author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    Raymond Edward OLIVAS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-02-00308-CR to 10-02-00310-CR.
    Court of Appeals of Texas, Waco.
    Nov. 10, 2004.

      Stephen A. Gustitis, Waco, for appellant.
    Bill R. Turner, Brazos County District Attorney, Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Raymond Olivas was indicted in four separate cases with evading arrest and in a fifth case for aggravated assault and stalking. Tex. Pen.Code Ann. §§ 22.02, 38.04, 42.072 (Vernon 2003). The five cases were tried together and a jury returned a verdict of guilty in each case. Today, we affirm one evading arrest conviction, a state jail felony (Cause Number 10-02-00312-CR), reverse and render a judgment of acquittal on the aggravated assault (retaliation) count and affirm the judgment on the stalking count (Cause Number 10-02-00311-CR), and reverse the remaining three judgments and remand the causes for a new trial (these cases).

Olivas was found guilty of evading arrest. Tex. Pen.Code Ann. § 38.04 (Vernon 2003). Under section 38.04(a) of the Penal Code, evading arrest is a Class B misdemeanor. Id. § 38.04(a). If the offense is committed using a vehicle, it becomes a state jail felony under section 38.04(b). Id. § 38.04(b). A state jail felony is punishable by confinement in a state jail for no more than two years and by a fine up to $10,000. Id. § 12.35 (Vernon 2003). However, section 12.35 provides that a state jail felony shall be punished as a third degree felony if it is shown on the trial of the offense that a deadly weapon was used or exhibited during the commission of the offense or dining immediate flight following the commission of the offense. Id. Three of the evading arrest verdicts contain findings that a deadly weapon was used; those are the subject of these appeals.

OLIVAS’S ISSUES

Olivas’s primary issues are'whether the evidence of identity is legally and factually sufficient to sustain the conviction.

STANDARD OF REVIEW

We review the legal sufficiency of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). A legal sufficiency review considers “all of the evidence” which the jury was permitted to consider. Id. (“all of the evidence is to be considered in the light most favorable to the prosecution”) (italics in original); Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004) (“an appellate court must consider all evidence actually admitted at trial in its sufficiency review and give it whatever weight and probative value it could rationally convey to a jury”) (italics in original). The judgment may not be reversed unless the finding of guilt is irrational or unsupported by proof beyond a reasonable doubt. Henley v. State, 98 S.W.3d 732, 735 (Tex.App.-Waco 2003, pet. ref'd).

We review factual sufficiency by examining all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting, the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. Evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. That is, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under the beyond-a-reasonable-doubt standard. Id.

We must also remain cognizant of the factfinders role and unique position — one that the reviewing court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000). The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App,1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App.2001). The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App.1997).

APPLICATION

The offenses were alleged to have occurred on (1) November 27, 2001, by evading Officer John Agnew (#308), (2) December 24, 2001, by evading Officer Wiesepape (# 309), and December 21, 2001, by evading Officer Hancock (# 310). In each of the cases, the identity of the person who evaded arrest was not proven by direct evidence. None of the officers identified Olivas in court as the driver of the vehicle in the evasions.

Olivas argues that the evidence is legally insufficient because the officers could not identify him. As to any one evasion standing alone, we might agree; however, the combined evidence of all of the incidents is such that the jury could infer from the totality of the evidence that Olivas was the actor in each instance. Identity can be proven by inferences. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003); Roberson v. State, 16 S.W.3d 156, 157 (Tex.App.-Austin 2000, pet. ref'd). Each of the incidents had a common feature: the actor was driving a beige Pontiac with license plate TLS-33X. Olivas’s mother had such a car, and Kim Tunnell (the victim in the stalking charge) testified that she saw Olivas following her in a tan Pontiac that she recognized as his mother’s car.

The answer lies in the standards of review. The legal sufficiency standard of review gives full play to the jury’s responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence. Bellard v. State, 101 S.W.3d 594, 596 (Tex.App.-Waco 2003, pet. ref'd). Viewing all of the evidence in the light most favorable to the verdict, as we must, we find the jury acted rationally when it found that Olivas was the person who evaded arrest in each of the three instances. Henley, 98 S.W.3d at 735. Viewing all of the evidence in a neutral light, we find that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85.

FUNDAMENTAL CHARGE ERROR

Our examination of the entire record convinces us that we must reverse the judgment in each case because of a fundamental error in the way the jury was charged. We acknowledge that Olivas did not object to this portion of the charge and has not raised the issue on appeal and we are mindful of the admonishment in Hailey v. State, cautioning against reversal based on unpreserved complaints of error at trial that violate “ordinary notions of procedural default.” Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002). For reasons we will state, review of the fundamental charge error in these three cases does not violate the rules about procedural default.

authority to review

It has long been settled that no assignment of error on appeal is required in a criminal case. Carter v. State, 656 S.W.2d 468, 468 (Tex.Crim.App.1983) (State’s position that court of appeals “has no jurisdiction to entertain unassigned error regardless of the fundamental nature of the error in question” is untenable.); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990) (“The State’s contention that the Court of Appeals erred by addressing unassigned error is overruled.”). “There is a fundamental proposition pertaining to appellate functions of the Judicial Department: A constitutional grant of appellate jurisdiction treats a right of appeal in criminal cases ‘as a remedy to revise the whole case upon the law and facts, as exhibited in the record,....’” Carter, 656 S.W.2d at 468 (citing The Republic v. Smith, Dallam, 407, 1841 WL 3098 (Tex.)). Thus, once jurisdiction of an appellate court is invoked, exercise of its reviewing functions is limited only by its own discretion or a valid restrictive statute. Id. at 469; see also Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App.1986). The Texas Constitution and the statutes provide “a broad scope of review and revision ... that is still recognized, acknowledged and confirmed by the Legislature.” See Carter, 656 S.W.2d at 469; Tex.Code Crim. Proc. Ann. art. 44.25 (Vernon Supp. 2004); see also Goodman v. State, 935 S.W.2d 184, 186 (Tex.App.-Austin 1996, no pet.) (“We conclude that the ex post facto violation that occurred in this instance was an unassigned fundamental error.”).

It is further well settled that we also have the authority to review un-preserved fundamental charge error. In Saldano v. State, the Court of Criminal Appeals observed:

The courts of every jurisdiction in this country have some doctrine that permits appellate courts to consider claims that such fundamental rights were violated without objection. [Footnote omitted.] In the criminal law of this state, such errors are called “fundamental.”
One such class of fundamental errors has been recognized by the legislature. A statute permits our appellate courts to consider claims that an error in the court’s charge to the jury, to which no objection Was made, was so grave as to deny a defendant a fair trial.

Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002) (citing article 36.19 of the Code of Criminal Procedure and Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)). With most charge errors, whether an objection to the charge was made at trial affects the standard for determining whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994).

This is similar to the federal “plain error” doctrine. See Blue v. State, 41 S.W.3d 129, 133 (Tex.Crim.App.2000) (fundamental error of constitutional dimension requires no objection).

A prior review by this court of this type of charge error was specifically approved by the Court of Criminal Appeals. During the period in our state’s jurisprudence when a definitional instruction on reasonable doubt was required in every charge we decided in Kieschnick v. State that an unpreserved error in omitting the instruction from the charge was fatal to the conviction. Kieschnick v. State, 911 S.W.2d 156, 161 (Tex.App.-Waco 1995) (op’n on reh’g) (“Kieschnick did not object to the charge in the trial court or raise the court’s use of an erroneous charge as a point of error in his brief. Nevertheless, we conclude that we have no choice but to reverse the judgment and remand the cause for another trial.”). Our decision was approved by the Court of Criminal Appeals in Reyes v. State, 938 S.W.2d 718, 720-21 (Tex.Crim.App.1996) (“[W]e hold Geesa [u State ] created an absolute systemic requirement that an instruction on reasonable doubt be submitted to the jury in all cases where the burden of proof requires the jury to find guilt beyond a reasonable doubt and the failure to submit such an instruction is automatic reversible error.”), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000). In Kieschnick, the error was failing to include the definition of reasonable doubt; here the error is failing properly place the burden of proof and to require that the jury find use of a deadly weapon beyond a reasonable doubt.

THE COURT’S CHARGE

In each of these three cases, the court charged the jury at the guilt-innocence phase on the deadly weapon issue by asking an extra question on the verdict form after the jury had determined whether Olivas had evaded arrest using a vehicle:

Answer the Deadly Weapon Question only if you have found the defendant guilty. Otherwise do not answer the Deadly Weapon Question.
DEADLY WEAPON
WE, THE JURY, find the defendant, RAYMOND OLIVAS, did use a deadly weapon during the commission of the offense alleged in the indictment.
PRESIDING JUROR
WE, THE JURY, find that the defendant, RAYMOND OLIVAS, did not use a deadly weapon during the commission of the offense alleged in the indictment.
PRESIDING JUROR

In each, the jury found that Olivas “did use” a deadly weapon. We believe that this submission of the Deadly Weapon question was erroneous for three reasons.

Burden of Proof

First, the court did not properly place the burden of proof regarding the deadly weapon issue on the State. The form of the submission renders it unclear who had the burden of proof on the issue and suggests both that the State had the burden to prove use and that Olivas had the burden to disprove use of a deadly weapon.

The prosecution bears the burden of proving all elements of an offense and must persuade the factfinder beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). The use or exhibition of a deadly weapon is not an element of the state jail felony of evasion, but the State is required to prove such use when, as here, it wants to increase the punishment beyond the statutory maximum for a state jail felony. The Supreme Court has said that a sentencing enhancement that increases punishment beyond the maximum statutory sentence “is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 2365 n. 19, 147 L.Ed.2d 435 (2000). Thus, a charge allowing a finding of use of a deadly weapon to enhance the offense to a third degree felony under section 12.35 must properly place the burden of proof on the State as part of the law applicable to the case. This charge did not.

Quantum of Proof

Second, the charge did not require that the jury make the finding that Olivas used a deadly weapon “beyond a reasonable doubt.” The trial court gave a reasonable doubt instruction only in the main body of the charge regarding the elements of the state jail felony of evading a peace officer by fleeing in a vehicle. Thus, an Apprendi violation occurred.

Any fact (other than prior conviction) that increases the maximum penalty for a crime beyond the prescribed statutory maximum must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. See Apprendi 530 U.S. at 476-77, 120 S.Ct. at 2355-56. (“At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without ‘due process of law,’ Arndt. 14, and the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,’ Arndt. 6. Taken together, these rights indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ”). The statutory maximum for Apprendi purposes is not the maximum sentence that may be imposed after finding additional facts, but the maximum that may be imposed without any additional findings. See Blakely v. Washington, — U.S. -, -, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). The statutory maximum for the state jail felony of evading arrest using a vehicle is two years’ confinement and a fine of up to $10,000. In each case, Olivas was sentenced for a third degree felony on the basis of a finding that, although made by the jury, was’ not made beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363 (“It is equally clear that such facts must be established by proof beyond a reasonable doubt.”).

WHEN TO submit THE DEADLY WEAPON ISSUE UNDER SECTION 12.35

Third, a question that appears unanswered is: when should the court charge the jury on the deadly weapon issue under section 12.35? Tex. Pen.Code Ann. § 12.35.

Section 12.35 is a punishment statute, and its plain language requires that the defendant has been “adjudged guilty of a state jail felony.” Id. Punishment is then for a third degree felony if it is shown that the defendant used or exhibited a deadly weapon. Id. As we have noted, in each case the Deadly Weapon issue was presented to the jury at the guilt-innocence stage of trial. Then, at the punishment stage, the jury was instructed that their findings on guilt-innocence rendered the offense a third degree felony and was asked to determine punishment within the range of not less than two years or more than ten years in prison and a fine of up to $10,000.

Case law does not provide much guidance on the issue. The’ Court of Criminal Appeals has said that a deadly weapon finding, for the purposes of precluding community supervision under article 42.12 section 3(g) of the Code of Criminal Procedure, may be made at either the guilt-innocence or punishment stage. See Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App.1985); Tex.Code Crim. Proo. Ann. art. 42.12 § 3(g) (Vernon Supp.2003). We would not, however, apply the Polk decision to section 12.35 deadly weapons findings. See Fann v. State, 702 S.W.2d 602, 604-5 (Tex.Crim.App.1985) (stating that “[a]n affirmative finding can be and is perhaps more suited to be a punishment issue”); Polk, 693 S.W.2d at 394 n. 3 (noting that although article 37.07 section 1(a) does not mandate that the finding be made at. punishment, the statement that all criminal verdicts must be general indicates that making the finding at punishment is the preferred practice); cf. Hill v. State, 913 S.W.2d 581, 586 (Tex.Crim.App.1996) (stating that sections 4(a) and 4(b) of article 37.07 of the Texas Code of Criminal Procedure implicitly require a 42.12 section 3(g) deadly weapon issue to be submitted at the guilt-innocence stage so that the trial court will know which parole law instruction to give the jury during the punishment phase).

There are at least two reasons why this type of deadly weapon issue should be reserved to the punishment phase. First, evidence about the use of an object as a deadly weapon should not be admitted at the guilt-innocence phase when, as here, use of a deadly weapon is not a statutory element of the offense. See Tex. Pen.Code Ann. § 38.04. Second, in the event an appellate court found a defect in the deadly-weapon submission requiring reversal, the remand would ordinarily be limited to a new punishment hearing (since the finding is on a punishment issue); otherwise, a new trial will be required.

COUNTERARGUMENT

It might be argued that because the main body of the charge defined the term “deadly weapon” for the jury, placed the burden of proof on the state “throughout the trial,” and called for proof beyond a reasonable doubt for “each element of the offense,” those provisions carry over to the Deadly Weapon question on the verdict form. However, the fact that the Deadly Weapon question was conditioned on a finding of guilt and provided spaces for answers for both “did use” and “did not use” removed that question from the general instructions. A similar argument concerning a statutorily mandated instruction about the effect of a presumption was rejected by the Tyler Court in State v. Lewis. State v. Lewis, 151 S.W.3d 213, 223 (Tex.App.-Tyler 2004, no pet. h.) (citing Francis v. Franklin, 471 U.S. 307, 319-20, 105 S.Ct. 1965, 1974, 85 L.Ed.2d 344 (1985)).

We find the court’s charge to the jury to be erroneous.

HARM ANALYSIS

Having found error in the court’s charge, we turn to the question of a harmless error analysis.

HARM ANALYSIS NOT REQUIRED

Without a proper charge placing the burden of proof on the State and requiring that the jury find use of a deadly weapon beyond a reasonable doubt, “there has been no jury verdict within the meaning of the Sixth Amendment,” so the entire premise of a harm analysis “is simply absent.” Sullivan, 508 U.S. at 280, 113 S.Ct at 2082. Thus, this error appears to be one of the “federal constitutional errors labeled by the United States Supreme Court as ‘structural’ ” which is immune from a harmless error analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997). The charge is fundamentally erroneous.

HARM ANALYSIS IF REQUIRED

When error in the charge was not the subject of a timely objection to the trial court, reversal will occur under Al-manza only when the error was “fundamental” and “so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’ ” See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (on rehearing). An error results in egregious harm if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). The harm is determined by considering the entire charge; the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998). Considering all of those factors, we are left with the conclusion that the court’s judgment is based on a finding of the use of a deadly weapon that was not made by the jury “beyond a reasonable doubt.” Tex. Pen.Code Ann. § 2.01 (Vernon 2003). Thus, the error “affects the very basis of the case” and is “fundamental” and “egregious.” Hutch, 922 S.W.2d at 171.

ALTERNATE HARM ANALYSIS

Although we do not believe that this type of error is subject to harmless error review, because it involves a federal constitutional question, i.e., failure to accord due process in obtaining the required jury findings beyond a reasonable doubt, we also address whether the error in each case was harmless under Rule 44.2. Tex. R.App. P. 44.2(a). Based on the record before us, we cannot say beyond a reasonable doubt that the error did not contribute to Olivas’s conviction or punishment. See id.; Cobb v. State, 93 S.W.3d 1, 6 (Tex.Crim.App.2000) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)).

CONCLUSION

Having found fundamental federal constitutional error, we reverse the judgment in each case. Alternatively, we find under the appropriate harmless error analysis that Olivas was harmed in each case by the fundamentally erroneous charge. We remand each cause to the trial court for a new trial.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

A majority of this Court has previously found unassigned error. E.g., Hailey v. State, 50 S.W.3d 636 (Tex.App.-Waco 2001), rev’d, 87 S.W.3d 118 (Tex.Crim.App.2002); In re B.L.D., 56 S.W.3d 203 (Tex.App.-Waco 2001) (per curiam), rev’d, 113 S.W.3d 340 (Tex.2003). The Court has been reversed. E.g., Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003); In re B.L.D., 113 S.W.3d 340, 350-51 (Tex.2003), cert. denied sub nom. Dossey v. Tex. Dep’t of Protective & Reg. Servs., 541 U.S. 945, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004). There is virtually no such thing as unassigned error. Id. There is none to be addressed here.

A majority of this Court has previously found fundamental error. E.g., Rushing v. State, 50 S.W.3d 715, 722-25 (Tex.App.-Waco 2001), aff'd on other grounds, 85 S.W.3d 283, 284-87 (Tex.Crim.App.2002); B.L.D., 56 S.W.3d at 214-15; In re J.F.C., 57 S.W.3d 66, 74 (Tex.App.-Waco 2001), rev’d, 96 S.W.3d 256 (Tex.2002). The Court has been reversed and been held to have erred. E.g., Rushing v. State, 85 S.W.3d 283, 284-87 (Tex.Crim.App.2002); B.L.D., 113 S.W.3d at 350-51; In re J.F.C., 96 S.W.3d 256, 272-74, 277-79 (Tex.2002). There is almost no such thing as fundamental error. Mendez v. State, 138 S.W.3d 334, 340-42 (Tex.Crim.App.2004); Saldano v. State, 70 S.W.3d 873, 887-89 (Tex.Crim.App.2002); Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000) (reasonable doubt instruction not absolute systemic requirement). There is no fundamental error in the charge without egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). There is no fundamental error here.

The majority again finds unassigned and fundamental error here. I dissent.

      . See Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), partially oveiruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000).


source: Caselaw Access Project

author: DAVID GAULTNEY, Justice.

license: Public Domain

text:
    Billy Don SMART, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-134-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Nov. 11, 2004.
    Delivered Dec. 22, 2004.

      Dexter M. Patterson, The Woodlands, for appellant.
    Michael A. McDougal, Dist. Atty., Joel Daniels, R. Barry Rienstra, Michael C. Young, Asst. Dist. Attys, Conroe, for state.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Billy Don Smart was charged with criminal mischief, a Class A misdemeanor, and he pleaded not guilty. The jury convicted Smart of the lesser included offense of Class B misdemeanor criminal mischief. Smart elected to have the trial court assess his punishment. The trial court fined Smart $2000, sentenced him to one hundred eighty days in the Montgomery County jail, and charged him with court costs of $240.25. The fíne and court costs were to be paid at the rate of $187.00 per month until paid in full. Smart was also ordered to pay restitution of $260.00 to complainant. The court suspended the imposition of the jail sentence and placed Smart on community supervision for two years, conditioned upon his compliance with all conditions of community supervision. This Court affirmed the trial court’s judgment. See Smart v. State, No. 09-01-00393-CR, 09-01-00394-CR, 2002 WL 31322735 (Tex.App.-Beaumont 2002, no pet.) (not designated for publication).

Subsequently, the State filed an amended motion to revoke Smart’s community supervision, alleging Smart had committed criminal trespass; failed to report to the community supervision office in March 2003; failed to pay a Crime Stoppers fee of fifteen dollars; failed to perform community service restitution in January, February, and March 2003; failed to make fine payments in February and March 2003; and failed to pay court costs in February and March 2003. A hearing was held on the State’s amended motion to revoke community supervision. At the hearing, the court liaison for the Montgomery County Community Supervision Department stated she was the custodian of Smart’s probation file, the community supervision office maintained records of each probationer’s reporting schedule as part of its regular course of business, and entries were made by one with personal knowledge. Citing the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Smart’s counsel objected, contending the admission of the records violated Smart’s rights under the Confrontation Clause because the liaison testified she did not personally make all of the entries contained in the records. The trial court overruled the objection and admitted the file as State’s Exhibit 3 under the business records exception to the hearsay rule. See Tex.R. Evid. 803C6). The court liaison also testified her office maintained records in the ordinary course of business which detail violations of community supervision, and the court admitted the records as State’s Exhibit 4, overruling another Crawford objection by Smart’s counsel that, because the witness did not personally compile the records, Smart’s rights under the Confrontation Clause were violated.

The trial court found insufficient evidence to support the State’s allegations of criminal trespass and failure to pay the Crime Stoppers fee, but found the remaining allegations were supported by sufficient evidence. The trial court entered an order which revoked Smart’s community supervision and sentenced him to confinement in the Montgomery County jail for ninety days. In this appeal, Smart contends the trial court “erred in not applying the dictates of Crawford v. Washington[] ” The applicability of Crawford and the Confrontation Clause to the proceeding below is an issue of law which we review de novo. See Beeman v. State, 86 S.W.3d 613, 620 (Tex.Crim.App.2002).

The Sixth Amendment’s Confrontation Clause provides as follows: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him....” U.S. Const, amend. VI. In Crawford, the United States Supreme Court held:

[wjhere testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Crawford, 541 U.S. 36, 124 S.Ct. at 1374 (footnote omitted). However, like parole revocation, community supervision revocation is not a stage of a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); see generally Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole is not part of a criminal prosecution). A community supervision revocation proceeding is an administrative hearing, not a criminal trial. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Bradley v. State, 564 S.W.2d 727, 729 (Tex.Crim.App.1978) (“The relationship between the probationer and the court is contractual in nature.”). Crawford addressed an out-of-court testimonial statement offered in a criminal trial, and is not directly applicable in this revocation proceeding. See United States v. Aspinall, 389 F.3d 332 (2nd Cir.2004); but see Ash v. Reilly, No. 03-2007, 2004 WL 2800937, at *8, 2004 U.S. Dist. LEXIS 24451, at *16-17 (D.C.Cir. Dec. 7, 2004) (Court held a criminal defendant in a parole revocation hearing is entitled to confrontation.).

In Morrissey, the Supreme Court held a parolee is entitled to due process before parole is revoked to assure “the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” Morrissey, 408 U.S. at 484, 92 S.Ct. 2593. Due process in a revocation proceeding includes the “right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)[.]” Id. at 489, 92 S.Ct. 2593; see also Ex Parte Taylor, 957 S.W.2d 43, 44-47 (Tex.Crim.App.1997). The Supreme Court made clear in Morrissey that “there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense.” Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. The Court further explained “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id. Nothing in Crawford suggests that the Confrontation Clause, which applies to criminal trials, alters the standard set forth in Morrissey for the admissibility of evidence in a revocation proceeding. See Aspinall, 389 F.3d 332, at 340. Appellant challenges the admission of records solely on the applicability of Crawford. Appellant’s issue is overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

      . Generally, records admissible under the business records hearsay exception "that by their nature were not testimonial" were not the focus of the Crawford decision. Crawford, 541 U.S. 36, 124 S.Ct. at 1367. References


author: PER CURIAM.

text:
    TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Curtis Tommy PHILLIPS and Misty Phillips individually and as next friend of their minor children, Appellees.
    No. 09-04-069 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted on Sept. 23, 2004.
    Decided Nov. 18, 2004.

      Gregg Abbott, Atty. Gen., Barry R. McBee, First Asst. Atty. Gen., Edward D. Burbach, Deputy Atty. Gen., Grady Click, Jack F. Gilbert, Susan Desmarais Bonnen, Asst. Attys Gen., Austin, for appellant.
    B. Thomas McElroy, Johnson & McEl-roy, LLP, Dallas, for appellees.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

PER CURIAM.

Appellees, Curtis Tommy Phillips and Misty Phillips, individually and on behalf of their minor children, sued the Texas Department of Transportation (“TxDOT”) regarding injuries Curtis Tommy Phillips received in a motor vehicle accident. The trial court denied TxDOT’s plea to the jurisdiction, and TxDOT appeals, claiming the sovereign immunity doctrine bars ap-pellees’ claims. We agree and therefore will reverse the trial court’s decision and dismiss the appellees’ claims for want of jurisdiction.

Phillips’s truck was struck from behind as he was making a left turn at a crossover on Highway 59 in Liberty County, Texas. As there was no left turn lane, Phillips was turning from the inside traffic lane. Phillips maintains a special defect existed where his accident occurred and that the State has no immunity for special defect claims. He contends the State had a duty either to eliminate the defect by constructing a left turn lane where his accident occurred or to give adequate warning of the danger by providing a warning sign on the left side of the left lane well in advance of the crossover. In addition to other design and safety feature allegations, Phillips also asserts TxDOT negligently failed to lower the speed limit for traffic approaching the crossover and to reasonably provide for the safety of those in vehicles exiting the highway at the crossover.

Phillips is correct that the State’s immunity is waived regarding its duty to warn of special defects. See Tex. Civ. Prac. & Rem.Code Ann. § 101.060(c)(Vernon 1997). But the absences of a turn lane and safety devices such as warning signs or signals are not special defects. Special defects are conditions such as excavations or obstructions that unexpectedly and physically impair a vehicle’s ability to travel on the roadway and present unusual or unexpected dangers to ordinary drivers. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992) (op. on reh’g); see also State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999); Tex. Civ. Prac. & Rem.Code Ann. § 101.060(c). Special defects are distinguished by unusual qualities and are “outside the ordinary course of events.” Graham v. Tyler County, 983 S.W.2d 882, 884 (Tex.App.-Beaumont 1998, no pet.) (quoting Harris County v. Smoker, 934 S.W.2d 714, 718 (Tex.App.-Houston [1st Dist.] 1996, writ denied)). Conditions that are “longstanding, routine, or permanent” are not special defects. Id. Here, the lack of a left turn lane is a condition that is “longstanding, routine, or permanent,” and as such is not a special defect that would trigger the Texas Tort Claims Act’s waiver of sovereign immunity. See Tex. Civ. Prao. & Rem.Code Ann. §§ 101.025(b), 101.060(c) (Vernon 1997).

The State retains its immunity for claims based on its discretionary acts and omissions. Texas Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.2002); Tex. Civ. PRAC. & Rem.Code Ann. § 101.056 (Vernon 1997). According to both case law and statutory authority, the design of roadways as well as the initial installation of safety features, such as signs or signals, are discretionary functions, and the State cannot be liable for such design or safety considerations. See, e.g., State v. Miguel, 2 S.W.3d 249, 250-51 (Tex.1999); Rodriguez, 985 S.W.2d at 85; Tex. Civ. Prac. & Rem.Code Ann. §§ 101.056, 101.060(a)(1) (Vernon 1997). Further, TxDOT retains immunity regarding its decisions on speed limits as such clearly are discretionary acts. See Tex. Civ. Prac. & Rem.Code § 101.056 (Vernon 1997). TxDOT also retains immunity for Phillips’s general allegation that TxDOT failed to make the location safer. “The State preserves its immunity for formulating policy because it is a discretionary act. Decisions about highway design and about what type of safety features to install are discretionary policy decisions. A court should not second-guess a governmental unit’s decision about the type of marker or safety device that is the most appropriate.” Miguel, 2 S.W.3d at 251 (citations omitted).

We sustain TxDOT’s first issue contending it has sovereign immunity, and need not consider its second issue. We find the trial court erred in denying TxDOT’s plea to the jurisdiction. The trial court’s ruling is reversed, and judgment is rendered dismissing the case for lack of jurisdiction.

DISMISSED FOR WANT OF JURISDICTION.


author: STEVE McKEITHEN, Chief Justice.

text:
    Travunis BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-479-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 18, 2004.
    Delivered Dec. 22, 2004.

      Charles Meyers, Lufkin, for appellant.
    Clyde M. Herrington, Dist. Atty., James M. Yakovsky, Lufkin, for state.
   STEVE McKEITHEN, Chief Justice.

OPINION

On October 1, 1998, Travunis Brooks was granted “shock probation” by the trial court for a term of ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Vernon Supp.2004-2005). Prior to this, Brooks had waived indictment and pleaded guilty to having committed the offense of “Engaging in Organized Criminal Activity — 3rd Degree.” Among the terms and conditions of Brooks’ community supervision order were the following:

(a) Commit no offense against the laws of this State or of any other State or of the United States; ...
(k) Pay a supervision fee through the County Community Supervision & Corrections Department as follows: $30.00 PER MONTH....
(o) Other:
1. If Defendant has not obtained his G.E.D., Defendant is ORDERED to attend adult education classes and complete the requirements for a G.E.D. within 2 years of date of judgment, as instructed by the adult community supervision officer in charge of the case, provide the officer with satisfactory written proof of completion, including a diploma, and be responsible for any costs of the classes....

Subsequently, the State filed an application for revocation of Brooks’ community supervision alleging, inter alia, violation of the three conditions of probation set out above. Following an evidentiary hearing, the trial court found Brooks violated the above-three conditions and imposed sentence at seven years incarceration in the Texas Department of Criminal Justice— Correctional Institutions Division. Brooks appeals the revocation of his community supervision complaining of the lack of legally and factually sufficient evidence for the trial court to have found a violation of the three conditions in question.

At the outset, we note that Brooks appears to be mistaken with regards to the applicable standard of review for revocation of community supervision. Of his six appellate issues, three appear to include a factual insufficiency complaint, with citation to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), as authority for his position. Several of our sister courts, however, have held that, due to the unique factors involved in a revocation proceeding, including the trial court’s role as the sole trier of facts, a Clewis analysis is not appropriate; rather, the traditional abuse of discretion standard is applied. See Cochran v. State, 78 S.W.3d 20, 27 (Tex.App.-Tyler 2002, no pet.); Becker v. State; 33 S.W.3d 64, 65-66 (Tex.App.-El Paso 2000, no pet.); Allbright v. State, 13 S.W.3d 817, 818 (Tex.App.-Fort Worth 2000, pet. ref'd); Brumbalow v. State, 933 S.W.2d 298, 299-300 (Tex.App.-Waco 1996, pet. ref'd). These holdings recognize the fact that a revocation proceeding is not a “criminal proceeding” in the ordinary sense because, like a parole revocation hearing, a community supervision revocation hearing does not constitute a stage of a criminal prosecution even though it results in the probationer’s loss of conditional liberty. Becker, 33 S.W.3d at 65 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Furthermore, a community supervision revocation proceeding is neither a criminal nor a civil trial, but rather an administrative hearing. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993); Kimball v. State, 119 S.W.3d 463, 465 (Tex.App.-Beaumont 2003, no pet.). In Liggett v. State, 998 S.W.2d 733, 735-36 (Tex.App.-Beaumont 1999, no pet.), we also declined to apply the Clewis “factual sufficiency” standard of appellate review to appeals of community supervision revocation. Therefore, our review of the instant case will be under the traditional “abuse of discretion” standard, as set out below. Issues two, four, and six are overruled.

At a revocation proceeding, the State has the burden of establishing the alleged violations by a preponderance of the evidence. Cobb, 851 S.W.2d at 873. Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Cardona v. State 665 S.W.2d 492, 493 (Tex.Crim.App.1984). Generally, however, the trial court possesses very broad discretion in supervising those defendants who are placed upon community supervision. See generally Tex.Code Crim. Proc. Ann. art. 42.12 (Vernon Supp.2004-2005); see also Speth v. State, 6 S.W.3d 530, 533 (Tex.Crim.App.1999) (“Consistent with its broad discretionary powers in deciding whether to grant community supervision, a trial court likewise has broad discretion in determining the conditions to be imposed.”). Likewise, a trial court has broad discretion at the conclusion of revocation proceedings to continue, extend, modify, or revoke a defendant on community supervision. See Tex.Code Crim. Proc. Ann. art. 42.12, § 21(b) (Vernon Supp.2004-2005); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex.Crim.App.1986).

As noted above, the State’s burden in a revocation proceeding is to prove the alleged violations of the community supervision order by a preponderance of the evidence. Cobb, 851 S.W.2d at 873. The trial court is the sole trier of facts, judge of the credibility of witnesses, and decides what weight to be given to the testimony. Cochran v. State, 78 S.W.3d at 28. A reviewing court examines the record in the light most favorable to the trial court’s ruhng. See Jackson v. State, 645 S.W.2d 303, 304 (Tex.Crim.App.1983). Proof of a violation of a single term or condition of community supervision is sufficient to support a trial court’s decision to revoke. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980). If there is some evidence to support the trial court’s finding of a single violation, the revocation order will be upheld. Cochran, 78 S.W.3d at 28; Becker, 33 S.W.3d at 66-67.

As noted above, the trial court found that Brooks committed three violations of his community supervision order. The first violation alleged by the State was an assault committed on or about May 27, 2003. Several witnesses testified to the altercation between Brooks and the complainant, L.W., on the night in question. Brooks also took the stand in his defense and admitted striking the first blow in the fight with L.W. Brooks also admitted to hitting the complainant with his (Brooks’) vehicle. Brooks’ contended that striking the first blow upon L.W. was solely for purposes of self-defense. His testimony also implied that hitting L.W. with the vehicle was done accidentally. Brooks’ self-defense assertion, however, rings a bit hollow in light of his cross-examination testimony:

[Q].[State] Now, when you’re first having this confrontation with [L.W.], you said several times — correct me if I got this wrong — that [L.W.] was acting like he wants to hit you?
A.[Brooks] Yes, sir.
Q. What exactly did he do?
A. Like as he — when he approached me, he approached me with his fist balled up.
Q. And then he got in your face?
A. With a lot of tension. Yes, sir.
Q. And then, what did he do?
A. He acted as in a motion as if he was fixing to proceed to swing at me.
Q. But he didn’t, did he?
A. No, sir.
Q. You swung at him?
A. Yes, sir.
Q. Ml right. And you could have very easily just gotten in your vehicle, closed the door and locked it, couldn’t you?
A. That’s what I proceeded to do as when he done that.
Q. Okay. I thought you said you swung first?
A That’s what I proceeded to do was get into my car when he done that. Q. When he acted like he was going to
hit you?
A Yes, sir.
Q. Then how did you end up throwing the first punch if you were getting into the car and locking the door?
A What else left do I have to do, stand there and let him just hit me?
Q. Well, I’m not clear on what you were doing. Did you get into the car and lock the door, or did you remain out and throw the first punch?
A. No. I was proceeding to get in my car when he done that. But as he done that, I did not get all the way in my car because I was not about to just let him hit me without me at least defending myself.
Q. Okay. But if you had wanted to, instead of throwing the first punch, you could have just rolled the window up, locked the door and drove off, couldn’t you?
A. You don’t have that much time.
Q. But you had enough time to throw the first punch?
A. It all happened so fast, you can’t really just put a time limit on it.

As noted above, the trial court is the sole trier of the facts, judge of the credibility of witnesses, as well as judge of what weight to be given to the testimony. See Cochran, 78 S.W.3d at 28. Under the facts as related by Brooks, the trial court could have found Brooks’ subjective belief of apparent danger from L.W. was not reasonable, making Brooks’ “pre-emptive strike” on L.W. an assault. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996); Courtney v. State, 908 S.W.2d 48, 52 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).

The second and third violations found by the trial court were that Brooks failed to pay certain court-ordered community supervision fees, and failed to acquire his G.E.D. The State elicited testimony from Brooks’ probation officer, Mark Hog-berg, to the effect that Brooks’ community supervision order required him to obtain either a high school diploma or a G.E.D. (General Education Diploma)[] (1) during his term of community supervision. Hog-berg testified that he had no knowledge of Brooks having obtained a G.E.D. During his testimony, Brooks admitted that he did not finish the G.E.D. program.

Hogberg also testified that Brooks was ordered to pay a $30 community supervision fee each month. Hogberg testified that Brooks failed to pay the fees for the months of October through December, 2001; January through December, 2002; and January through June, 2003. Hog-berg further stated that Brooks was aware of his obligation to pay the fees and was referred to a “job program” many times. Hogberg explained that Brooks would obtain jobs and lose jobs, changing jobs on a regular basis. Brooks testified that it was difficult for him to obtain full-time employment and that he was focusing on trying to pay traffic tickets so as to keep warrants from issuing for his arrest, as well as on paying $25 per week for his court-ordered Batterers’ Intervention Program. Brooks requested that he be continued on community supervision.

The appellate record indicates that Brooks was initially placed on community supervision in 1998. Since that time, the State has filed three separate motions to revoke Brooks’ community supervision, with the trial court continuing Brooks on community supervision after amending its terms and conditions on two of those occasions. The State’s third motion to revoke resulted in the revocation under instant review.

Concerning Brooks’ failure to acquire his G.E.D. as ordered by the trial court, Brooks argues it is an unreasonable condition of probation that was impossible to perform and, therefore, cannot be the basis for revoking his community supervision. However, a defendant whose community supervision is revoked may only appeal from the revocation, not the validity or invalidity of the terms and conditions of the probation order entered months or years before. See Tex.Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2004-2005); Corley v. State, 782 S.W.2d 859, 860 (Tex.Crim.App.1989); Hawkins v. State, 112 S.W.3d 340, 343 (Tex.App.-Corpus Christi 2003, no pet.).

As for the failure to pay community supervision fees as ordered, Brooks now raises the defense of inability to pay. See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 4, 1975 Tex. Gen. Laws 2253, 2263 (current version at Tex.Code Crim. Proc. Ann. art. 42.12, § 19(h) (Vernon Supp. 2004-2005)). Stanfield v. State, 718 S.W.2d 734, 738 (Tex.Crim.App.1986) (State has the burden to prove an alleged failure to pay fees or costs was intentional). However, Brooks did not raise nor argue this as a defense to the trial court. As we find no abuse of discretion by the trial court in its finding of violations of the two previously addressed allegations, we need not examine whether Brooks adequately raised the inability to pay defense. We do note that, from the testimony of Mark Hogberg, the trial court could have inferred Brooks’ failure to pay his fees was intentional by Brooks’ failure to remain employed with one employer for very long, coupled with the evidence that Brooks made no payments for the entire year of 2002, and the first six months of 2003.

At any rate, we find the trial' court did not abuse its discretion in revoking Brook’s community supervision and imposing the previously suspended sentence of incarceration. Issues one, three, and five are overruled. The judgment of revocation is affirmed.

AFFIRMED.

      . See Roberson v. State, 71 S.W.3d 830, 832 (Tex.App.-Texarkana 2002, no pet.).


text:
    In re COMMITMENT OF Travis Jerome JOHNSON.
    No. 09-04-060-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 18, 2004.
    Delivered Dec. 22, 2004.

      Daniel E. Maeso, Nelda F. Williams, State Counsels for Offenders, Huntsville, for appellant.
    Autumn Lewis, Special Prosecution Unit, Huntsville, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   STEVE McKEITHEN, Chief Justice.

OPINION

The State of Texas filed a petition to commit Travis Jerome Johnson as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 & Supp.2004-2005). A jury found Johnson suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence. The appellant does not challenge the sufficiency of the evidence to support the jury’s findings. The trial court entered a final judgment and order of civil commitment. Johnson presents three issues in his appeal. We find no error and affirm the judgment.

The appellant’s first issue contends the judgment is void because the venue provision for commitment proceeding filed under Chapter 841, Health and Safety Code, violates an express prohibition in the state constitution. Section 841.041 places venue in Montgomery County for all petitions alleging sexually violent predator status under Chapter 841. Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp. 2004-2005). Article 3, section 56, of the Texas Constitution proclaims: “The Legislature shall not, except as otherwise provided in the Constitution, pass any local or special law, authorizing ... changing the venue in civil or criminal cases.... ” Tex. Const, art. Ill, § 56(a). The appellant argues the general law for venue in civil cases can be made applicable to cases of this type, so the legislature could not pass a special or local law placing venue exclusively in Montgomery County. Tex. Const, art. Ill, § 56(b).

First, we must address the State’s contention that the appellant waived the issue. At trial, the appellant made no objection to venue, and the issue is raised for the first time on appeal. A complaint regarding the constitutionality of a statute is subject to the ordinary rules of procedural default. See Tien Tao Ass’n, Inc. v. Kingsbridge Park Community Ass’n, Inc., 953 S.W.2d 525, 532 (Tex. App.-Houston [1st Dist.] 1997, no pet.). “[T]he constitutionality of a statute should be considered only when the question is properly raised and such determination is necessary and appropriate to a decision in the case.” In re Doe 2, 19 S.W.3d 278, 284 (Tex.2000). “The presumption is that a statute enacted by our Legislature is constitutional, and attacks on that presumption should generally be raised as an affirmative defense to enforcement of the statute.” Id. (footnote omitted); see also Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 708 (Tex.App.-San Antonio 1996, writ denied)(state constitution-based challenge to visiting judge assignment section of Court Administration Act).

Johnson contends the argued illegality of the statute deprived the trial court of jurisdiction to decide the case. Jurisdiction is fundamental and can be raised at any time. Tullos v. Eaton Corp., 695 S.W.2d 568 (Tex.1985). The appellant provides no authority holding that a court lacks subject matter jurisdiction over an action filed pursuant to an unconstitutional local or special law. Assuming for the sake of argument that the legislative act placing venue of sexually violent predator commitments is void, the appellant cites no precedent holding that no district court may have subject matter jurisdiction over a proceeding of this type, nor does he refer the Court to a case holding that improper venue is an issue of subject matter jurisdiction. A venue provision is not a substantive limitation on court power; it neither limits nor creates specific powers in a specific court. See Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 473 (Tex.App.-Austin 2002, no pet.)(judicial review of administrative decision). Even if the place for filing suit was incorrect because the venue provision of Section 841.041 is void, the State nevertheless invoked the court’s inherent power to exercise its judicial authority in the case, and the appellant failed to make the timely, specific objection required to preserve error for appellate review. See Tex.R.App. P. 33.1. Issue one is overruled.

In his second issue, Johnson argues Section 841.082(d) of the Texas Health and Safety Code is void for vagueness “in that it appeal’s to mandate the trial judge to transfer jurisdiction ‘for purposes of appeal’ to another district court.” See Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2004-2005) (“Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the ease with respect to a civil commitment proceeding conducted under Subchapters F and G.”). We considered and rejected an identical argument in In re Commitment of Lowe, No. 09-03-475-CV, 2004 WL 2827140, at ⅞ 1-5, 151 S.W.3d 739, at 740-44 (Tex.App.-Beaumont Dec.9, 2004, no pet. h.). We reject Johnson’s argument for the same reasons expressed in Lowe. Issue two is overruled.

In his third issue, Johnson contends the commitment requirements of Health and Safety Code Section 841.082, and the final judgment and commitment order entered in accordance with the statute, violate due process because they are overly broad and vague. See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2004-2005). Most of the arguments presented by Johnson on this issue were considered and rejected in In re Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex.App.-Beaumont 2004, no pet.). As the appellant presents no argument for departing from that precedent, we shall address only those arguments not presented in Castillo. Johnson mentions the First Amendment, but presents no argument that the First Amendment is implicated in this case. Furthermore, he did not raise any First Amendment-based grounds in the trial court. On appeal, Johnson complains of the commitment requirement that he notify the case manager of a change in his health or employment status. He did not object to this requirement in the trial court. Citing In re Commitment of Fisher, 123 S.W.3d 828, 846 (Tex.App.-Corpus Christi 2003, pet. granted), the appellant argues Section 841.082 does not refer to the standard of appropriateness found in Section 592.032 of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. § 592.032 (Vernon 2003). This argument, too, is presented for the first time on appeal. Likewise, the appellant did not argue in the trial court, as he does on appeal, that the statute is vague because it fails to require treatment within well-established professional standards for treatment of sex offenders. He complains that Section 841.002(3) employs an unconstitutionally vague definition of “case manager” because the statute does not specify the required professional training to be possessed by a case manager, but he did not challenge that statute before the trial court. Although Johnson challenges several provisions of a document titled “Civil Commitment Requirements: Treatment and Supervision Contract.”, the “contract” is not included in the appellate record. Because the errors asserted on appeal were not presented to the trial court, or concern documents not included in the appellate record, the appellant’s new arguments have not been preserved for appellate review. Castillo, 144 S.W.3d at 656; Tex.R.App. P. 33.1. Issue three is overruled. We affirm the judgment.

AFFIRMED.


author: KAREN ANGELINI, Justice.

text:
    In the Interest of SSJ-J.
    No. 04-03-00741-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 24, 2004.

      John D. Wennermark, Law Office of John D. Wennermark, San Antonio, for appellant.
    Charles K. Tabet, Law Office of Charles K. Tabet, Cedric L. Johnson, San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Charles and Beverly Johnson, maternal step-grandfather and natural grandmother of SSJ-J, filed suit against Cedric Johnson, SSJ-J’s biological father, seeking to be appointed managing conservators of SSJ-J. The death of SSJ-J’s mother prompted the filing of the suit. The trial court granted Cedric’s motion to dismiss for lack of standing. Charles and Beverly appeal. We reverse and remand.

Factual and ProceduRal Background

Charles Johnson is SSJ-J’s step-grandfather by virtue of his marriage to SSJ-J’s maternal grandmother, Beverly. SSJ-J’s natural parents are Beverly’s daughter, Shanequa L. Johnson, and Cedric Johnson. Although Shanequa and Cedric never married, there is a court order establishing paternity between SSJ-J and Cedric. In addition to establishing paternity, the trial court’s order appointed Shanequa and Cedric joint managing conservators of SSJ-J, with Shanequa having the right to establish SSJ-J’s primary residence. Upon Shanequa’s death, Charles and Beverly filed an Original Petition in Suit Affecting the Parent-Child Relationship seeking to be named managing conservators of SSJ-J. SSJ-J was eleven years old at the time the suit was filed. In an affidavit attached to the petition, Beverly stated that SSJ-J had lived in her home and under her care, custody and control since she was born. Cedric filed a plea in abatement contending that Charles and Beverly lacked standing to bring suit.

Thereafter, Charles filed a First Amended Original Petition in Suit Affecting Parent-Child Relationship, dropping Beverly as a party. In his amended petition, Charles alleges that appointment of Cedric as sole managing conservator or joint managing conservator with exclusive right to establish the child’s residence would not be in the child’s best interest and would significantly impair the child’s physical health or emotional development. Charles also filed an affidavit similar to the one previously filed by Beverly stating that SSJ-J had lived in his home and under his care, custody and control since she was born. He also stated that the child’s physical health or emotional development would be significantly impaired if she were placed in the primary care and custody of Cedric. Beverly then filed a Petition in Intervention of Grandparent in Suit Affecting the Parent-Child Relationship. She also alleged that appointment of Cedric as sole managing conservator or joint managing conservator with exclusive right to establish the residence of the child would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development. And, Beverly filed an affidavit with similar allegations. Cedric then filed another plea in abatement and a motion to dismiss for lack of standing. The trial court considered Cedric’s plea in abatement and motion to dismiss at a hearing in which no live testimony was taken. Thus, the trial court had before it the affidavits of Charles and Beverly and arguments of counsel. At the conclusion of the hearing, the trial court granted Cedric’s plea in abatement and motion to dismiss for lack of standing. Charles and Beverly appeal.

Discussion

The question of who has standing to bring an original suit affecting the parent-child relationship seeking managing conservatorship is a threshold issue. In re Pringle, 862 S.W.2d 722, 724 (Tex.App.Tyler 1993, no writ). Before determining the merits of a dispute, a trial court should determine whether a party has standing. Id. Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). And, standing presents a question of law. Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.-Fort Worth 2001, no pet.). As with an order of dismissal for lack of subject-matter jurisdiction, we review an order of dismissal for lack of standing by construing the pleadings in favor of the plaintiff and looking to the pleader’s intent. Tex. Ass’n of Bus., 852 S.W.2d at 446. When considering a plea to the jurisdiction, the trial court should look solely at the pleadings and must take all allegations in the pleadings as true. Wash. v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Thus, we review the issue de novo. Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex.App.-El Paso 2002, no pet.).

Charles and Beverly contend that they have standing to bring suit pursuant to section 102.003(a)(9) of the Texas Family Code. Section 102.003, entitled “General Standing to File Suit,” is the general standing provision for filing an original suit affecting the parent-child relationship. Section 102.003(a)(9) provides that an original suit may be filed at any time by

a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.

Tex. Fam.Code Ann. § 102.003(a)(9) (Vernon Supp.2004). Charles and Beverly have met section 102.003(a)(9)’s standing requirement by pleading that they had actual care, control, and possession of SSJ-J for the requisite period of time.

Despite this fact, Cedric contends that, in addition to meeting sections 102.003(a)(9)’s standing requirement, Charles and Beverly must also meet the requirement of section 153.131 of the Family Code. That section, entitled “Presumption That Parent to be Appointed Managing Conservator,” provides that

unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

Tex. Fam.Code Ann. § 153.131(a) (Vernon 2002). Thus, according to Cedric, Charles and Beverly do not have standing because they did not plead that appointment of Cedric would significantly impair SSJ-J’s physical health or emotional development. We note, however, that Charles and Beverly did, in fact, include allegations in Charles’s amended pleading, Beverly’s plea in intervention, and their affidavits that appointment of Cedric as sole managing conservator or as joint managing conservator with the right to establish residency of the child would significantly impair the child’s physical health or emotional development. Cedric urges, however, that these pleadings were not sufficient, because in order to have standing, Charles and Beverly must specify wrongful conduct by Cedric that could be considered harmful to the physical or emotional health of the child. Cedric cites to a number of cases, including In re Aubin, 29 S.W.3d 199 (Tex.App.-Beaumont 2000, orig. proceeding), Von Behren v. Von Bekren, 800 S.W.2d 919 (Tex.App.-San Antonio 1990, writ denied), Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990), Brigham v. Brigham, 863 S.W.2d 761 (Tex.App.-Dallas 1993, writ denied), and In re W.G.W., 812 S.W.2d 409 (Tex.App.Houston [1st Dist.] 1991, no writ). None of these, however, are on point.

In In re Aubin, 29 S.W.3d 199, 201 (Tex.App.-Beaumont 2000, orig. proceeding), the Burks filed suit under the former version of section 102.003(a)(9) against Au-bin, the mother of three children, claiming that the children had been in their actual care, control, and possession for at least six months. Aubin filed a motion to dismiss challenging the Burks’ standing to bring suit. Id. After the trial court denied her motion, Aubin filed a petition for writ of mandamus, alleging that the Burks had failed to establish standing at the temporary hearing and that the Burks had failed to prove that Aubin had placed the children in any clear and immediate danger. Id. The appellate court denied the petition without stating a reason for its ruling. Id. A year later, the Burks filed a motion for enforcement of the possession order and a motion to modify the temporary orders requesting that they be named temporary sole managing conservators. Id. In response, Aubin filed a motion to dismiss for want of prosecution, which included allegations that the trial court’s temporary orders were an unconstitutional governmental interference with her right to rear her children. Id. When Aubin did not appeal’ at the hearing on the motion to enforce, the trial court refused to rule on any of the motions and suggested the Burks file a writ of habeas corpus. Id. A month later, the trial court granted the Burks’ application for an ex parte writ of attachment. Id. In response, Aubin filed another petition for writ of mandamus, requesting the appellate court command the trial court to vacate all of the orders granting writ of attachment, and to instruct his clerk to void the writs of attachment that have been issued. Id. at 201-02. In addition, Aubin requested that the appellate court command the trial court to vacate all temporary orders issued in this case, and to dismiss the suit. Id. at 202.

The appellate court, however, refused to order dismissal based on lack of standing, stating that there is some evidence in the record that the Burks had possession of the children for the requisite period. Id. at 203. The court further stated that the issue of whether Aubin is an unfit parent is the purpose of suits affecting the parent-child relationship and presents a factual dispute precluding granting mandamus relief on the trial court’s denial of the motion to dismiss. Id. In re Aubin, therefore, does not support Cedric’s argument.

Cedric also relies on Von Behren v. Von Behren, 800 S.W.2d 919, 920-21 (Tex.App.-San Antonio 1990, writ denied), in which a grandmother brought suit seeking to become managing conservator of her grandchildren. She brought the suit, however, pursuant to the standing provision for grandparents or others who have had substantial contact with the child. Id. at 921. This provision required proof that there is serious and immediate questions concerning the welfare of the child. Id. In upholding the trial court’s dismissal for lack of standing, the appellate court made the distinction between those who are automatically given standing and those who are, because of an emergency situation, undertaking a rescue mission. Id. Thus, this case is distinguishable because Charles and Beverly have automatic standing under section 102.003(a)(9).

The case of Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990), another case upon which Cedric relies, does not involve a standing issue, but instead is an appeal from a ruling on the merits. Likewise, Brigham v. Brigham, 863 S.W.2d 761 (Tex.App.-Dallas 1993, writ denied), is an appeal from a trial on the merits and does not involve the issue of standing. Similarly, In re W.G.W., 812 S.W.2d 409 (Tex. App.-Houston [1st Dist.] 1991, no writ), is an appeal from a trial on the merits. Thus, none of these cases support Cedric’s position. As such, Cedric has cited no authority supporting his argument that in order to have standing, Charles and Beverly must plead facts sufficient to satisfy both section 102.003(a)(9) and section 153.131(a).

In contrast, Charles and Beverly have cited pertinent authority in support of their standing argument. In Doncer v. Dickerson, 81 S.W.3d 349, 351 (Tex.App.-El Paso 2002, no pet.), the El Paso Court of Appeals interpreted the Family Code’s standing statute in a situation similar to this case. In Doncer, Shelly Dickerson and Ray Doncer were married and had a son. Id. Upon divorce, Shelly and Ray were named joint managing conservators of the child, with Shelly having the right to establish the primary residence of the child. Id. Ray then married Deborah Doncer who, upon Ray’s death, sought pos-sessory conservatorship of the child. Id. at 251-52. Shelly argued that Deborah lacked standing because the child never resided in Deborah and Ray’s home for a period of six consecutive months as required by the Family Code’s general standing provision. Id. at 352. In holding that Deborah had standing, the El Paso Court of Appeals traced the history of the Family Code’s standing statute.

The current Family Code standing statute derives from former section 11.03. Id. at 354. Section 11.03 originally provided that a suit affecting the parent-child relationship could be brought by any person with an interest in the child. Id. Later, a section was added which defined a person with an interest in the child as a person who had possession and control of the child for at least six months immediately preceding the filing of the petition or was named in the code as being entitled to service by citation. Id. This new section “established a reasonable minimum time after which a person supplying care and having actual custody of a child is deemed to have worked his or her way into standing to file, or to intervene in, a SAPCR.” Id. at 355. Thus, “the legislature has determined that a person having had actual custody of a child for the ‘magic period’ of six months should be presumed to have ‘an interest in the child.’ ” Id.

The standing statute was again amended to provide a laundry list of those entitled to bring suit. Id. The list included “a person who has had actual possession and control of the child for at least six months immediately preceding the filing of the petition.” Id. Once again, the standing statute was amended to provide that an original suit may be brought by “a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months immediately preceding the filing of the petition and the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” Id. at 356. The commentary in the legislative issue of the Section Reports states:

The amendment to subsection (a)(10) is primarily designed to give standing to a stepparent who assisted in raising a child in the event that the child’s parent dies. Note, however, that the statutory language is not limited merely to stepparents; literally it can also include an unmarried cohabitant or even an adult sibling of the child of a deceased parent. It should always be borne in mind that standing to sue does not mean a right to win, but merely a right to be heard in court. Therefore, those who claim standing under this new subsection still will most often be faced with overcoming the parental presumption in a contest for managing conservatorship with the surviving parent. On the other hand, if possessoiy conservatorship is sought, this grant of standing is clearly the first step toward maintaining contact with the child.

Id. (emphasis added). When the Family Code was recodified, former section 11.03 became section 102.003. Subsection (8) became subsection (9) and subsection (10) became subsection (11). Id. at 357.

The standing statute was further amended to provide that foster parents who have had a child placed with them for not less than eighteen months have standing. Id. And, finally, the statute was amended to include section 102.003(a)(9), which provides that a person, other than a foster parent, who has had actual care, control, and possession of the child for six months ending not more than ninety days preceding the filing has standing. Id,

The El Paso Court of Appeals in Doncer was specifically called upon to interpret section 102.003(a)(ll), which was “designed as a ‘stepparent’ statute, affording standing to, among others, a stepparent who helps raise a child when the stepparent’s spouse — one of the child’s parents — dies.” Id. at 358. The court of appeals, however, looked no further than the general standing statute to determine standing. Id. at 362. Likewise, in interpreting section 102.003(a)(9), we see no reason and have found no authority that would require going beyond the general standing statute. There is simply nothing in the Family Code, or in cases interpreting the standing provision, that requires a petitioner under section 102.003(a)(9) to allege facts showing that the appointment of the parent would significantly impair the child’s physical health or emotional development in order to have standing. This is an issue that goes to the merits. Nevertheless, we recognize, as the El Paso Court of Appeals did in quoting the commentary to the Section Reports when the standing provision was amended: standing does not mean the right to win; it is only a right to be heard. Thus, those claiming standing to bring a SAPCR must overcome the parental presumption. Id. at 356. And, Charles and Beverly must still overcome the parental presumption in a trial on the merits.

According to Cedric, however, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), invalidates Doncer. For support, Cedric cites to Doncer in which the court of appeals noted that Troxel issued after the trial court’s ruling. See Doncer, 81 S.W.3d at 362. Because the trial court did not address whether Troxel impacted Doncer’s suit, the appellate court did not consider it either, as to do so would be to render an advisory opinion. Id. There is nothing, however, in Troxel that would affect the decision in Doncer. Similarly, there is nothing in Troxel that would affect whether Charles and Beverly have standing in this case. Troxel involved the constitutionality of a grandparent visitation statute that allowed any person to petition the court for visitation rights at any time and allowed the court to grant such rights based on the best interest of the child. Troxel, 530 U.S. at 60, 120 S.Ct. 2054. The Supreme Court in Troxel held that the statute was unconstitutional because it infringed on a parent’s fundamental right to make decisions concerning the care, custody, and control of her children. Id. at 72. Troxel does not, however, affect the standing issue presented by the case before us. As stated above, Charles and Beverly will still be required to overcome the parental presumption in a trial on the merits.

Conclusion

In accordance with the above, we hold that Charles and Beverly have standing pursuant to the section 102.003(a)(9) of the Family Code. Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court for further proceedings in accordance with this opinion.

      . According to Appellants' Brief, Beverly changed her status from petitioner to interve-nor in order to invoke section 102.004(b) of the Texas Family Code, which provides specifically for grandparent standing. There is no need for reliance on the grandparent standing provision, however, since a grandparent can also qualify as “a person” under section 102.003(a)(9). See In re C.M.V., 136 S.W.3d 280, 285 n. 2 (Tex.App.-San Antonio 2004, no pet.). Thus, whether Beverly is an intervenor or a petitioner makes no difference in this appeal; the issue is whether she and Charles have standing pursuant to section 102.003(a)(9).


author: ALMA L. LÓPEZ, Chief Justice.

text:
    George HACHAR, Sr., Appellant/Cross-Appellee, v. Isaura HACHAR, et al., Appellees/Cross-Appellants.
    No. 04-03-00840-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 24, 2004.

      Lamont A. Jefferson, Ben L. Meches, Lisa S. Barkley, Haynes and Boone, L.L.P., San Antonio, Debra J. McComas, Haynes and Boone, L.L.P., Dallas, for appellant.
    Thomas H. Veitch, Bruce K. Spindler, Langley & Banack, Inc., San Antonio, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

George Hachar, Sr. (“George”) appeals the trial court’s orders awarding attorney’s fees in an action relating to the trusts created under Nicholas D. Hachar’s Last Will and Testament. George contends that the trial court erred in awarding attorney’s fees to Isaura Hachar, Guadalupe Hachar Didieu, Maria Guadalupe Rebeca Hachar de la Fuente, and Olga Hachar Lavaude (collectively referred to herein as the “Beneficiaries”). George also contends that the trial court erred in refusing to award him • conditional appellate fees. The Beneficiaries filed a cross-appeal asserting a conditional issue if this court determines that the award of attorney’s fees is governed by a “prevailing party” standard and a second issue relating to the percentage used to calculate post-judgment interest. We affirm the trial court's orders.

Background

Nicholas D. Hachar created testamentary trusts for his children and their children in his Last Will and Testament. The will named five individual trustees and one corporate trustee, the Laredo National Bank. The will provided that upon the death, resignation, or removal of the individual trustees, the remaining trustees would continue to serve as trustees; provided, however, that a corporate trustee was required to be appointed whenever there was a vacancy in the corporate trusteeship.

The Laredo National Bank resigned as trustee and the International Bank of Commerce (“IBC”) was appointed as successor corporate trustee on March 3, 1992. The will provides that a majority of the individual trustees will appoint a successor corporate trustee; however, if a majority cannot decide, one of the district courts in Webb County must appoint the successor. IBC resigned as corporate trustee by written notice dated August 4, 2000. At that time, only two individual trustees remained, George Hachar and Isaura Hachar. Because they failed to appoint a successor corporate trustee, IBC filed a petition requesting the trial court to appoint a successor corporate trustee.

The Beneficiaries filed an answer and a cross-claim against George alleging that he had violated the terms of the trust and breached his fiduciary duty in the manner in which he managed the trust property. The primary asset of the trust is a 6500-acre ranch, and the trust’s property is valued in excess of $25 million. George answered the cross-claim asserting numerous affirmative defenses, including laches, estoppel, waiver, and consent. George also filed a counterclaim for attorney’s fees.

The trial court ultimately severed the cross-claim into a separate cause number. A judgment was entered on November 30, 2001, appointing Falcon International Bank as successor corporate trustee. The judgment states, “The Court finds that under the circumstances, Falcon International Bank is the only entity willing to serve as Corporate Trustee which meets the requirements of the Testator being a bank and having statutory trust powers. The Court further finds that there is currently no national bank located in reasonably close proximity that is willing to serve as Successor Corporate Trustee.” The judgment reserved the issue of attorney’s fees for a later date.

The trial court subsequently entered an order awarding George $131,677.29 in attorney’s fees. The trial court found that George had segregated the legal work performed with regard to the successor trustee appointment from the legal work relating to the cross-claim. The Beneficiaries appealed the attorney fee award.

The parties then proceeded with discovery on the severed cross-claim, and a number of hearings were held. On October 28, 2002, a hearing was held at which the trial court announced, “Let the record reflect that the court has talked to all parties, has entered into negotiations this morning, and based on discussions with all parties, I believe we have an agreement.” The agreement was dictated into the record, and a written settlement agreement was subsequently signed. The settlement agreement vested Falcon Bank with exclusive control over the development and management of the land owned by the trust for a period of ten years. The agreement also provided that all reasonable and necessary attorney’s fees incurred by both sides would be taxed against the trust, with the trial court to determine the amount of fees reasonably and necessarily incurred.

The Beneficiaries submitted an application for attorney’s fees, attaching the affidavit of one of their attorneys, Thomas H. Veitch. The application requested $182,731 in fees and $25,922.06 in expenses. Veitch recited the factors he considered in determining that the amounts charged in the attached itemized statements were reasonable and necessary. The statements contained charges from October 25, 2000, to November 21, 2002. Veitch also stated that “of the $182,713.00 [sic] in fees” approximately $10,000 were incurred in representing Isaura Hachar as Trustee with regard to IBC’s motion to withdraw as corporate trustee.” The trial court entered an order awarding the Beneficiaries $106,030.00 in fees and $21,981.00 in expenses.

George also submitted his application for attorney’s fees and expenses. George’s application detañed the various factors relied upon in determining that the fee is reasonable and necessary. In his application, George also asserted that the Beneficiaries were not entitled to any fees because they were the losing party and the trial court could only award fees to the prevailing party. Attached to George’s application was the affidavit of one of his attorneys, Lamont Jefferson. Mr. Jefferson summarized the history of the litigation and attached itemized billing records. The application requested $222,801.40 in fees and $15,533.46 in expenses. George also filed a supplemental application seeking attorney’s fees in the event of an appeal. The Beneficiaries responded to the application, stating that George was not the prevailing party. The trial court entered an order awarding George $152,718.00 in fees and $15,533.00 in expenses. The trial court’s order included detailed findings and conclusions.

Both George and the Beneficiaries filed notices of appeal.

BENEFICIARIES’ ATTORNEY’S FEES

Section 114.064 of the Texas Trust Code provides, “In any proceeding under this code the court may make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just.” Tex. Prop.Code Ann. § 114.064 (Vernon 1995). The granting or denying of attorney’s fees to a trustee under section 114.064 is within the sound discretion of the trial court, and a reviewing court will not reverse the trial court’s judgment absent a clear showing that the trial court abused its discretion by acting without reference to any guiding rules and principles. See Lee v. Lee, 47 S.W.3d 767, 793-794 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); Lyco Acquisition 198k, Ltd. P’ship v. First Nat. Bank of Amarillo, 860 S.W.2d 117, 121 (Tex.App.-Amarillo 1993, writ denied).

Section 114.064 is virtually identical to the costs provision contained in the Uniform Declaratory Judgments Act (“Act”). Section 37.009 of the Act provides, “In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. PRAC. & Rem.Code Ann. § 37.009 (Vernon 1997). The award of attorney’s fees, in declaratory judgment actions, is clearly within the trial court’s discretion and is not dependent on a finding that a party “substantially prevailed.” Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex.1996). “The same is true of other statutes that provide that a court ‘may’ award attorney fees.” Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). Accordingly, section 114.064 is not a “prevailing party” statute, and we need not further address the Beneficiaries’ “conditional” issue on cross-appeal.

With regard to awarding attorney’s fees, the reasonable and necessary requirements are questions of fact to be determined by the factfinder, but the equitable and just requirements are questions of law for the trial court to decide. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161-62 (Tex.2004). Unreasonable fees cannot be awarded, even if the court believes them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees. Id.

The determination of whether attorney’s fees are reasonable and necessary is guided by reference to the factors set forth in Rule 1.04 of the Rules of Professional Conduct, including: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. See Tex. Disciplinaey R. PRof’l Conduct 1.04(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Vernon 1998); Everest Exploration, Inc. v. URI, Inc., 131 S.W.3d 138, 144 (Tex.App.-San Antonio 2004, no pet.). On appeal, matters of fact are subject to legal and factual sufficiency review. See Bocquet, 972 S.W.2d at 21. To determine whether there is legally sufficient evidence, we review only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Everest Exploration, Inc. v. URI, Inc., 131 S.W.3d at 144. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge must fail. Id.

George initially contends that the trial court’s award of attorney’s fees to the Beneficiaries was not equitable and just. George asserts that the trial court was required to take into consideration the “success” of the parties in exercising its discretion. As previously determined, although a trial court may consider a party’s success, section 114.064 is not a prevailing party statute; therefore, an award of attorney’s fees under section 114.064 is not dependent on a finding that a party “substantially prevailed.” Barshop, 925 S.W.2d at 637. In this case, the trial court was very involved in the parties’ negotiations in reaching a settlement and during the discovery process that lasted almost one year. The trial court has more knowledge than this court with regard to the issues that concerned both parties. From their response to George’s application, it appears that the Beneficiaries believed they were successful in removing the development and management of the trust’s land from George’s control. Given the history of the litigation and its ultimate resolution by settlement, the trial court did not err in determining that an award of attorney’s fees to the Beneficiaries was equitable and just.

George also contends that the evidence is legally insufficient to support a finding that the attorney’s fees incurred by the Beneficiaries were reasonable and necessary. George asserts that the affidavit submitted by the Beneficiaries’ attorney was conclusory and amounts to no evidence.

The affidavit of the Beneficiaries’ attorney listed the factors he considered in determining that the fees itemized in the billing statements were reasonable and necessary. Those factors include the factors listed in Rule 1.04. Generally, a trial court does not abuse its discretion when an attorney testifies that the fees incurred were reasonable and necessary and summarizes the hours worked and rate charged. See London v. London, 94 S.W.3d 139, 147 n. 3 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (listing numerous cases finding no abuse of discretion). The fact that the attorney in this case testified to the reasonableness and necessity of the fees in an affidavit does not preclude the trial court from relying on that testimony. Accordingly, the affidavit and itemized billing statements are legally sufficient evidence to support the award of the attorney’s fees to the Beneficiaries.

George further contends that the attorney’s fees were erroneously awarded because the Beneficiaries failed to segregate the fees relating to the replacement of the corporate trustee from the fees relating to the cross-claim. Although the Beneficiaries did have a duty to segregate the fees relating to the corporate trustee action, Everest Exploration, Inc. v. URI, Inc., 131 S.W.3d at 144, the affidavit in support of their application states approximately $10,000.00 in fees were incurred in regard to the corporate trustee action. This is sufficient segregation. See Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 565 n. 7 (Tex.App.-Texarkana 2003, pet denied) (noting segregation can be provided by rough percent of amount attributable to each claim); Leon Ltd. v. Albuquerque Commons P’ship, 862 S.W.2d 693, 709 (Tex.App.-El Paso 1993, no pet.) (testimony providing percentage of total fees attributable to various claims sufficient segregation); Reeves v. Ultra Realty Co., No. 05-99-01144-CV, 2000 WL 1015970, at *10 (Tex.App.-Dallas, July 25, 2000, no pet.) (not designated for publication) (very subjective estimate of segregated amount sufficient).

George complains that the $10,000.00 estimation is contrary to the billing records. George asserts that the records show time and travel expenses in excess of $10,000.00 were incurred while the corporate trustee litigation was pending. George’s complaint, however, ignores that the Beneficiaries initially filed their cross-claim in the pending corporate trustee litigation. Although the actual pleading was not filed until June of 2001, the itemized fee statements reveal several early entries regarding the discussion of strategies which the trial court may have believed included discussions regarding the counter-claim. In addition, an entry regarding proposed pleadings appears as early as December of 2000 which was after the date the original answer was filed. Accordingly, the trial court was not required to conclude that all entries made while the corporate trustee litigation was pending related exclusively to the corporate trustee issue.

Appellate Attorney’s Fees

We review a trial court’s award of appellate attorney’s fees under an abuse of discretion standard. J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 289 (Tex.App.-San Antonio 2000, pet. denied). The general rule appears to be that a “trier of fact, in its discretion, may allow a fee to an attorney for an appeal, but is not required to do so.” Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex.App.-Dallas 2003, no pet.); see also Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 221 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).' In Lee v. Perez, however, the Houston 14th court held that when a party presented expert testimony that $10,000 was a reasonable fee for an appeal, the trial court had the discretion to award a smaller fee but no discretion to award nothing. 120 S.W.3d 463, 469-70 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In a footnote, the Houston 14th court noted that Martin suggests the contrary but concluded that Martin was not controlling because it was written by a panel of visiting judges. Id. at 469 n. 27.

Because no findings of fact and conclusions of law were requested with regard to the trial court’s decision not to conditionally award appellate attorneys’ fees, we are left to speculate regarding the trial court’s reasons. In view of the trial court’s comments at the hearing at which the settlement was dictated into the record, the trial court could have considered the tortured history of the litigation and the fact that the parties had reached a settlement. Perhaps the trial court decided not to award appellate attorney’s fees in an effort to discourage an appeal. In any event, we hold that the awarding of appellate attorney’s fees is not mandatory, and the trial court did not abuse its discretion in not awarding conditional appellate attorneys fees. See Ridge Oil Co., 148 S.W.3d at 161-62 (court may conclude that it is not equitable or just to award even reasonable and necessary fees).

Post-Judgment Interest

In their second cross-appeal issue, the Beneficiaries contend that the trial court erred in awarding George post-judgment interest at 10%, which exceeded the percentage rate permitted by the Texas Finance Code. The Beneficiaries contend that the amount of post-judgment interest is contrary to the amount permitted by law and the collection of the excessive interest rate would constitute a breach of George’s fiduciary duty as a trustee of the trusts. George counters that the issue was waived because no complaint was made to the trial court.

“To preserve a complaint of error in a judgment, a party must apprise the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method.” Willis v. Willis, 826 S.W.2d 700, 702 (Tex.App.-Houston [14th Dist.] 1992, no writ); see also Plasky v. Gulf Ins. Co., 160 Tex. 612, 835 S.W.2d 581, 584 (1960) (appellant waived error concerning time period of postjudgment interest); Jackson v. Ranger Dev. Co., No. 01-01-00611-CV, 2002 WL 31087161, *3 (Tex.App.-Houston [1st Dist.] Sept. 19, 2002, no pet.) (contention that trial court erred in holding that postjudgment interest was at the rate of 10% per annum waived) (not designated for publication). Because the Beneficiaries did not apprise the trial court of their objection to the percentage rate, error has not been preserved.

Conclusion

The trial court’s orders are affirmed.

      . IBC’s original petition reflects that George is also a beneficiary of the trusts, and the failure to include George in the definition of the term "Beneficiaries” is not intended to have any legal effect. The defined term is simply used for ease of reference.

      . The Beneficiaries also contend that the collection of an excessive interest rate would constitute a breach of George's fiduciary duty. Although this claim may give rise to future litigation, it is not ripe for our consideration in this appeal.