author: TERRY JENNINGS, Justice.

text:
    Laird DOCTOR and Linda Doctor, Appellants, v. Howard E. PARDUE and Experimental Aircraft Association, Inc., Appellees.
    No. 01-03-00899-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 15, 2005.
    Rehearing Overruled March 9, 2006.
    See also 76 S.W.3d 496.

      Dana R. Allison, Brownsville, Lance H. Lubel, Heard, .Robins, Cloud, Lubel, & Greenwood, L.L.P., Houston, Guy H. Allison, The Allison Law Firm, Corpus Christi, Linda L.S. Moroney, Sharon S. McCally, Storey, Moore & McCally, P.C., JoAnn Storey, JoAnn Storey, P.C., Houston, for Appellants.
    Jeffrey J. Putnam, Mark Cohen, Cohen, Gorman & Putnam, L.L.P., Houston, Robert F. Ruckman, David T. Moran, Jackson Walker L.L.P., Dallas, Frank G. Vlahakos, Richard E. Griffin, Jackson & Walker, L.L.P., Houston, for Appellees.
    Panel consists of Justices JENNINGS, HANKS, and EVANS.

       The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.

   OPINION

TERRY JENNINGS, Justice.

Appellants, Laird .Doctor (“Lad”) and Linda Doctor, challenge the trial court’s judgment entered after a jury trial in their negligence suit against appellees, Experimental Aircraft Association, Inc. (“EAA”) and Howard Pardue, for personal injuries that Lad sustained in an airplane collision that occurred in Wisconsin. The Doctors present six issues for our review, seeking a reversal of the trial court’s judgment, which ordered that they recover $500,000 from EAA and take nothing from Pardue. The Doctors contend that the trial court erred in concluding that Texas was the state with the most significant relationship to the issue of charitable immunity and in applying the Texas Charitable Immunity and Liability Act (the “Act”) to limit their award against EAA and to completely immunize Pardue. The Doctors also contend that the evidence is factually insufficient to support the jury’s findings of zero damages for Lad’s past and future physical pain and mental anguish, past and future disfigurement, and past and future physical impairment; zero damages for Lad’s past medical expenses; $2.5 million in damages for Lad’s future medical expenses; zero damages for Linda’s past loss of consortium; and $50,000 for Linda’s future loss of consortium.

We reverse and remand for a new trial.

Factual and Procedural Background

EAA, a not-for-profit charitable corporation incorporated under the laws of Wisconsin, maintains its principal place of business in Wisconsin. Although it is not registered to do business in Texas, EAA is subject to the general jurisdiction of Texas courts. EAA is an organization dedicated to preserving the grassroots aspect of aviation and encouraging families and children to become interested in aviation. It assists governmental agencies in the development of aviation activities and promotes and encourages aviation safety, aviation research and development, and non-commercial aviation. Every year, EAA hosts a convention and sponsors an air show, known as “AirVenture,” in Oshkosh, Wisconsin.

In July 1999, Lad was rendered a quadriplegic at the air show when the vintage World War II Corsair aircraft that he was piloting collided on the runway with another aircraft piloted by Pardue. At the time of the collision, Lad was working as a professional pilot and an employee of the Corsair’s owner, the Cavanaugh Flight Museum (“CFM”), located in Addison, Texas. Pardue was piloting an aircraft owned by the Breckenridge Air Museum (“BAM”), a charitable organization located in Breckenridge, Texas, and he was serving as a BAM volunteer. Lad and Pardue, both Texas residents, attended the air show in Wisconsin to exhibit the aircrafts on behalf of their respective organizations.

The Doctors sued EAA and Pardue for negligence, seeking damages “under the laws of the State of Texas.” EAA filed a motion for partial summary judgment seeking a ruling that, based on the Act, its liability to the Doctors was limited to $500,000. Pardue also filed a motion for partial summary judgment seeking a ruling that, based on the Act, as a volunteer he was entitled to absolute immunity from liability for the Doctors’ injuries. The Doctors then filed an amended petition asserting that Wisconsin law should govern the issue of charitable immunity. EAA and Pardue also filed pretrial motions for determination of applicable law, arguing that Texas law should govern and that the Act should apply. The trial court carried these motions through trial.

The jury, finding that the negligence of EAA, Pardue, and Lad proximately caused the collision, attributed 25% of the negligence to EAA, 25% of the negligence to Pardue, and 50% of the negligence to Lad. The jury awarded zero damages for Lad’s past and future physical pain and mental anguish, past and future disfigurement, past and future physical impairment, and past medical expenses; $2.5 million in damages for Lad’s future medical expenses; zero damages for Linda’s past loss of consortium; and $50,000 for Linda’s future loss of consortium. The jury further found that, at the time of the collision, EAA was a charitable organization and that Pardue was acting in good faith and in the course and scope of his duties and functions as a volunteer of a charitable organization. Based on these findings, the trial court applied the limitations set forth in the Act and rendered final judgment that the Doctors recover $500,000 from EAA and take nothing from Pardue.

Choice of Law

In their fifth issue, the Doctors argue that the trial court erred in applying the Act to limit EAA’s liability because Wisconsin had the most significant relationship to the charitable immunity issue as EAA is a Wisconsin organization, the acts and omissions underlying the jury’s negligence finding occurred in Wisconsin, and the crash and resultant injury occurred in Wisconsin. The Doctors also argue that if the trial court’s application of the .Act is affirmed by this Court, Texas corporations will lose the protections provided under the Act when sued in foreign states by foreign plaintiffs, even for injuries arising out of charitable services performed in Texas.

The determination of which state’s law applies is a question for the court. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex.2000). Therefore, we must review the trial court’s decision to apply Texas law to this case de novo. Minn. Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996); Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Texas courts use. the “most significant relationship” test to decide choice of law issues. Torrington Co., 46 S.W.3d at 848; Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.2000); see also Restatement (Second) of Conflict of Laws §§ 6, 145 (1971). Under that test, a court must consider which state’s law has the most significant relationship “to. the particular substantive issue to be resolved.” Hughes Wood Prods., Inc., 18 S.W.3d at 205.

EAA argues that the trial court correctly applied the Act to reduce the jury’s damages award to $500,000 because Texas is the state with the most significant relationship “to the discrete issue of the amount of compensatory damages” recoverable by the Doctors. EAA asserts that Texas-has an overriding interest in reducing the liability exposure and limiting compensatory damage awards against charitable organizations, including those not incorporated in Texas, like EAA. In support of its argument, EAA relies on Torrington, in which the plaintiffs argued in favor of application of Texas law on damages, while the defendants argued for application of Michigan law, which did not permit recovery of mental anguish damages, or Nebraska law, which only permitted recovery for pecuniary losses. 46 S.W.3d at 848 n. 16.

However, the issue here, unlike the issue presented to the court in Torrington, does not directly' relate to the type of damages recoverable by plaintiffs, but instead relates to protections afforded to a certain class of defendants — charities and volunteers, for a certain type of conduct— performance of charitable services. We note that the doctrine of charitable immunity has been treated as. an affirmative defense that must be pleaded and proven by parties seeking its application. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (stating, that immunity from liability, like other defenses to liability, must be pleaded and proven and can be waived); Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 939 (Tex.1992) (stating that governmental immunity and charitable immunity can be waived by failure to assert them as affirmative defenses) (citing Davis v. City of San Antonio, 752 S.W.2d 518, 520 (Tex.1988)). The central issue disputed by the parties in this case, distinct from the issue in Torrington, is whether the trial court properly limited the liability of EAA and completely immunized Pardue pursuant to the provisions of the Texas Charitable Immunity and Liability Act. We thus hold that the underlying particular substantive issue presented to this court is one of “charitable immunity.”

Accordingly, we now consider, under the most significant relationship test, whether the law of Wisconsin or Texas should apply. We begin our choice of law analysis by consulting section 168 of the Restatement of Conflict of Laws, which specifically addresses charitable immunity. Restatement (Second) of Conflict of Laws § 168 (1971); see also Hughes Wood Prods., Inc., 18 S.W.3d at 206 n. 2 (stating that “[this] Court has often applied more specific sections of the Restatement to address particular choice of law issues”); Robertson v. Estate of McKnight, 609 S.W.2d 534, 536 (Tex.1980) (applying section 169 of Restatement to determine choice of law on issue of interspousal tort immunity). Section 168 provides that the law selected by application of section 145 of the Restatement determines the issue of charitable immunity. Restatement (Second) of Conflict of Laws § 168. The comments to section 168 further provide that the determination of the applicable law should be made in light of the principles set forth in section 6. Restatement (Second) of Conflict of Laws § 168 cmt. b.

Section 6 sets out the following factors relevant in a choice of law analysis:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
ic) the relevant policies of the other interested states and the relative interests of those states in determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2); see also Hughes Wood Prods., Inc., 18 S.W.3d at 205. In tort actions, the needs of interstate and international systems, the relevant policies of the forum, the relevant policies of other interested states, and the ease in the determination and application of the law to be applied assume greater importance. Restatement (Second) of Conflict of Laws § 145 cmt. b.

Section 145 states that the following contacts are to be taken into account when applying the principles of section 6 to determine the law applicable to a particular issue:

(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) of Conflict of Laws § 145(2) (1971). These contacts are to be evaluated according to their relative importance with respect to the particular issue. Id. Furthermore, the- number of contacts with a state is not determinative. Torrington Co., 46 S.W.3d at 848. Rather, a court must evaluate the contacts in light of the state policies underlying the particular substantive issue. Id. .

The facts controlling the choice of law analysis here are largely undisputed. Lad’s injury occurred in Wisconsin, as did the conduct causing the injury. See Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 504-05 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (agreeing with EAA’s contention that there was no evidence to support finding of specific jurisdiction in this case). At the time of the collision, although the Doctors and Pardue were Texas residents, EAA was incorporated in Wisconsin and maintained'its principal place of business in Wisconsin.

In regard to the relevant policies of the forum, we note that Texas has abolished the common-law doctrine of charitable immunity. Howle v. Camp Amon Carter, 470 S.W.2d 629, 630 (Tex.1971); Sprague v. Mem’l Baptist Hosp. Sys., 580 S.W.2d 1, 2 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). However, in 1987, the Texas Legislature enacted the Texas Charitable Immunity and Liability Act, limiting the liability of charitable organizations and immunizing volunteers who meet certain conditions. Tex. Civ. PRAC. & Rem. Code Ann. §§ 84.001-008 (Vernon Supp. 2004-2005). Specifically, in any civil action .brought against a nonhospital charitable organization for damages based on an act or omission by the organization or its employees or volunteers, the liability of the organization is limited to a maximum of $500,000 for each person and $1,000,000 for each single occurrence of bodily injury or death. Tex. Civ. PRAC. & Rem.Code Ann. § 84.006. The Legislature passed the Act with the following findings and purposes:

(1) robust, active, bona fide, and well-supported charitable organizations aré needed within Texas to perform essential and needed services;
(2) the willingness of volunteers to offer their services to these organizations is deterred by the perception of personal liability arising out of the services rendered to these organizations;
(3) because of these concerns over personal .liability, volunteers are withdrawing from services in all capacities;
(4) these same organizations have a further problem in obtaining and affording liability insurance for the organization and its employees and volunteers;
(5) these problems combine to diminish the services being provided to Texas and local communities because of higher costs and fewer programs;
(6) the citizens of this state have an overriding interest in the continued and increased delivery of these services that must be balanced with other policy considerations; and ■
(7) because of the above conditions and policy considerations, it is the purpose of this Act to reduce the liability exposure and insurance costs of these organizations and their employees and volunteers in order to encourage volunteer services and maximize the resources devoted to delivering these services.

Tex. Crv. Prac. & Rem.Code Ann. § 84.002 (Vernon Supp.2004-2005) (emphasis added).

Like Texas, Wisconsin has also essentially eliminated common-law charitable immunity. See Lewis v. Physicians Insur. Co. of Wisconsin, 243 Wis.2d 648, 627 N.W.2d 484, 492 (2001) (noting that charitable immunity doctrine in Wisconsin is largely defunct); Szarzynski v. YMCA, 184 Wis.2d 875, 517 N.W.2d 135, 141 (1994) (citing Widell v. Holy Trinity Catholic Church, 19 Wis.2d 648, 121 N.W.2d 249, 251 (1963) (stating that immunity for charitable and religious organizations has been eliminated by courts)). Wisconsin eliminated common-law charitable immunity on public policy grounds. In Widell, the Wisconsin Supreme Court stated:

When an institution owes a duty of care to another and, as a result of carrying on its activities through agents whether the enterprise or activity involves financial gain or not and no matter how lofty the purpose or motive, injures another either directly or through agents the breach of duty ought not be excused or justified on the grounds of the laudable purpose or the public benefit of the activity causing the injury.... Certainly institutions teaching divine justice, the dignity of man and his obligations to his fellowmen and to his Creator would not claim on the basis of their teachings that they ought to be exempt from repairing the injury done by themselves or their agents to another.

Id. at 254; see also Kojis v. Doctors Hosp., 12 Wis.2d 367, 107 N.W.2d 131, 133-34 (1961) (stating that charitable hospitals are no longer civilly immune because they are now “larger in size, better endowed, and on more sound economic basis” and that “insurance covering their liability is available and prudent management would dictate that such protection be purchased”). However, following the elimination of common-law charitable immunity in Wisconsin, the Wisconsin Legislature did not enact laws, similar to those enacted in Texas, insulating charities from liability for injuries arising out of the performance of charitable services.

With these policy considerations in mind, we note that the injury and the conduct occurred in Wisconsin, where EAA is incorporated and maintains its only offices. Also, although EAA maintains contacts with Texas sufficient to support a finding of general jurisdiction, none of its Texas contacts were related to the aircraft collision in this case. We thus conclude that Wisconsin has the dominant public policy interest in determining whether EAA, a not-for-profit charitable organization incorporated under the laws of Wisconsin, should be held immune from tort liability for the collision that occurred in Wisconsin. Applying the protections afforded in the Act to EAA for liability arising from the activities it conducted exclusively in Wisconsin would be contrary to the policy of Wisconsin. Wisconsin has expressly stated its policy that charities conducting activities which cause injuries should generally not be immune from liability for those injuries. As for the relevant policies of Texas, we note that although the Act is not expressly limited to organizations incorporated in Texas, the express purpose of the Act is to encourage charitable organizations to perform charitable services “within Texas.” Tex. Crv. PRAC. & Rem.Code Ann. § 84.002(1). Thus, the purposes sought to be achieved by the Act would not be furthered by applying the Act to protect EAA, a Wisconsin-based charitable organization, from liability arising out of a charitable event that it conducted in Wisconsin.

We also note that EAA could have no justified expectation that it would be entitled to the protections afforded under the Act for liability arising out of its Wisconsin air show. The record indicates that volunteers from all over the country participated in the EAA convention and air show, and any expectation by EAA that it might be immune from liability for injuries sustained to participants, depending upon the residence of the participants who were injured, would be unreasonable. Had a Wisconsin resident, or a resident of another State without charitable immunity protections similar to those available in Texas, been injured, EAA would not have any claim to charitable immunity.

Finally, in regard to whether the application of Wisconsin law furthers the interests of certainty, predictability, and uniformity of result, we note that these interests are important when a party is likely to give advance thought to the legal consequences of its actions. Restatement (Second) of Conflict of Laws § 145 cmt. i. Wisconsin does not provide charitable immunity, yet EAA elects to maintain its only offices in Wisconsin and to conduct its annual convention and air show in Wisconsin. Here, if we were to conclude that the domicile of the injured party or the forum of the suit were the controlling factors in determining what law to apply on the issue of charitable immunity, this conclusion would lead to unpredictable and non-uniform results. If we were to accept EAA’s argument, by the same logic, a non-resident of Texas, injured in Texas by acts or omissions of a charity, incorporated in Texas and performing services in Texas, would undoubtedly pursue his claims against the charity in a non-Texas forum and argue against application of the Act. Such a result would be contrary to the clear purposes of the Act, which is to limit charities’ liability arising out of services performed in Texas, regardless of the forum of the suit or the residence of the injured party.

In considering the “ease in the determination and application of the law to be applied,” we recognize that Texas is the forum state and that the parties acquiesced to the trial court’s application of Texas law to the liability issues. See Torrington Co., 46 S.W.3d at 850. We also note that the Doctors and Pardue are residents of Texas. However, after considering the choice of law principles in section 6 and the factors in section 145, we hold that Wisconsin is the State with the most significant relationship to the issue of charitable immunity and that Texas does not have an overriding interest in seeing the Act applied to this case.

In support of its argument for application of Texas law, EAA asserts that (1) EAA has been held to be subject to the general jurisdiction of Texas courts, (2) Wisconsin interests would be served by applying Texas law, and (3) the Act applies to foreign charities doing business in Texas. First, our sister court’s finding that “Texas has a greater, or at least equal, interest with that of all other states in adjudicating this claim,” was made in the context of a general jurisdiction analysis, which is completely distinct from the choice of law analysis undertaken by this Court. See Experimental Aircraft Ass’n, Inc., 76 S.W.3d at 509. The fact that EAA has been held subject to general jurisdiction in Texas does not support EAA’s argument that it should be entitled to the benefits and protections of the Act for liability arising out of conduct unrelated to its Texas contacts.

Second, EAA’s argument that application of Texas law would serve the “interest of Wisconsin by reducing the damages awarded against its resident charitable organization” is without merit. Wisconsin has made a policy decision to eliminate charitable immunity, and has specifically elected not to offer protections to its charitable organizations similar to those available in Texas. Texas courts have no authority to change Wisconsin public policy.

Third, the Act does not purport to encompass all charities incorporated in other states that do some business in Texas. Instead, the Act plainly states that it is intended to encourage the performance of charitable services within Texas. It does not indicate that simply because a charity has been found to maintain continuous and systematic contacts with Texas, it should be entitled to protections under Texas law for conduct and injuries occurring outside of Texas. Although a charitable organization that is incorporated in another state but performs services in Texas for the benefit of Texas residents may have a legitimate claim to the protections afforded under the Act, EAA is seeking protection from liability for conduct which occurred outside of Texas and which was not specifically directed at Texas residents.

Accordingly, we hold that the trial court erred in concluding that Texas was the state with the most significant relationship to the issue of charitable immunity as to EAA and in applying the Act to limit the liability of EAA.

We sustain appellants’ fifth issue.

Volunteer Immunity

In them sixth issue, the Doctors argue that the trial court erred in applying the Act to completely immunize Pardue because their injuries were caused by Par-due’s negligent operation or use of an airplane. The Doctors further argue that because the question of whether there has been a statutory waiver of immunity is a question for the court, the trial court erred in submitting a question to the jury concerning the application of the Act to Par-due.

Pardue argues that the Act immunizes him because his alleged negligence did not involve the operation or use of an airplane and there was no nexus between his alleged negligent operation or use of an airplane and the Doctors’ injuries. He contends that the Doctors’ theory of liability was confined to their allegations that Pardue’s negligence during his pre-flight briefing caused the collision and asserts that the Doctors “unwaveringly focused not on Pardue’s operation or use of an airplane but upon Pardue’s inadequate briefing and poor communication.” He also asserts that the Doctors’ evidence in support of their theory supports a deemed finding by the jury that the Doctors’ injuries were not proximately caused by Par-due’s negligent operation or use of an airplane.

The Act provides in relevant part:

(b) Except as provided by Subsection (c) of this section ... a volunteer who is serving as a direct service volunteer of a charitable organization is immune from civil liability for any act or omission resulting in death, damage or injury if the volunteer was acting in good faith and in the course and scope of his duties or functions within the organization.
(c) A volunteer of a charitable organization is liable to a person for death, damage, or injury to the person or his property proximately caused by any act or omission arising from the operation or use of any motor-driven equipment, including an airplane, to the extent insurance coverage is required ... and to the extent of any existing insurance coverage applicable to the act or omission.

Act of June 1,1987, 70th Leg., ch. 370, § 1, 1987 Tex. Gen. Laws 1808 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 84.004 (Vernon 2005) (emphasis added)).

The charge contained a question that asked the jury whether Pardue “was acting in good faith and in the course and scope of his duties and functions” as a volunteer in a charitable organization at the time of the occurrence in question. The charge did not contain any question as to whether the Doctors’ injuries were proximately caused by an act or omission arising from the operation or use of an airplane, and neither party requested a submission on this issue. Instead, the charge simply asked the jury whether the negligence of Pardue caused the occurrence in question.

During the charge conference, the Doctors objected to the submission of the question regarding Pardue’s volunteer status as “not relevant since [all parties] agreed that Mr. Pardue is limited to the $175 million in coverage.” It appears from the record that, by making this objection, the Doctors conceded that, if the Act properly applied, Pardue was a volunteer and he was entitled to the protections afforded under subsection (c) of section 84.004, and thus could be held liable only to the extent of any existing insurance coverage applicable to Pardue’s alleged acts or omissions. The court overruled the Doctors’ objection, and submitted a question about Pardue’s volunteer status.

The jury found that Pardue was acting in good faith and in the course and scope of his duties and functions as a volunteer in a charitable organization at the time of the collision, and the trial court, based on this finding, rendered final judgment that the Doctors take nothing from Pardue. There is nothing in the record to indicate why the trial court applied section 84.004(b), immunizing Pardue from liability, instead of applying subsection (c), and limiting Pardue’s liability “to the extent of any existing insurance coverage applicable.”

The Doctors did not specifically raise this issue in their motion for new trial or in their motion to modify, correct, or reform the judgment. Instead, the Doctors contended that the evidence was factually insufficient to support the jury’s finding that Pardue was acting as a volunteer in a charitable organization at the time of the collision and, alternatively, that the jury finding on this issue was immaterial since Wisconsin law, which should have been applied pursuant to the most significant relationship test, did not provide immunity for Pardue. However, in their motion to disregard jury findings and for judgment notwithstanding the verdict, filed after the trial court entered a take-nothing judgment in favor of Pardue, the Doctors argued that the jury’s finding that Pardue was acting as a volunteer should be disregarded because the evidence established, as a matter of law, that the Doctors’ injuries were caused by Pardue’s acts or omissions arising from the operation or use of an airplane.

Here, the record reveals that the Doctors alleged, and presented evidence at trial, that Pardue, in his role as a flight leader and participant in the air show, negligently caused the collision. While EAA and Pardue vigorously disputed liability at trial, the jury apportioned 25% liability to EAA and 25% liability to Par-due, and neither defendant challenges the legal or factual sufficiency of the evidence supporting those negligence findings. The Doctors did assert and did offer testimony concerning the adequacy of the pre-flight briefing provided by Pardue and Pardue’s execution of the flight plan and his communication to the other pilots, before and during the run up and during the flight in question. However, Pardue’s argument that there was no nexus between his alleged negligent operation or use of an airplane and the Doctors’ injuries necessarily fails. The jury found that the negligence of Pardue caused the occurrence in question. Any such negligence in regard to Pardue’s MEM pre-flight briefing, execution of the flight plan, and/or communication with other pilots directly concerned his operation and use of his aircraft. More importantly, both Lad and Pardue were piloting their planes at the time of the collision. The bottom line is that the evidence conclusively shows that Lad was injured when, in the course of performing in the air show, his aircraft collided on the runway with an aircraft piloted by Pardue. Thus, the evidence establishes, as a matter of law, that the Doctors’ injuries were proximately caused by an act or omission “arising from the operation or use of ... an airplane.” Tex. Crv. PRAC. & Rem.Code Ann. § 84.004(c). Accordingly, we hold that the trial court erred in not applying section 84.004(c) of the Act, limiting the liability of Pardue to the extent that he possessed any applicable insurance coverage.

Alternatively, Pardue argues that the Doctors waived any error based on their contention that their injuries were proximately caused by Pardue’s negligent operation or use of an airplane because they failed to request a jury question on this issue, object to this omission from the charge, obtain written findings necessary to support a judgment of liability, and object to the trial court’s take-nothing judgment on the grounds of legally or factually insufficient evidence. The Doctors, however, argued in a post-judgment motion that the evidence established, as a matter of law, that their injuries were caused by Pardue’s acts or omissions arising from the operation or use of an airplane. Pardue emphasizes that this argument was made in the Doctors’ “motion to disregard jury findings and for judgment nov” rather than in their motion for new trial or in their motion to modify, correct, or reform judgment.

The effect of a motion depends on the nature of the instrument, and we look to an instrument’s substance rather than its form. Finley v. J.C. Pace Ltd,., 4 S.W.3d 319, 320 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The substance of a motion is not determined solely from its caption or introduction, but instead is gleaned from the body of the motion and the prayer for relief. Id. Furthermore, the supreme court has stated that “a timely filed post-judgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule 329b(g).” Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 314 (Tex.2000); see also Tex.R. Civ. P. 329b(g); Ramirez v. Williams Bros. Constr. Co., 870 S.W.2d 551, 552 (Tex.App.-Houston [1st Dist.] 1993, no writ); Brazos Elec. Power Coop., Inc. v. Callejo, 734 S.W.2d 126, 129 (Tex.App.-Dallas 1987, no writ).

Here, after the entry of the final judgment, which provided absolute immunity to Pardue, the Doctors contemporaneously filed multiple post-judgment motions, including a motion for new trial, a motion to modify, correct, or reform the judgment, and a motion to disregard jury findings and for judgment notwithstanding the verdict. 'In their argument that the evidence established, as a matter of law, that the Doctors’ injuries were caused by Par-due’s acts or omissions arising from the operation or use of an airplane, it is readily apparent that the Doctors were seeking a substantive change in the judgment. We thus conclude that appellants preserved this issue for our review.

Having held that the trial court erred in not applying section 84.004(c) of the Act and limiting the liability of Pardue to the extent that he possessed any applicable insurance coverage, we further hold that the trial court erred in rendering a take-nothing judgment in favor of Pardue.

We sustain appellants’ sixth issue.

Damages

In their first issue, the Doctors argue that, because it is undisputed that Lad suffered catastrophic injuries that rendered him a quadriplegic, the jury’s zero damage findings for intangible damages, including past and future physical impairment, past and future mental anguish, and past and future disfigurement, are against the great weight and preponderance of the evidence. In their second issue, the Doctors argue that the jury’s zero damage finding for past medical expenses is against the great weight and preponderance of the evidence because there was uncontroverted evidence of approximately $400,000 in past medical expenses. In their third issue, the Doctors argue that the jury’s award of $2.5 million in damages for future medical expenses is against the great weight and preponderance of the evidence because EAA’s and the Doctors’ expert testimony established a range of $5.3 million to $8.1 million for future medical expenses. In their fourth issue, the Doctors argue that because there is uncon-troverted evidence of Linda’s loss of consortium as a result of Lad’s injuries, the jury’s finding of zero damages for Linda’s past loss of consortium and $50,000 in damages for Linda’s future loss of consortium are against the great weight and preponderance of the evidence.

EAA and Pardue do not respond to the Doctors’ first four issues.

Standard of Review

To sustain a challenge to the factual sufficiency of a jury’s failure to award damages or its award of inadequate damages, we consider and weigh all the evidence, both supporting and against the findings, in order to decide whether the verdict should be set aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Prescott v. Kroger Co., 877 S.W.2d 373, 374 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We will uphold the jury’s verdict unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience. Pool, 715 S.W.2d at 635; Prescott, 877 S.W.2d at 374. We may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. We note that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). When, as in this case, the jury’s failure to find greater damages in more than one overlapping category is challenged, we must first determine if the evidence unique to each category is factually sufficient. Id. at 775. If it is not, we must then consider all the overlapping evidence, together with the evidence unique to each category, to determine if the total amount awarded in the overlapping categories is factually sufficient. Id.

The Court’s Charge

The charge asked the jury what sum of money would fairly and reasonably compensate Lad for his injuries resulting from the collision. It required the jury to answer separately for the following elements of damages: (1) physical pain and mental anguish sustained in the past; (2) physical pain and mental anguish that, in reasonable probability, will be sustained in the future; (3) disfigurement sustained in the past; (4) disfigurement that, in reasonable probability, will be sustained in the future; (5) physical impairment sustained in the past; (6) physical impairment that, in reasonable probability, will be sustained in the future; (7) reasonable expenses of necessary medical care in the past; and (8) reasonable expenses of necessary medical care that, in reasonable probability, will be sustained in the future. The charge also asked the jury what sum of money would fairly and reasonably compensate Linda for her past and future loss of consortium. It instructed the jury to “consider the elements of damages listed and none other,” to “consider each element separately,” and to “not include damages for one element in any other element.”

In regard to Lad, the jury awarded $2.5 million in damages for future medical expenses and zero damages for past and future physical pain and mental anguish, past and future disfigurement, past and future physical impairment, and past medical expenses. In regard to Linda, the jury awarded zero damages for past loss of consortium and $50,000 for future loss of consortium.

The Evidence

In our determination of whether the verdict should be set aside, we now consider and weigh all the evidence, both supporting and against these findings.

Past and future physical impairment, physical pain and mental anguish, and disfigurement

In order to recover damages for physical impairment, “the effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity.” Golden Eagle Archery, Inc., 116 S.W.3d at 772. Moreover, the “loss of enjoyment of life” may be considered as a factor in assessing damages for physical impairment. Id. In order to recover mental anguish damages, a plaintiff must establish “a high degree of mental pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). Disfigurement has been defined as that which impairs the appearance of a person, or that which renders unsightly, misshapen or imperfect, or deforms in some manner. Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 160 (1960); Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 252 (Tex.App.-Texarkana 2005, no pet.).

Here, the undisputed evidence establishes that Lad suffered a spinal cord injury in the collision and was rendered a quadriplegic. Lad has a “high level quadriplegia” and is no longer able to walk or move his legs, arms, or hands. He suffers from substantial swelling as a result of his inability to move his limbs. He has feeling only in his face and is able to power his wheelchair only by using his head and mouth. Lad has significant respiratory problems, his breathing muscles are impaired, and he requires daily breathing treatments and nighttime ventilation. At the time of trial, he required ventilator treatments three to four times daily and Lad’s physician testified that, if his condition persisted, he would always require ventilation. As a result of the collision, Lad’s diaphragm is abnormal. He fatigues when he talks for extended periods of time, and as he talks, carbon dioxide builds up in his lungs, which causes him to suffer from confusion and disorientation.

Lad is not able to care for himself. He has no bladder or bowel control and must undergo bowel treatments daily. He can be transferred from his bed to his wheelchair only with the assistance of at least two other people. He must use special seats, mattresses, and other equipment. He must be repositioned every thirty minutes to prevent skin problems, and must have his skin brushed every day. As Lad ages, his risk of skin breakdown will increase and his immune system will continue to decline. He also has spasms and tremors when he is touched.

Lad has suffered numerous medical complications related to his spinal cord injury that have made his condition very fragile. His condition has caused profound osteoporosis, and he cannot control his body temperature, which may quickly reach as high as 105 degrees or as low as 94 degrees. He suffers from life-threatening blood-pressure problems. Lad does not sleep well; he wakes up every two to three hours, and sometimes only sleeps two to three hours a night.

Moreover, Lad’s condition has worsened since the collision, and the level at which he has no feeling has risen. At the time of trial, surgery was planned in hopes of improving his condition. However, it is undisputed that Lad will always be a quadriplegic and will always be incapable of caring for himself.

■ Lad testified, in explicit detail, concerning the physical pain and mental suffering that he has experienced. He described the indignity he feels as a result of his condition and his constant need for assistance in performing the most basic of human functions. Lad related his feelings of depression when he discovered that, despite every effort at rehabilitation, he would never walk again and would always need a ventilator to breathe. Lad also noted that during one particular treatment, when a tube was inserted into his throat, he gagged, his jaw cracked, and he experienced severe discomfort. Lad explained that suctioning performed on him during treatment is very uncomfortable and that breathing through a ventilator is also very uncomfortable. When his blood pressure is elevated, Lad experiences headaches and painful tightening of his neck.

Linda testified that Lad has never been able to cope with his paralysis and that he is extremely depressed. Lad has described himself to Linda “as a head on top of a body.” Lad’s general attitude has significantly changed for the worse, he frequently becomes angry, and he has stated that he would like to die. Lad has undergone counseling to attempt to cope with his injuries, but Lad and his family are frightened by his condition, and Lad lives in fear. Specifically, Lad is fearful that his ventilator may stop working or that he will be dropped when being transferred or moved. Lad is also fearful that he may be injured by someone attempting to assist him.

The Doctors also presented extensive evidence concerning Lad’s hospitalization, and the pain and suffering that he has experienced during those hospitalizations. Immediately after the collision, Lad was taken to a local medical center and then transferred to a spinal cord injury unit at another hospital, where he stayed for one week. While there, he was placed on a ventilator and fed through a stomach tube. Linda testified that Lad was terrified. Lad was then transferred to another hospital for continued spinal cord care, and remained at that hospital for another month. There, Lad underwent decompression surgery to stabilize his neck, during which pins were inserted into his neck to hold it in place. These metal pins cause Lad pain. While at this medical center, Lad could not communicate with anyone, make any sound, or press a call button to summon the assistance of the nurses. Lad could not move his head, but he did experience discomfort in his head, and was medicated for that discomfort. Lad also was strapped to a board to completely immobilize him.

Lad was then transferred to another care facility for rehabilitation, where he remained for another two months. There, Lad suffered from numerous medical conditions and complications, including pneumonia, respiratory problems, infections, hypertension, and anemia.

Past medical expenses

To recover past medical expenses, a claimant must prove that the expenses were reasonable and necessary. Nat’l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex.App.-Houston [1st Dist.] 1991, no writ). A plaintiff may prove medical expenses are reasonable and necessary by submitting affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon Supp.2004-2005); see also Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In this case, the Doctors presented medical billing records supported by affidavits, which established reasonable and necessary medical expenses of over $400,000. EAA even essentially conceded during closing argument that the Doctors had proven past medical expenses in this amount.

Future medical expenses

Texas follows the “reasonable probability rule” for future damages for personal injuries. Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 828 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Thus, to recover future medical expenses, a plaintiff must show that there is a reasonable probability that expenses resulting from the injury will be necessary in the future and the reasonable costs of such care. Id.

Here, the Doctors’ expert testified in support of an award of $8,134,659.08 in future medical expenses. EAA’s expert testified to $5,320,027 in future medical expenses. In closing argument, EAA argued that an award of five million dollars for future medical expenses would be “more than reasonable.” Yet the jury awarded only $2.5 million for future medical expenses, less than half the amount recommended by EAA’s own expert.

Loss of consortium

Linda testified that before the accident, Lad was a warm and caring husband, but since the accident he does not like for Linda to kiss him and that she can no longer talk to him because he has so much with which to cope. Linda explained that she no longer has her husband to console her and that she wakes up each morning with the same realization that Lad is paralyzed.

The jury’s findings

In regard to their first issue, the Doctors presented overwhelming and uncon-troverted evidence establishing that, as a result of the collision, Lad was rendered a quadriplegic and that Lad sustained, and in reasonable probability would sustain in the future, severe physical pain and mental anguish. The evidence also establishes that Lad is disfigured and physically impaired as a result of the collision. It was uncontroverted that Lad would remain disfigured and physically impaired for the remainder of his life. Furthermore, the record reveals that appellees made virtually no attempt to controvert the Doctors’ evidence concerning these elements of damages. Yet the jury awarded zero damages in each of these categories. EAA and Pardue present us with no record citations to evidence that in any way supports the jury’s zero damage findings for Lad’s non-economic damages, and we have found no such evidence.

Accordingly, we hold that the jury’s zero damage findings on Lad’s past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement are so against the great weight and preponderance of the evidence as to be manifestly unjust and shocking to the conscience. Moreover, in regard to Golden Eagle Archery, Inc., we note that because the jury awarded zero damages for every category of potentially overlapping non-economic damages claimed by Lad, there is no possibility that the jury elected to compensate Lad for his physical pain or mental anguish in any other category of non-economic damages. See 116 S.W.3d at 773-75.

We sustain the Doctors’ first issue. Having held that the evidence is factually insufficient to support the jury’s zero damage findings for Lad’s past and future physical pain and mental anguish, past and future physical impairment, and past and future disfigurement, we need not address the Doctors’ second, third, and fourth issues concerning the jury’s damage findings for Lad’s past and future medical expenses and Linda’s loss of consortium. See Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex.App.-Houston [1st Dist.] 1992, no writ) (indicating that case should be reversed and remanded for new trial if court finds that one of jury’s damage findings is against great weight and preponderance of evidence).

Conclusion

We reverse and remand this case for a new trial.

      . Tex. Civ. Prac. & RehI.Code Ann. §§ 84.001-.008 (Vernon Supp.2004-2005).

      . EAA previously filed a special appearance in this case objecting to personal jurisdiction in Texas. The trial court denied EAA’s special appearance. Our sister court affirmed the trial court’s denial of EAA’s special appearance, noting that "EAA has purposefully established sufficient contacts with Texas” to support the trial court's finding of general jurisdiction over EAA. Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 509 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

      . On appeal, the Doctors do not dispute the trial court’s application of Texas law on the issue of charitable immunity as to Pardue. Rather, they contend that, under the terms of the Act, Pardue was entitled to limited immunity rather than absolute immunity. Accordingly, we address the application of the Act to Pardue separately.

      . We recognize that, under the Act, qualifying charities are not absolutely immune, but we still treat the issue as one of "charitable immunity.” See Cox v. Thee Evergreen Church, 836 S.W.2d 167, 173 n. 10 (Tex.1992) (stating that in cases in which Act is applicable, charitable organizations can "effectively insulate themselves from liability” by maintaining statutorily required levels of insurance); see also Mason v. S. New England Conference Ass’n, 696 F.2d 135, 138 (1st Cir.1982); Edwards v. Our Lady of Lourdes Hosp., 217 N.J.Super. 448, 526 A.2d 242, 250 (1987) (describing statute limiting charity’s liability as providing "limited charitable immunity”).

      . A charitable organization is only entitled, to the protections afforded under the Act if the organization has liability insurance coverage in effect at the time of the act or omission in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury. Tex. Civ. Prac. & Rem.Code Ann. § 84.007(g) (Vernon Supp.2004-2005). - Thus, a charity that qualifies for protection under the Act cannot be held liable beyond its statutorily required insurance coverage.

      . Wisconsin does provide a more limited immunity for volunteers. See Wis. Stat. Ann. § 181.0670 (2002).

      . We note that if the Doctors shared EAA’s Wisconsin domicile, Wisconsin law would likely apply to the issue of charitable immunity, even if the forum of the suit was Texas. See Restatement (Second) of Conflict of Laws § 145 cmt. f (noting that if husband injures his wife in state other than state of couple’s domicile, state of couple's domicile is state of dominant interest on issue of whether spouse should be held immune from tort liability for conduct).

      . We also note that Texas courts will only refuse to enforce a foreign law which violates good morals, natural justice, or is prejudicial to the general interests of our citizens. Robertson v. Estate of McKnight, 609 S.W.2d 534, 537 (Tex.1980). While Texas has elected to provide charities and volunteers with certain protections under the Act, a policy which does not provide such protections does not violate good morals or natural justice. Moreover, we note that applying Wisconsin law, on these facts, will not in any way prejudice the general interests of Texas citizens.

      . See Butkera v. Hudson River Sloop "Clear-water”, Inc., 300 N.J.Super. 550, 693 A.2d 520, 522-23 (1997) (noting that policy of state without charitable immunity "is to ensure the accountability in tort of its domiciliarles for the consequences of their negligent conduct”).

      . Because of the lack of Texas authority on choice of law in the context of charitable immunity, the parties cite cases from other jurisdictions. See Gilbert v. Seton Hall Univ., 332 F.3d 105 (2d Cir.2003); Mason v. S. New England Conference Ass’n, 696 F.2d 135 (1st Cir.1982); Butkera, 300 N.J.Super. 550, 693 A.2d 520; Thomas v. Hanmer, 109 A.D.2d 80, 489 N.Y.S.2d 802 (1985); Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). We note that the results reached by these courts, like the results reached by any court conducting a choice of law analysis, are highly dependent upon the facts of the case and the policies of the relevant forums. However, we must note that EAA’s reliance on Seiderman v. Am. Inst. for Mental Studies, 667 F.Supp. 154 (D.N.J.), as persuasive authority, is misplaced. In Seiderman, a New Jersey resident was injured at a hospital located in New Jersey but incorporated in Pennsylvania. The hospital argued that the New Jersey charitable immunity law should apply. The court agreed, noting that the hospital conducted its activities in New Jersey, and that it could see no reason "why the accident of having been incorporated in Pennsylvania should affect [the hospital’s] immunity status with respect to charitable functions that it performed in New Jersey." Id. at 158 (emphasis added).

      . The Doctors have abandoned their argument that Wisconsin law should have applied on the issue of charitable immunity as to Pardue.

      . We note that the Doctors do not challenge the sufficiency of the evidence to support the jury's finding that Pardue qualified as a volunteer under the Act. The Doctors argue only that the evidence established that their injuries were proximately caused by any act or omission arising from the operation or use of an airplane. They agree that Pardue is entitled to the limited protection available under section 84.004(c), but assert that Pardue is not entitled to absolute immunity under section 84.004(b).

      . In their briefing and at argument, EAA contended that because the Texas Charitable Immunity and Liability Act was properly applied by the trial court, the Doctors recovered the maximum amount of damages available, and thus it was not necessary for this Court to reach the Doctors’ issues concerning the jury's damages findings.

      . The supreme court has noted that certain categories of non-economic damages may somewhat overlap. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770-71, 773-74 (Tex.2003). "Non-economic damages include compensation for pain, suffering, mental anguish, and disfigurement,” and may also include compensation for loss of enjoyment of life. Id. at 763.

      .“This standard of review gives due regard to a jury’s choice of whether and how to categorize and compensate for specific losses or injuries that could reasonably fall into more than one category of damages.” Golden Eagle Archery, Inc., 116 S.W.3d at 775. "It also advances the principles that a tort victim should be fully and fairly compensated, but that a double recovery should be avoided.” Id.

      . Unless the record demonstrates otherwise, we must presume that the jury followed these instructions. Golden Eagle Archery, Inc., 116 S.W.3d at 771.


source: Caselaw Access Project

author: Justice GARZA.

license: Public Domain

text:
    Felix CASTILLO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-458-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Oct. 6, 2005.
    Rehearing Overruled March 23, 2006.

      Joseph A. Connors, III, Victoria Guerra, McAllen, for appellant.
    Theodore C. Hake, Asst. Crim. Dist. Atty., Amy Howell Alaniz, Asst. Dist. Atty., Edinburg, for appellee.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   OPINION

Opinion by

Justice GARZA.

Felix Castillo, Jr. challenges his convictions for murder and attempted capital murder by 21 issues; however, his brief addresses only the following five issues: (1) appellant’s convictions are barred by the doctrine of double jeopardy; (2) appellant received ineffective assistance of counsel; (3) the trial court erred by failing to hold a hearing to determine whether appellant had knowingly waived an alleged conflict of interest resulting from his counsel’s brief dual representation of appellant and one of his co-defendants; (4) the trial court erred by admitting evidence of extraneous offenses because the State did not provide adequate notice of its intent to offer such evidence; and (5) the trial court erred by denying appellant’s oral request for severance of defendants and oral request for mistrial. To the extent appellant seeks to challenge his convictions based on any other issues, his brief fails to present anything for this Court to review, as it does not contain a clear and concise argument for the contentions made, together with appropriate citations to authorities and to the record. See Tex.R.App. P. 38.1(h). For the reasons that follow, we overrule appellant’s five issues and affirm the judgment of the trial court.

Background

Francisco “Frank” Sanchez was killed in a drive-by shooting on December 31, 2000. Rafael Almanza was shot in the same incident, but he survived. Appellant was charged by indictment with one count of murder for the killing of Sanchez and one count of attempted capital murder for trying to kill both Sanchez and Almanza. Appellant was tried jointly with two co-defendants: his wife Mary Socorro Avila Castillo (“Mary”), who was acquitted of the murder and attempted capital murder charges but convicted of tampering with evidence for disposing of the murder weapon, and Mary’s cousin, Javier Hernandez Reyes (“Javier”), who was acquitted of the murder and attempted capital murder charges. Appellant was convicted of murder and attempted capital murder, and this appeal ensued.

I. Double Jeopardy

In his first issue, appellant asserts that he has been punished twice for the murder of Frank Sanchez. Specifically, he argues that, because he was convicted and punished for Sanchez’s murder, the State should not have been able to use an attempt to murder Sanchez as part of the attempted capital murder charge. Although appellant failed to raise any double jeopardy objection before the trial court, see Tex.R.App. P. 33.1, a double jeopardy claim may be raised for the first time on appeal if (1) the undisputed facts show the double jeopardy violation is clearly apparent oh the face of the record and (2) enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).

The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: first, it protects against a second prosecution for the same offense after acquittal; second, it protects against a second prosecution for the same offense after conviction; and third, it protects against multiple punishments for the same offense. Lopez v. State, 108 S.W.3d 293, 295-96 (Tex.Crim.App.2003). Appellant has raised an issue relating to the “multiple punishments” aspect of the double jeopardy doctrine. The Fifth Amendment’s multiple punishments prohibition is violated if a defendant “is convicted of more offenses than the legislature intended.” Ex Parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App.1999) (citing Ball v. United States, 470 U.S. 856,105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)). The legislature is endowed with the power to establish and define criminal offenses. Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.Crim.App.1999). The Double Jeopardy Clause puts little, if any, limitation on this power. Id. In Blockburger, the United States Supreme Court stated, “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The court of criminal appeals has explained that, in the multiple punishments context, the Blockburger test is simply a rule of statutory construction, which is useful in attempting to ascertain legislative intent. Ervin, 991 S.W.2d at 807 (citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). The Blockburger test cannot negate a clearly expressed legislative intent to impose multiple punishments. Id. (citing Hunter, 459 U.S. at 368, 103 S.Ct. 673). The status of the Blockburger test as a “mere rule of statutory construction” raises an inverse conclusion as well: the Blockburger test cannot authorize two punishments where the legislature clearly intended only one. Id. And that status raises the possibility that there exist other rules of statutory construction that may be employed to help ascertain whether a legislature intended multiple punishments. Id. Other (nonexclusive) considerations relevant to determining whether the legislature intended multiple punishments are (1) whether the offenses are contained within the same statutory section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are named similarly, (4) whether the offenses have common punishment ranges, (5) whether the offenses have a common focus (i.e., whether the “gravamen” of the offenses is the same) and whether that common focus tends to indicate a single instance of conduct, (6) whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability that would result in the offenses being considered the same under Blockburger (i.e., a liberalized Blockburger standard utilizing imputed elements), and (7) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Id. at 814.

A. The Blockburger Test

Review of the statutory elements of the charged offenses shows that murder and attempted capital murder (based on an attempt to commit multiple murders) are not the same offense under the Blockburger test. Each offense requires proof of a fact which the other does not. See Block-burger, 284 U.S. at 304, 52 S.Ct. 180. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). A person commits the offense of attempted capital murder if he specifically intends to commit the offense of capital murder (here, the murder of more than one person during the same criminal transaction) and does an act amounting to more than mere preparation that tends but fails to effect the commission of capital murder. Tex. Penal Code Ann. §§ 15.01(a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp.2004-05). Each offense thus requires proof of a fact which the other does not: (1) murder requires the death of an individual and attempted capital murder does not, and (2) attempted capital murder requires an intent to kill more than one person and murder does not. The offenses are therefore different under the Blockburger test. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

B. Other Considerations

As explained above, in the context of multiple punishments, the Blockburger test is a “mere rule of statutory construction.” Ervin, 991 S.W.2d at 807. The ultimate inquiry is whether the legislature intended to permit multiple punishments. Id. at 814. To conduct this inquiry, we must consider not only the Blockburger test but also the other nonexclusive factors enumerated by the court of criminal appeals in Ervin. See id. at 814. In this case, these factors militate against a conclusion that the charged offenses are the same for double jeopardy purposes: (1) the statutory provisions for each offense are not located in the same section, see Tex. Penal Code Ann. §§ 15.01(a), 19.02(b)(1), 19.03(a)(7)(A); (2) the offenses are not phrased in the alternative; (3) they are similarly named only in that the titles of both offenses include the term “murder”; (4) they do not necessarily have the same punishment range; (5) the offenses do not have a common focus tending to indicate a single instance of conduct because the gravamen of murder is the intentional Rilling of a person, whereas the focus of attempted capital murder is the intentional attempt to kill more than one person; (6) the offenses are not the same under Blockburger; and (7) we are unaware of any legislative history containing an articulation of an intent to treat the offenses as the same or different offenses for double jeopardy purposes.

Based on these considerations, we conclude that the charged offenses are not the same for the purpose of double jeopardy. Accordingly, appellant’s first issue is overruled.

II. Ineffective Assistance of Counsel

In his second issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to withdraw from representing appellant after discovering that he had a conflict of interest, (2) failed to file a motion for severance of defendants on behalf of appellant, (3) failed to file a motion for new trial, and (4) abandoned appellant prior to the deadline for filing a motion for new trial.

We apply a two-prong test to determine whether representation was so inadequate that it violated the Sixth Amendment right to counsel. Munoz v. State, 24 S.W.3d 427, 433 (Tex.App.-Corpus Christi 2000, no pet.) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex.Crim.App.1986)). First, trial counsel’s performance must fall below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687-88,104 S.Ct. 2052). Second, appellant must prove, by a reasonable probability, that counsel’s deficient performance prejudiced the defense; that, but for counsel’s errors, the result of the proceeding would have been different. See id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 433-34 (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052). Appellant must overcome a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. at 434 (citing Thompson v. State, 9 S.W.3d 808, 812-14 (Tex.Crim.App.1999); Tijerina v. State, 921 S.W.2d 287, 289 (Tex.App.-Corpus Christi 1996, no pet.)).

A. Conflict of Interest

In his first sub-issue, appellant contends that his attorney, Jesus “Jesse” Contreras, rendered ineffective assistance of counsel by failing to withdraw from representing appellant after he discovered a conflict of interest. The alleged conflict arose from counsel’s dual representation of appellant and appellant’s wife, Mary. In order to address this contention, we must review the circumstances of counsel’s dual representation.

1. Relevant Facts

Appellant was arrested on April 20, 2001 and requested court-appointed counsel on April 27, 2001. The trial court initially appointed attorney John Rivera, who “returned it in June.” The court then appointed attorney Rogelio Garza on June 21, 2001. Appellant was indicted on August 2, 2001. Attorney Jesse Contreras was then retained to represent appellant and appeared for the first time on appellant’s behalf on August 7, 2001.

Meanwhile, Mary was also indicted on August 2, 2001, but the indictment was only for tampering with evidence. The court appointed attorney Lydia Reed to represent Mary. Jesse Contreras first appeared on Mary’s behalf on August 28, 2001. On February 14, 2002, Mary was additionally indicted for the murder of Sanchez and attempted capital murder for trying to kill both Sanchez and Almanza. On February 19, 2002, Contreras appeared with Mary as she was arraigned on the new charges; the court “appointed” Contreras to represent Mary on those charges. j

The attorneys learned on February 21, 2002 that the trial court wanted to try all three defendants together. On March 21, 2002, a bench conference was held off the record.' Shortly thereafter, on March 25, 2002, the court appointed attorney O. Rene Flores to represent Mary. Flores filed a motion to substitute on April 3, 2002. He filed a formal appearance and a designation of attorney-in-charge on April 9, 2002.

The sequence of representation was clarified at a pretrial hearing held on May 16, 2002. At the hearing, Contreras stated that he had previously informed the court of a potential conflict of interest due to his representation of appellant and appellant’s wife, Mary. All parties agreed that Contreras had given the court such notice and that, as a result, the court had appointed Flores to represent Mary. Mary was sworn in and testified that she had retained Contreras to represent her on the tampering charge and an unrelated burglary charge. She agreed that a conflict of interest had arisen when she was indicted on the murder and attempted capital murder charges because Contreras was already representing her husband against those same charges. Flores stated that he had opened his file on Mary’s case on March 25, 2002. Flores then moved to withdraw from representing Mary because he had previously represented a person listed on the State’s witness list. Mary testified that she wanted Flores to continue as her attorney. The court denied the motion to withdraw, and Flores represented Mary throughout the trial.

In sum, the record shows that Contreras represented appellant from August 2, 2001, shortly after his indictment, until August 20, 2002, when appellant had been convicted and appellate counsel was appointed to represent him. The record shows that Contreras also represented Mary on the murder and attempted murder charges for approximately 34 days, from February 19,, 2002 until March 25, 2002. Appellant asserts that the short period of dual representation amounted to ineffective assistance of counsel; however, he has not met his burdens of showing that his trial counsel had an actual conflict of interest and that the conflict actually affected his counsel’s performance.

2. Analysis

Ineffective assistance of counsel may result when an attorney labors under a conflict of interest. Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997) (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). A defendant can demonstrate a violation of his right to the reasonably effective assistance of counsel if he can show (1) that his counsel was burdened by an actual conflict of intérest and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). An “actual conflict of interest” exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his chent’s interest. Id. Thus, an actual conflict of interest exists when one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing. James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App.1989); see also Routier v. State, 112 S.W.3d 554, 584 (Tex.Crim.App.2003).

Appellant has failed to identify any actual conflict of interest. Counsel’s dual representation ceased some two months before trial commenced. Furthermore, the record does not show that appellant and his wife had divergent interests or ever advanced inconsistent defensive theories. Mary stated that she was with her family on December 31, 2000, the night of the murder. She also stated that appellant was at his home sleeping that night and that he later joined her at her parents’ home for the rest of the evening. Appellant never gave a statement to police and did not testify at trial. Because we cannot discern how the defensive theories of appellant and Mary diverged, we cannot conclude that counsel ever faced a choice of advancing either defendant’s interests to the detriment of the other. Likewise, we cannot conclude that any conflict had an adverse effect on specific instances of counsel’s performance. See Hurley v. State, 606 S.W.2d 887, 890 (Tex.Crim.App.1980) (“[A] common defense often gives strength against a common attack.”).

Appellant faults his trial counsel for failing to file a motion to sever defendants on his behalf and for failing to object to the admission of Mary’s and Javier’s statements into evidence at trial. There is no evidence in the record that any action taken or not taken by counsel was due to any conflict of interest, and appellant has failed to establish any connection between these instances of counsel’s performance and any conflict of interest. Accordingly, we will not sustain appellant’s ineffectiveness claim based on his first sub-issue.

B. Failure to Obtain Severance of Defendants

In his second sub-issue, appellant contends that counsel was ineffective because he did not file a motion to sever defendants on behalf of appellant.

1. Relevant Facts

The clerk’s record shows that no written motion to sever defendants was filed on behalf of appellant; however, at least three motions to sever defendants were filed on behalf of Mary. The defendants were first notified on February 21, 2002 that the trial court had decided to consolidate their cases for trial. At a pretrial hearing on May 16, 2002, Javier’s counsel opposed severance of defendants, telling the court, “[M]y understanding is that ... [all three co-defendants] will contend that they were not at all at the scene of the shooting on. the date of the incident.” Appellant’s counsel disputed this, stating that Javier had given a statement that appellant was responsible and that Mary and appellant had implicated Javier. The prosecutor stated that he opposed the severance because the defendants

were all claiming they were somewhere else when this alleged offense took place. Their defenses are not inconsistent with each other. They are consistent with each other. They are just saying, we weren’t there, we didn’t do it. Each defendant has taken that position, I wasn’t there I didn’t do it, I was somewhere else. And so it’s our position that these cases should be tried at the same time.

None of the parties introduced the co-defendants’ statements or otherwise adduced any evidence of prejudice. The trial court denied the motion for severance of defendants. On May 22, 2002, the trial court denied Mary’s motion to reconsider severance of defendants.

Mary’s counsel re-urged her motion to sever defendants at trial. After the lead investigator had testified about Mary’s statements to him, both Mary’s statement and Javier’s statement were introduced with no objection from appellant or his co-defendants. The State then passed the witness. Javier’s counsel then cross-examined the investigator. During the cross-examination, both Mary and appellant objected to a question about Mary’s testimony at a pretrial hearing, which was given solely for the purpose of determining whether her statement to police was voluntary. At this time, Mary’s counsel re-urged the motion to sever “because it has become’very obvious there is antagonism between the defendants.” The court denied the motion “because the statement has already come into evidence.” Appellant’s counsel moved for a mistrial because “it’s become apparent that at least one of the defendants is against the other defendants.” The court denied the motion “as being premature at this time.” Mary’s counsel asserted that “it’s obviously prejudicial for one client to implicate the other in trial, and that’s the situation we have had here and we have had at the beginning.” The court denied her motion for mistrial.

2. Analysis

In his second sub-issue, appellant contends that his trial counsel was ineffective because he did not file a motion to sever defendants on behalf of appellant. Even assuming, arguendo, that counsel’s performance was deficient, as appellant contends, appellant has failed to establish by a reasonable probability that the result of the proceeding would have been different but for counsel’s deficient performance. See Munoz, 24 S.W.3d at 433. As the State argues, appellant has not demonstrated how being tried separately would have affected the ultimate outcome of the proceedings.. Appellant seems to suggest that Javier would not have testified in a severed trial, but we have no assurance that would have been the case. Furthermore, several other witnesses corroborated Javier’s account, including Arnulfo Hinojo-sa, Jr., Eddie Villaneuva, and Hope Caser-as. We have no basis for concluding that these witnesses would not have testified in a severed trial, if appellant had been granted one.

The record also shows that appellant had no real alibi other than the testimony of his relatives that he was either sleeping at his house or with them at the time of the shooting. Appellant did not testify at trial. Javier, in contrast, made two statements to police that corroborated his trial testimony' that he was at a party with many other people when the shooting occurred and that appellant later boasted about doing the shooting. Three other witnesses and a photograph also corroborated Javier’s presence at the party, and one of the witnesses also corroborated appellant’s admissions that he did the shooting. We have no basis for concluding that the evidence would have been different in a separate trial.

Because no prejudice has been shown, we cannot sustain appellant’s ineffectiveness claim based on his second sub-issue.

C. Failure to File a Motion for New Trial

In his third sub-issue, appellant contends that his trial counsel rendered ineffective assistance by failing to file a motion for new trial.

1. Relevant Facts

Appellant was sentenced on June 12, 2002. On June 19, 2002, counsel for appellant filed a motion to withdraw, which the trial court never granted. Counsel filed a notice of appeal on appellant’s behalf. On June 27, 2002, counsel for appellant filed a motion for “a court-appointed appeals attorney to be substituted as counsel of record for defendant on the Notice of Appeal.” A “Motion to Appoint Appellate Counsel” signed by appellant himself was also filed on June 27, 2002. In that motion, appellant indicated his desire to appeal his convictions, asked the court “to take judicial notice of his indigency,” and stated that a notice of appeal had already been filed. Appellant did not express any interest in filing a motion for new trial, and no motion for new trial was ever filed. The trial court appointed appellate counsel on August 20, 2002.

2. Analysis

Whether a defendant is entitled to effective assistance of counsel during the time limit for the filing of a motion for new trial has not been definitively decided by the court of criminal appeals. Smith v. State, 17 S.W.3d 660, 663 n. 3 (Tex.Crim.App.2000). Several courts of appeals have held that effective assistance is required in this period. Barnett v. State, 76 S.W.3d 739, 741 (Tex.App.-Waco 2002, pet. ref'd); Prudhomme v. State, 28 S.W.3d 114, 119 (Tex.App.-Texarkana 2000, no pet.); Hanson v. State, 11 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Massingill v. State, 8 S.W.3d 733, 736 (Tex.App.-Austin 1999, pet. ref'd); Burnett v. State, 959 S.W.2d 652, 656 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Because the State does not dispute appellant’s contention that effective assistance is required during the time limit for filing a motion for new trial, we assume, without deciding, that effective assistance is required. See Smith, 17 S.W.3d at 663 n. 3 (“We are not asked to decide this issue today and will not do so_”).

When a motion for new trial is not filed in a case, there is a rebuttable presumption that it was considered by the appellant and rejected. Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.1998). In this case, there is no evidence to rebut the presumption that counsel adequately informed appellant of his right to file a motion for new trial and that appellant rejected the option. There is no evidence to show that appellant was interested in filing a motion for new trial or that counsel did not adequately assist him in doing so. See Hudson v. State, 128 S.W.3d 367, 381 (Tex.App.-Texarkana 2004, no pet.) (“There is no evidence in the record that Hudson was interested in the option of filing a motion for new trial and that counsel did not adequately assist him in doing so. Therefore, nothing in the record exists to rebut the presumption that Hudson was adequately informed of his right to file a motion for new trial and that he ultimately rejected the option.”) (citation omitted).

We cannot sustain appellant’s ineffectiveness claim based on his third sub-issue.

D. Abandonment of Appellant During Time Limit to File Motion for New Trial

In his fourth sub-issue, appellant argues that his trial counsel abandoned him prior to the deadline for filing a motion for new trial. This contention duplicates, for the most part, appellant’s third sub-issue. Although trial counsel twice requested to be removed from the case, his requests were not granted until the trial court appointed appellate counsel on August 20, 2002 and implicitly discharged trial counsel. Prior to the appointment of appellate counsel, trial counsel protected appellant’s right to appeal by timely filing a notice of appeal on his behalf. Appellant seems to argue that trial counsel abandoned him because he did not file a motion for new trial, but as we noted above, there is no indication in the record that appellant was interested in filing a motion for new trial or that trial counsel failed to advise and assist appellant regarding a motion for new trial. For these reasons, we cannot sustain appellant’s ineffectiveness claim based on his fourth sub-issue.

Having reviewed appellant’s four sub-issues, we conclude that appellant’s ineffectiveness claim is without merit. It is therefore overruled.

III. Conflict of Interest

In a third issue, appellant seems to contend that the trial court erred by failing to hold' a hearing to determine whether appellant had knowingly waived an alleged conflict of interest resulting from his counsel’s brief dual representation of appellant and his co-defendant wife, Mary. As stated above, attorney Jesse Contreras informed the trial court of a potential conflict of interest more than two months before trial. In response to this concern, the trial court appointed separate counsel to represent Mary. After new counsel, was appointed to represent Mary, no objections or concerns were raised of a potential conflict of interest arising from continued representation of appellant by Contreras. Appellant now contends that the trial court erred by failing to hold, on its own motion, a hearing to determine whether appellant had knowingly waived any potential conflict of interest.

We have already addressed the conflict-of-interest issue as part of appellant’s ineffectiveness claim, which is the same approach taken by the court of criminal appeals in cases in which error is argued based on the trial court’s failure to hold a hearing to investigate an apparent conflict. See, e.g., Routier, 112 S.W.3d at 581-86. In doing so, we concluded that appellant has failed to identify any actual conflict of interest. Appellant’s third issue largely duplicates the contentions of his ineffectiveness claim as it relates to counsel’s alleged conflict of interest. The only twist to appellant’s third issue is that he now suggests that the trial court had an obligation to hold a hearing for the purpose of allowing appellant to waive the conflict of interest on the record. Based on our conclusion that no actual conflict of interest has been identified, we now conclude that appellant’s third issue presents no additional basis for reversing the trial court’s judgment, Accordingly, for the reasons stated in the relevant part of our disposition of appellant’s ineffectiveness claim, we overrule appellant’s third issue.

IY. Notice of Intent to Introduce Extraneous Offenses

In his fourth issue, appellant contends that the trial court erred by admitting evidence of extraneous offenses because the State did not provide notice of its intent to offer such evidence. Rule 404(b) provides that evidence of “other crimes, wrongs, or acts” may be admissible for certain purposes “provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising from the same transaction.” Tex.R. Evid. 404(b).

A. Relevant Facts

The record shows that appellant filed a request for notice of the State’s intent to use extraneous offenses on August 21, 2001, less than a month after appellant was indicted. On appeal, appellant states, “No written document of record establishes the State’s compliance with [appellant’s] request.” This statement is false. The record contains the State’s written notice of intent to introduce extraneous offenses during its case-in-chief and as impeachment evidence. Specifically, the State informed appellant that it intended to introduce the following testimony:

Roxanna Palacios will testify that sometime around November 2000, she saw Felix Castillo go to his house and bring out a semi automatic pistol under his waist under his shirt.
Gregorio Granados & Crystal Granados will testify that on 12/31/00 Felix Castillo had a pistol on his person and pointed the pistol at Gregorio.

The certificate of service shows that the notice was faxed to trial counsel’s office on Friday, May 17, 2002, three days before trial commenced. At trial, counsel admitted that he received the notice on May 17, 2002. Nevertheless, on Monday, May 20, 2002, the first day of trial, counsel objected to the adequacy of the State’s notice. On May 29, 2002, just before Roxanna Palac-ios testified, counsel renewed his objection. The trial court instructed the State to refrain from “going into any testimony regarding the extraneous offense.”

Roxanna Palacios was called by the State, and no questions regarding the extraneous offense were asked on direct examination. Counsel for Javier then cross-examined Roxanna. Counsel for appellant again objected to the introduction of evidence regarding the extraneous offense, arguing that the State’s notice was untimely. This time the trial court overruled counsel’s objection and allowed Roxanna to testify about the extraneous offense. Rox-anna testified that, several months before the New Year’s Eve shooting, Frank Sanchez (the deceased) spoke to appellant’s girlfriend in front of appellant. Appellant ran into his house, and when he returned, he pulled out a handgun from under his shirt and fired it into the ground.

When the State called Crystal Granados to testify, counsel for appellant re-asserted his objection to the timeliness of the State’s notice. The trial court did not expressly overrule this objection, but Crystal was allowed to testify that she saw appellant point a handgun at her husband, Gregorio, on the same night the fatal shooting occurred.

The State then called Gregorio to testify. Again, counsel for appellant objected to the timeliness of the State’s notice. The objection was overruled, and Gregorio testified that appellant pointed a gun at him on the night of the fatal shooting.

B. Analysis

As preliminary matter, we note that Roxanna’s extraneous-offense testimony was introduced during cross-examination by Javier’s counsel, not during the State’s case-in-chief. The State argues that the notice provision of rule 402(b) therefore does not apply. Because it makes little, if any, difference to the outcome of this case, we assume, without deciding, that rule 402(b) applies and decide whether the trial court erred by overruling appellant’s objections to the timeliness of the State’s notice.

The ultimate issue is whether the State’s notice was “reasonable.” See id.; Hayden v. State, 66 S.W.3d 269, 272 (Tex.Crim.App.2001) (“The rule requires ‘reasonable’ notice.”). The determination of reasonableness of the notice is committed to the sound discretion of the court. Scott v. State, 57 S.W.3d 476, 481 (Tex.App.-Waco 2001, pet. ref'd); Sebalt v. State, 28 S.W.3d 819, 822 (Tex.App.-Corpus Christi 2000, no pet.). A determination that is within the zone of reasonable disagreement does not constitute an abuse of discretion. Sebalt, 28 S.W.3d at 822. In the absence of reasonable notice, a trial court’s decision to admit evidence of an extraneous offense constitutes an abuse of discretion. Scott, 57 S.W.3d at 481.

In Sebalt, this Court recognized that there is no authority to support the proposition that notice given the Friday prior to a Monday trial is per se unreasonable. Sebalt, 28 S.W.3d at 821-22. Instead, the reasonableness of the notice is determined by all of the facts and circumstances of the case. Id. at 822. The reasonableness of the notice must also be determined by reference to the purpose of the rule: to eliminate the unfair prejudice that can result from the surprise introduction of extraneous offense evidence at trial. Webb v. State, 36 S.W.3d 164, 178 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on reh’g).

In this case, no testimony of extraneous offenses was offered until 12 days after counsel received notice from the State. In our estimation, this was not a “surprise introduction.” The trial court could have found that the State’s notice was reasonable, and even if we were to disagree, appellant has failed to show that the ruling fell outside the zone of reasonable disagreement. Accordingly, appellant’s fourth issue is overruled.

V. Denial of Motion to Sever and Motion for Mistrial

In his fifth issue, appellant argues that the trial court erred by denying his pretrial oral request for severance of defendants and by denying his request for a mistrial. The facts relevant to this issue were stated in Part II B of this opinion, regarding the second sub-issue of appellant’s ineffectiveness claim.

A. Pretrial Motion to Sever

In his first sub-issue, appellant contends that the trial court erred by denying his pre-trial request to sever defendants. Article 36.09 provides as follows:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases" in which, upon timely motion'to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

Tex.Code Cezm. Proc. Ann. art. 36.09 (Vernon 1981). Accordingly, severance is not a matter of right but rests within the sound discretion of the trial court unless (1) there is a previous admissible conviction against one defendant or (2) a joint trial would, as a matter of law, prejudice a co-defendant. Aguilar v. State, 39 S.W.3d 700, 702 (Tex.App.-Corpus Christi 2001, pet. ref'd) (citing Garza v. State, 622 S.W.2d 85, 91 (Tex.Crim.App.1980)); Smith v. State, 998 S.W.2d 683, 686 (Tex.App.-Corpus Christi 1999, pet. ref'd). Absent evidence of prejudice to one defendant in a joint trial, or evidence that one, of the defendants has a prior admissible conviction, a motion for-severance is left to the trial court’s discretion. Mendoza v. State, 61 S.W.3d 498, 501 (Tex.App.-San Antonio 2001), aff'd, 88 S.W.3d 236 (Tex.Crim.App.2002).

In this case, appellant asked the trial court to sever defendants because a joint trial would be prejudicial, but neither appellant’s counsel nor counsel for his co-defendants produced any evidence of prejudice at the pretrial hearing on the motion to sever defendants. Although the co-defendants made various allegations of prejudice through their counsel, statements by counsel that are not made under oath do not constitute evidence. Rodriguez v. State, 903 S.W.2d 405, 412 (Tex.App.-Texarkana 1995, no pet.) (citing Delgado v. State, 544 S.W.2d 929 (Tex.Crim.App.1977)). Therefore, the trial court did not err by denying the motion. See Silva v. State, 933 S.W.2d 715, 719 (Tex.App.-San Antonio 1996, no pet.) (citing Ransonette v. State, 550 S.W.2d 36, 41 (Tex.Crim.App.1976)).

B. Motion for Mistrial

In his second sub-issue, appellant contends that the trial court erred by denying his oral motion for mistrial, which argued that “it’s become apparent that at least one of the defendants is against the other defendants.” Although counsel’s request was plainly for a mistrial, it followed an oral motion by Mary’s counsel to sever defendants. The motion to sever defendants argued that it “has become very obvious there is antagonism between the defendants.” The trial court denied the motion, and counsel for appellant subsequently moved for a mistrial. Given that the motion to sever and the motion for mistrial were urged on the same basis, we understand appellant’s second sub-issue to challenge the trial court’s refusal to sever defendants during trial.

A motion to sever on the grounds of unfair prejudice is “timely” if made at the first opportunity or as soon as the grounds for prejudice become apparent or should have become apparent, thus providing the trial court an opportunity to rule on the potentially prejudicial evidence at the time it is introduced. Aguilar v. State, 26 S.W.3d 901 (Tex.Crim.App.2000). In this case, the grounds for prejudice should have become apparent to counsel before trial. The prejudicial evidence was Javier’s statement to police, in which Javier stated that he was at a party when the drive-by shooting occurred, that appellant picked him up at the party in a white truck, and that appellant later bragged about doing the shooting. There was also a letter from Javier to Deputy Jasso in which Javier related essentially the same story. At the pretrial hearing on the motion to sever, counsel for appellant indicated that he was aware of the contents of Javier’s police statement but made no effort to produce it to the court for review. See id. at 905 (“In seeking a severance, evidence which a co-defendant can present prior to trial should be presented before trial.”) (emphasis in original). Subsequently, at trial, Javier’s police statement was admitted without objection from appellant or his co-defendants. Given these circumstances, we cannot conclude that counsel’s motion to sever defendants during trial was timely. Accordingly, the trial court did not err by denying the motion.

Appellant’s fifth issue is overruled.

VI. Conclusion

For the foregoing reasons, appellant’s issues on appeal are overruled and the judgment of the trial court is affirmed.

      . Murder is either a first or second degree felony, depending on whether a finding of sudden passion is made. Tex. Penal Code Ann. § 19.02(c) (Vernon 2003). Because criminal attempt is one degree lower than the underly-tag offense, attempted capital murder is a first degree felony. Tex. Penal Code Ann. §§ 15.01(d) (Vernon 2003), 19.03(b) (Vernon Supp.2004-05).

      . Mary later testified that Contreras had actually been retained.