdiction to try or punish a defendant twice for the same offense. Id. at 649. If the trial court was without power or jurisdiction to proceed against a defendant twice for the same offense, then relief can be granted on appeal even though the issue was not properly preserved. Id.

      . The verdict director provided, in relevant part:
      First, that on or about September 6, 2002, in the County of St. Louis, State of Missouri, James Buettner took U.S. Currency, which was property in the charge of Kim Stapleton, and
      Second, that James Buettner did so for the purpose of withholding it from the owner permanently, and
      Third, that James Buettner in doing so threatened the immediate use of physical force on or against Jeffrey Tandler for the purpose of forcing Jeffrey Tandler to deliver up the property, and
      Fourth, that in the course of taking the property, the defendant or James Buettner displayed or threatened the use of what appeared to be a deadly weapon.
      (emphasis added).

      . The Eason case was an appeal from the denial of a motion for post-conviction relief.

      . Defendant received a sentence of twenty-seven years, consisting of eighteen years on Count I (first-degree robbery of Mr. Tandler), six years on Count II, ten years on Count III (first-degree robbery of Ms. Stapleton), and three years on Count IV (armed criminal action). The trial court ran Counts I, II and IV consecutively and Count III concurrent to Counts I, II and IV. Accordingly, reversal of Counts III and IV reduces Defendant’s sentence from twenty-seven years to twenty-four years’ imprisonment.

      . In particular, I disagree with the Eason court's suggestion that White v. State, 694 S.W.2d 825 (Mo.App. E.D.1985) is no longer valid because of the repeal of Section 560.120 RSMo 1969 and the subsequent enactment of Section 569.030. See State v. Whitmore, 948 S.W.2d 643 (Mo.App. W.D.1997). The Eason court asserts that in the transition from Section 560.120 to Section 569.030 the word "that'' was eliminated, somehow altering the requirement that the subject of a robbery charge experience force. However, the word "that” does not appear in Section 560.120. Thus, it is not clear how the absence of a word that was never in the repealed statute could support such a drastic departure from settled law under the replacement statute.


author: PATRICIA L. COHEN, Judge.

text:
    Candace KEHRER, et al, Appellant, v. CORRECTIONAL MEDICAL SERVICES and Robert Capowski, Respondents.
    No. ED 85256.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2005.
    Henry W. Cummings, St. Charles, MO, for appellant.
    Peter J. Dunne, St. Louis, MO, Joan F. Gummels, Jefferson City, MO, for respondents.
   PATRICIA L. COHEN, Judge.

Introduction

Plaintiff Candace Kehrer, an inmate at Women’s Eastern Regional Diagnostic and Correctional Center (“the correctional facility”), appeals from the trial court’s dismissal of her claims against Correctional Medical Services and Robert Capowski, superintendent of the correctional facility. We dismiss.

Statement of Facts and Proceedings Below

Missouri contracted with CMS to provide medical services at the correctional facility. To that end, CMS assigned a nurse to administer medication to inmates. On July 4, 2003, the assigned nurse allegedly administered incorrect medication to approximately seventy inmates. Ms. Kehrer was among the inmates who allegedly received the wrong medication. Several inmates receiving improper medication were transported to a local hospital for treatment. Mary Bass was among the inmates who were transported to the hospital. Ms. Kehrer claimed that as a result of the medication mix-up she and others became ill. Ms. Kehrer further claims that Ms. Bass and others transported to the hospital became ill and experienced fear and emotional distress.

Ms. Kehrer filed a putative class action lawsuit against CMS and Mr. Capowski in July 2004 on behalf of two classes of women inmates. Ms. Kehrer sought to represent a group of inmates designated “Class 1,” consisting of approximately seventy women who allegedly received incorrect medication. Ms. Bass, who was identified in the body of the petition but not in the caption, sought to represent a group of inmates designated as “Class II,” numbering approximately eleven, who also received incorrect medication, but in addition, were transported to the hospital after receiving the incorrect medication.

In August 2004, Ms. Kehrer filed her First Amended Class Action Petition and Motion for Certification of Classes. In response, Defendant Capowski filed a Motion to Dismiss and Opposition to Petitioner’s Motion for Certification of Classes. Likewise, Defendant CMS filed a Motion to Dismiss on the basis of Ms. Kehrer’s failure to comply with Rule 52.08. After a hearing, the trial court issued a Memorandum/Order granting Defendants’ motions to dismiss. Ms. Kehrer appealed and we dismissed for lack of a final judgment. Kehrer v. Correctional Med. Svcs., 2005 WL 525440, - S.W.3d - (Mo.App. E.D.2005). Thereafter, the trial court entered a Judgment of Dismissal, dismissing the petition and entering judgment on Defendants’ behalf. Ms. Kehrer appeals.

Discussion

Before addressing the merits of Ms. Kehrer’s appeal, we first consider whether we must dismiss for failure to comply with Rule 84.04. A brief which substantially fails to comply with Rule 84.04 preserves nothing for review and is inadequate to invoke the jurisdiction of the court. Avis Rent-A-Car Systems, Inc. v. Howard, 133 S.W.3d 122, 123-24 (Mo.App. E.D.2004).

A review of Ms. Kehrer’s brief evidences substantial violations of Rule 84.04(d), governing the form and substance of points relied on. To comply with Rule 84.04(d), an appellant is required to: (1) identify the trial court ruling or action being challenged; (2) state concisely the legal reasons for the claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. City of Perryville v. Nadeau, 88 S.W.3d 162, 164 (Mo.App. E.D.2002). In analyzing the requirements of Rule 84.04(d), the Supreme Court has held that each point relied on must consist of three elements: (1) the trial court ruling; (2) the rule of law the trial court should have applied; and (3) the testimony or evidence which supports the rule of law appellant contends should have been applied. Thummel v. King, 570 S.W.2d 679, 685-86 (Mo.banc 1978).

Ms. Kehrer sets forth the following points relied on:

I The Trial Court erred in dismissing plaintiff Candace Kehrer’s First Amended Petition, on behalf of herself and other Class I members, alleging that Robert Capowski Supt. of Women’s Eastern Regional Diagnostic and Correctional Center (“hereinafter “WERDCC”), acted negligently during supervision that from July 4, 2003 through September 30 2003 in that WERDCC’s employee CMS provided members of Class I with incorrect medication at WERDCC, resulting in Class I members becoming ill and sick. Davis-Bey v. Mo. Dept. of Correction, 944 S.W.2d 294, 295 (Mo.App. W.D.1997); Mo.R.Civ.P. 52.08; Verner, Numerosity and Federal Rule 23: How many is too many?, 49 U. of Mo. Law Review, pp 312-319, 314.; Gordon v. Forsyth County Hospital, 409 F.Supp. 706 [708] (M.D.N.C.), modified on other grounds, 544 F.2d 748 (4th Cir., 1976).
II The Trial Court erred in dismissing plaintiff Candace Kehrer’s First Amended Petition, on behalf of herself and other Class I members, alleging that WERDCC’s employee CMS provided members of Class I with incorrect medication at WERDCC, resulting in Class I members becoming ill and sick. Mo.R.Civ.P. 52.08; Gordon v. Forsyth County Hospital, 409 F.Supp. 706 [708] (M.D.N.C.), modified on other grounds, 544 F.2d 748 (4th Cir., 1976).
III The Trial Court erred in dismissing plaintiff Mary Bass’s First Amended Class Action Petition, on behalf of herself and other Class II members, alleging that Robert Capowski acted negligently in that on July 4, 2003 through September 30, 2003 provided members of Class II with incorrect medication at the Women’s Eastern Regional Diagnostic and Correctional Center (hereinafter ‘WERDCC”), and they became sufficiently ill thereby that they were taken to nearby hospitals including Audrain County Medical Center in Mexico, Mo., a hospital in Columbia [sic], Mo. and a hospital in Jefferson City Mo. for additional diagnosis and treatment. Mo.R.Civ.P. 52.08. Davis-Bey v. Mo. Dept. of Correction, 944 S.W.2d 294, 295 (Mo.App. W.D.1997); Verner, Numerosity and Federal Rule 23: How many is too many?, 49 U. of Mo. Law Review, pp 312-319, 314.; Gordon v. Forsyth County Hospital, 409 F.Supp. 706 [708] (M.D.N.C.), modified on other grounds, 544 F.2d 748 (4th Cir., 1976).
IV The Trial Court erred in dismissing plaintiff Mary Bass’s First Amended Class Action Petition on behalf of herself and Class II members, alleging that CMS acted negligently in that on July 4, 2003 through September 30, 2003 provided members of Class II with incorrect medication at the Women’s Eastern Regional Diagnostic and Correctional Center (hereinafter “WERDCC”), and they became sufficiently sick and ill thereby that they were taken to nearby hospitals including Audrain county Medical Center in Mexico, MO., a hospital in Columbia, [sic] Mo. and a hospital in Jefferson City Mo. for additional diagnosis and treatment. Mo.R.Civ.P. 52.08. Gordon v. Forsyth County Hospital, 409 F.Supp. 706 [708] (M.D.N.C.), modified on other grounds, 544 F.2d 748 (4th Cir., 1976).

Each of Ms. Kehrer’s points fail to (1) state concisely the legal reasons for the claim of reversible error and (2) explain in summary fashion why, in the context of the case, the legal reasons support the claim of reversible error. The points do no more than assert that the trial court erred when it dismissed Candace Kehrer’s First Amended Petition (Points I and II) and Mary Bass’s First Amended Class Action Petition (Points III and TV). Ms. Kehrer provides no legal reasons, concise or otherwise, to support her claims of reversible error. Nor does she specify testimony or evidence supporting the application of any rule of law, let alone one that she contends is applicable. A bare allegation of error is not sufficient to preserve an issue for review. Avis Rent-A-Car, 133 S.W.3d at 124.

The deficiencies in the points relied on are compounded by the deficiencies in the argument. First, the argument does not contain a statement of the applicable standard of review for each claim of error as required by Rule 84.04(e). Davis v. Coleman, 93 S.W.3d 742, 742 (Mo.App. E.D.2002). Second, the entire argument consists of 31 numbered paragraphs, many of which are simply incorporated by reference under each point relied on. Third, there is no citation to relevant legal authority or discussion of how the cases that are purportedly relevant support the argument. An argument should advise the appellate court how principles of law and the facts of the case interact. Davis, 93 S.W.3d at 742. If a party “fails to support a ’ contention with relevant authority or arguments beyond conclusions, the point is considered abandoned.” Grafton v. City of Plattsburg, 167 S.W.3d 731, 734 (Mo.App. W.D.2005). Finally, in contravention of Rule 84.04(a)(6), the brief fails to contain “[a] short conclusion stating the precise relief sought.” Accordingly, we dismiss Ms. Kehrer’s appeal.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

      . At oral argument, Ms. Kehrer’s counsel stated that he did not think the argument against the Attorney General was "an appropriate one” and indicated that he would dismiss Mr. Capowski. However, several weeks after the argument the court received a memorandum stating that "counsel for Candice Kehrer hereby declines to dismiss defendant Robert Capowski....”

      . The briefs refer to Candace Kehrer and Mary Bass as plaintiffs. However, the record reflects that Candace Kehrer alone filed the original petition as she is the sole named party in the caption and is identified as filing suit "on behalf of herself and a class of all those similarly situated.” See Rule 55.02. In addition, the Notice of Appeal identifies the appellant as Candace Kehrer.

      . All rule references are to Mo. Rules Civ. Pro.2004 unless otherwise indicated.

      . In addition to violating the requirements of Rule 84.04(d), the points relied on are dupli-cative and refer to a non-existent pleading. Points I and II refer to the trial court’s error in dismissing Candace Kehrer's First Amended Petition and Points III and IV refer to the trial court’s error in dismissing Mary Bass' First Amended Class Action Petition. Ms. Kehrer and Ms. Bass did not file separate petitions. The legal file reflects that Candace Kehrer alone filed the original petition and First Amended Class Action petition. The legal file does not contain a First Amended Petition and it is, therefore, impossible for the trial court to have erred in dismissing it. Likewise, Mary Bass did not file a First Amended Class Action Petition.

      . After filing the appellant’s brief, counsel discovered he had omitted the required table of contents and table of cases and sought leave to include them in the appellant's brief. However, without seeking leave to amend the original brief, counsel submitted yet another "original” brief that contains a conclusion that fails to track the points relied on and claims the trial court erred in dismissing the First Amended Class Action Petition as well as, for the first time, the Motion for Certification of Classes. Counsel also inserted new material between the last page of the brief and the index. Because counsel did not seek or obtain leave to amend Ms. Kehrer's brief in these respects, we disregard the new material.