author: W. KENNETH LAW, Chief Justice. BOB PEMBERTON, Justice,

text:
    FORD MOTOR COMPANY, Appellant, v. Tiburcio LEDESMA, Jr., Appellee.
    No. 03-03-00634-CV.
    Court of Appeals of Texas, Austin.
    May 5, 2005.
    Rehearing Overruled Sept. 9, 2005.

      Craig A. Morgan, Philip A. Lionberger Michael W. Eady, Thompson, Coe, Cousins & Irons, LLP, Austin, for Appellant.
    Brian Roark, Law Office of Brian Roark, PC, Ken R. Oden, Austin, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

W. KENNETH LAW, Chief Justice.

Tiburcio Ledesma, Jr. sued Ford Motor Company for damages in connection with a collision between Ledesma’s truck and two parked cars. The critical factual dispute at trial was whether the truck’s axle dislodged and caused the truck to hit the parked cars, or whether the axle dislodged as a result of the collisions. Finding that a manufacturing defect was a producing cause of the accident, and that Ledesma’s negligence was not a proximate cause, the jury awarded Ledesma $215,380 in damages for the cost of repairs to his truck, the loss of use of the truck, profits lost from the period the truck was out of service for his business, and damage to his credit reputation. The trial court also awarded prejudgment interest.

Ford raises procedural and substantive complaints. It argues that the court erred by allowing Ledesma’s experts to testify because their opinions were not reliable, and by excluding some testimony by Ford’s expert on the basis that he was not a qualified accident reconstructionist. Ford also argues that the court submitted incorrect definitions of manufacturing defect and producing cause to the jury. Ford also contends that legally insufficient evidence supports the jury’s finding that Ledesma’s truck contained a manufacturing defect that was a producing cause of this accident.

We will affirm the judgment.

BACKGROUND

Ledesma bought a new 1999 Ford F-350 pickup truck in March 1999 for use in his construction business. The truck had dual rear tires housed in wheel wells that protruded from the sides of the truck. In June 1999, the truck had about 4,100 miles on it, had not been in any collisions, and had no mechanical problems. On June 5, 1999 at approximately 5 p.m., Ledesma had an accident while driving the truck on a dry, two-lane street on which several cars were parallel parked. At some point during the accident sequence, the truck’s rear leaf-spring and axle assembly came apart and the driveshaft disengaged from the transmission. The truck collided with at least two of the parked cars. The parties presented different accounts of the accident and different theories of causation. The jury resolved this dispute in Ledesma’s favor.

Ledesma’s version

Ledesma’s theory of the accident is that the rear axle displaced and the driveshaft disengaged and “pronged” into the street, causing him to lose control of his truck and crash into the parked cars.

Ledesma testified that he was driving the truck at a little more than thirty miles per hour. He felt a jolt while shifting into third gear. The truck slid to the right and its back end went into the air. Ledesma said he then turned the steering wheel to the left to avoid a Pontiac Firebird parked along the curb. The right back end of his truck struck the left back end of the Fire-bird. Ledesma said he was unable to control the truck because the rear end kept “bouncing.” The truck then hit a second parked car before coming to rest with its right rear tire up on the curb. Ledesma denied that the truck stopped on anyone’s lawn.

Geert Aerts, a mechanical engineer, testified about two possible causes of the accident. Both theories arose from a manufacturing asymmetry involving the u-bolt that clamps the axle in suspension below the leaf-spring assembly. This schematic of the assemblies was an exhibit at trial:

Aerts testified that, during the manufacturing process, one of the legs on the u-bolt was made longer than the other leg. Aerts theorized that the unequal lengths of the legs on the u-bolt prevented the nuts from being adequately tightened. As a result, the u-bolt did not adequately clamp the axle housing. Aerts’s second theory was that the flattened portion of the u-bolt was off center. As a result, the round portion of the bolt could cause an indentation in the axle housing and eventually cause the axle housing to become loose. Under both theories, the loose axle housing shifted back and allowed the driveshaft to disengage and fall onto the street.

David Hall, an accident reconstructionist, testified based on photographs taken of the accident scene. Hall said that there were marks present in the street that were caused by the driveshaft striking the pavement. On the truck’s path, these marks were before the collision with the first parked car, the Firebird. Hall also testified that the impact between the truck and the Firebird occurred at a very low speed. Ford’s version

Ford’s theory is that Ledesma was driving inattentively and hit the parked cars with the truck’s protruding wheels, sending the truck out of control, careening into cars and over a curb onto a lawn. Ford contends that the impact with the curb caused the axle to shift back and the drive-shaft to disengage.

Edward Pylant, the owner of the Fire-bird that was hit, testified by deposition that he witnessed the accident. Pylant said that Ledesma was speeding at between 40 and 50 mph. Pylant testified that Ledesma was not paying attention and drove very close to the cars parked along the curb. As the truck passed the Firebird, the right wheel tub, the rear axle, and the outside right rear tire of the truck hit the Firebird. Pylant claims the impact caused the truck’s back end to come off the ground and bounce away from the Firebird. The truck then hit a Honda Civic. The truck’s wheels hit the curb, went over the curb, and separated from the truck.

Based on Ledesma’s pretrial motion, the court excluded some testimony from Dan May, Ford’s expert witness. May is a mechanical engineer with thirty-one years of experience at Ford, including twenty-five years as a truck engineer. For seven years, May worked as a product design engineer and was involved in the manufacture and assembly of components. The trial court allowed May to testify about matters relating to design and manufacture but prevented him from testifying on matters relating to accident reconstruction because he was not an accident reconstruc-tionist. During trial, the court said it would let Ford question May about the cause of the accident but would then admit the report of Ralph Stern, Ford’s original accident reconstruction expert. In his report, Stern opined that the rear spring rear spring bolt broke, causing the rear wheels to slip far enough to pull the drive shaft out of the transmission. Ford elected not to have May testify about the cause of the accident.

The jury verdict

The trial court returned a verdict in favor of Ledesma. The jury concluded that a manufacturing defect was the cause of the accident and that Ledesma was not negligent. The jury awarded Ledesma $215,380 as damages for the repair of the truck, loss of the use of the truck, Ledes-ma’s lost profits, and damage to Ledesma’s credit reputation. In addition, the trial court awarded Ledesma $65,912 in prejudgment interest.

DISCUSSION

Ford raises four issues on appeal that relate to Ledesma’s failure to carry the burden of proof that should be imposed upon a plaintiff alleging a manufacturing defect. In Ford Motor Co. v. Ridgway, the Texas Supreme Court described the plaintiff’s burden as follows:

A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Torrington Co. v. Stutzman, 46 S.W.3d 829, 844 (Tex.2000); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434 (Tex.1997). A plaintiff must prove that the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff’s injuries. Torrington Co., 46 S.W.3d at 844.

135 S.W.3d 598, 600 (Tex.2004). Ford complains that Ledesma’s experts did not supply such evidence, that the court erroneously excluded some of its expert’s testimony, that the court’s instruction did not require Ledesma to prove all of the elements of his cause of action, and that the evidence was legally insufficient to support the judgment.

Expert witnesses

Expert witnesses are permitted if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue. Tex.R. Evid. 702. Experts may be qualified by knowledge, skill, experience, training, or education. Id.

Upon objection by the opponent of the evidence, the proponent of expert testimony has the burden to prove that the evidence is admissible. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). The proponent must show that the witness has special knowledge on the subject of his testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). The testimony must be shown to be reliable before it is admitted. Id. at 726. The trial court is required to assess the reliability — not the truth or falsity — of the expert’s opinion. Robinson, 923 S.W.2d at 558. The criteria for assessing reliability vary depending on the type of expert and the nature of the evidence. Gammill, 972 S.W.2d at 726-27; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In some cases, an expert’s experience alone may provide a sufficient basis for such testimony. Gammill, 972 S.W.2d at 726. But the court is not required to admit an expert’s opinion merely because the expert opines that his conclusion is valid. General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.1997). There must not be too great an analytical gap between the data or observations and the expert’s conclusions. Joiner, 522 U.S. at 146, 118 S.Ct. 512; Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 904-905, 2004 Tex. LEXIS 1429, at *12 (Tex. 2004). The trial court has broad discretion in determining admissibility of an expert’s testimony. Robinson, 923 S.W.2d at 556-57.

We can reverse the district court’s determination regarding admission of the expert testimony only if the trial court abuses its discretion. Id. at 558. We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. See id. We cannot find an abuse of discretion merely because we disagree with the decision of the trial court. See id.

Ford challenges the trial court’s admission of testimony by Ledesma’s experts, Geert Aerts and David Hall, and the exclusion of some of the testimony from Ford’s expert, Dan May.

Geert Aerts

, Ford does not challenge Aerts’s qualification to give opinions, but contends that the foundational data underlying his opinion is unreliable and that his methodology in arriving at his opinion was flawed.

Aerts is a metallurgical and mechanical engineer. His job is analyzing automotive components and accidents that happen to automobiles. His primary expertise concerns leaf-spring suspensions in trucks. In the five or six years preceding trial, he analyzed 150 failed leaf springs. He and his company began examining leaf springs at the request of a leaf-spring manufacturer that had a problem with its product. The manufacturer made 40-50% of all leaf springs in the United States, including the one on Ledesma’s truck.

The leaf spring is a stack of metal strips that parallel the length of the truck on each side of the truck. On top of each leaf spring is a spring plate, or tie plate, to which two u-bolts are bolted, one on each side of the leaf spring. The legs of the u-bolts extend through and above the tie plate, with the legs secured by a nut tightened onto each leg. There is also a pin that passes through the leaves up through the center of the tie plate. The axle housing rests in the base of the u-bolt, which is flattened to provide a stronger and more stable cradle for the housing.

Aerts opined that the axle displaced and the driveshaft dislodged because a u-bolt in the rear leaf-spring and axle assembly was defectively manufactured. He testified that the u-bolt was manufactured so that the legs of the u-bolt were of different lengths and the flattened part of the base of the u-bolt was off center. Aerts found that the nuts on the u-bolts on the spring assemblies were tightened well below factory standards, but said some of the loosening might be attributed to either use or the force of the collision.

Uneven leg length

Aerts testified that the unequal leg lengths of a u-bolt caused the nuts to be tightened unevenly on that u-bolt — thirteen threads down on one leg, and only ten threads down on the other — diminishing its ability to clamp and allowing vibration in the tie-plate holding together the leaf spring and the axle housing. This movement, he opined, eventually broke the center pin of the tie plate and allowed the axle to shift back enough to allow the drive-shaft to separate, fall, and strike the ground, pushing the axle back and causing Ledesma to lose control of the vehicle. Aerts based his theory on measurements of u-bolts, Ford specifications, and his experience.

Aerts measured the u-bolt that failed, a u-bolt that did not fail, and an exemplar u-bolt. He also looked at Ford’s design specifications. He found that the nuts on the u-bolt were not at the specified tightness; he found that they were torqued between 30 and 130 foot-pounds — well short of the 185 foot-pounds specified. On cross-examination, he admitted that this was not conclusive evidence of the tightness at the assembly line because they might have loosened during use or because of the accident. He found that the legs of the defective u-bolt differed from each other by 5 mm; Ford’s design specifications permit only a ±2 mm variance between the legs. Aerts testified that, although the u-bolts twisted, these measurements indicated that they did not stretch during the accident or, if they did, that they each stretched the same amount. He testified that no forces during the accident would cause the nuts to move along the bolt without stripping the threads. Because he found no stripped threads, he concluded that the position of the nuts on the bolts did not change between the manufacture and the accident. He concluded that the u-bolt was outside of Ford’s manufacturing specifications, rendering the truck defective.

Aerts theorized that the defective u-bolt allowed vibration that caused the assembly to fail. He noted dents in the tie plate holding the spring assembly together, indicating to him that the center pin of the assembly was vibrating and knocking the nut on top of the center pin against the tie plate. Aerts testified that the indentation pattern showed that the vibration had been going on for “quite a while” and fatigued the center pin. He said that, when the assembly is properly secured, there is no such vibration and no contact between the nut and the tie plate. He testified that, although the center pin remained in place after the accident, the top of the pin and the nut sheared off in a way inconsistent with a fatigue fracture. He said that the force of the driveshaft falling to the ground and pronging in the street would provide enough force to shear the center pin. He said that the truck did not show damage indicating sufficient force from the collision that would have sheared the pin; he conceded, however, that he is not an accident reconstructionist.

Ford contends that Aerts’s opinion is subjective belief and unsupported speculation because his foundational data was either suspect or absent. Ford complains that Aerts never inspected the torquing equipment that tightened the nuts on the u-bolt, had no idea how deep the sockets on the equipment were, and did not know whether it could tighten the nuts sufficiently despite the disparity in the length of the legs. Aerts conceded on cross-examination that Ford’s torquing equipment as described by counsel could accommodate any difference in the length of the legs of the u-bolt and tighten the nuts sufficiently to meet the specifications. He also conceded that the indentations on the tie plate were deeper on the front side, which Ford posits is consistent with the sudden impact with the Firebird. Ford’s expert, Dan May, testified that the sockets on the torquing equipment were deep enough (4 inches) to offset any inequality in the length of the u-bolt legs and that the wrench could tighten the nuts to the requisite torque. Ford complains that Aerts calculated the forces created by the accident without knowing how fast Ledesma was driving or how much damage was done to the Firebird. Ford also complains that Aerts reasoned backward from the conclusion that the u-bolt was defective, rather than forward from assembled facts.

Ford’s challenge to Aerts’s theory does not persuade us that the district court abused its discretion by admitting Aerts’s testimony. Ford’s attacks on Aerts’s theory of why the nuts were not tightened sufficiently do not undermine his observation that the nuts on the u-bolt were insufficiently tightened in a way that allowed the u-bolt to fail. To prove a manufacturing defect, Ledesma need not prove that the manufacturing process is flawed, only that it produced a flawed product. See Ridgway, 135 S.W.3d at 600; see also Parsons v. Ford Motor Co., 85 S.W.3d 323, 329-30 (Tex.App.-Austin 2002, pet. denied). The plaintiff can prove the condition of the product by direct evidence, circumstantial evidence, or inferences. See Ridgway, 135 S.W.3d at 601; Torrington, 46 S.W.3d at 844-45. Aerts measured the failed u-bolt and found that the legs were uneven and that the nuts were not tightened the same depth on those legs or as on other bolts. He found that, after the accident, the nuts were not at the levels of tightness set by Ford’s specifications; although he conceded that the nuts might possibly have loosened during use or the accident, he saw no signs (such as stripping of threads) that the nuts moved suddenly as a result of the accident. He also observed the indented tie plate and concluded that it showed that the rear assembly was loose and vibrating for. quite a while before the accident. He also noted that the center pin of the tie plate sheared off, indicating a sudden failure. Aerts theorized that the deviations from manufacturing specifications, the signs of unusual wear, and the nature of the detachment of the driveshaft all show that the u-bolt on this three-month-old truck was defectively manufactured in a way that caused the accident. Aerts does not appear to have tailored this accumulated data to support his opinion. Cross-examination of Aerts and May’s testimony cast some doubt on Aerts’s theory, but do not render it so unreliable as to make the district court’s admission of Aerts’s testimony an abuse of discretion.

Off-center flattened base of u-bolt

Aerts also testified that the manufacturing asymmetry of the u-bolt manifested in a flattened portion of the base of the u-bolt being off-center by three-quarters of an inch. He testified that flattening the part of the u-bolt surrounding the axle housing helps it mate better with the axle housing and better bear that load. He stated that the flat part being off center caused it to mate improperly with the axle housing. Aerts theorized that the round portion of the u-bolt could have indented the axle housing and relaxed the u-bolt nut torque; he stated alternatively that the u-bolt could have been deformed by the axle, leading to the same reduction in the u-bolt’s clamping power. He asserted that this, by itself or in conjunction with the unequal leg length of the u-bolt, could have allowed the axle to move away from the spring assembly and allowing the drive-shaft to disengage.

Under cross-examination, Aerts admitted that he did not know whether the axle housing was actually indented. He conceded that the axle housing could have been hard enough to resist indentation, and that he did not know how hard the axle housing was. He never looked at Ledesma’s truck’s axle housing. Ford’s expert, Dan May, inspected the truck and testified that he did not see any indentation on the axle housing.

Ford argues that Aerts’s theory regarding the effect of the off-center flattening of the u-bolt lacks solid foundation. Ford argues that his failure to research the hardness of the axle housing or to examine the axle itself undermines his theory. Ford contends that the uncontroverted testimony that the axle was undented demonstrates the invalidity of Aerts’s theory.

We conclude that Ford has not shown an analytical gap sufficient to make the district court’s admission of this part of Aerts’s testimony error. Evidence casting doubt on whether Aerts’s theory was realized in this case may affect the credibility of his opinion, but it does not demonstrate that the district court abused its discretion by finding that his theory regarding the effect of an asymmetrically flattened u-bolt was rehable. See Robinson, 923 S.W.2d at 568.

David Hall

Hall testified as Ledesma’s accident reconstruction expert based largely on his review of photographs. He said that marks on the pavement and the damage to the vehicles supported Ledesma’s version of events. Hall testified that his testimony was based on his experience and training, and that his methods were acceptable in the field of accident reconstruction.

Hall said that an enlargement of a photo of the accident scene, taken the day after the accident by Ledesma’s father with a one-use camera, showed a mark on the pavement that Hall believed was consistent with “pronging” by the driveshaft. He conceded that he could not tell how far from the Firebird the marks were because he did not know the focal length of the camera that took the picture. Hall opined that the mark was in advance of the Fire-bird in the direction from which Ledesma’s truck was traveling, thus supporting Le-desma’s view that the driveshaft disengaged before the truck hit the Firebird. Hall did not visit the site until long after the accident and after the marks on the pavement shown in the picture had disappeared. He did not test to see how easy it was to make a mark on the road.

Hall said that the photo of the damage done to the Firebird indicated to him that the impact was at a low speed and that the fender on the side of the truck — not the tire or the wheel — hit the Firebird. He never personally examined the truck or the Firebird involved in the accident, but he did look at a Firebird with a similar body style. He noted that the truck’s fender was made of plastic and the exemplar Firebird was made of metal. Hall testified that the low speed of the collision supported his view that the driveshaft dislodged before the accident, because the impact forces were not sufficient to have caused the driveshaft to dislodge.

Ford contends that Hall’s testimony contains too many assumptions and logical leaps to be rehable. Ford complains that his conclusion about the prong mark was based on his view of a mark in a grainy photo. Ford attacks the reliability of Hall’s assertion that there was actually a mark on the pavement (rather than a flaw in the film) and his decision that this mark was made by the truck’s driveshaft. Ford asserts that Hall’s testimony is further undermined by his failure to take measurements, prepare diagrams, or otherwise reconstruct the accident. Ford noted that a police officer who responded to the accident recalled no gouge marks in the pavement.

Ford also attacks Hall’s testimony about the impact on the Firebird. Ford complains that Hall’s failure to examine either vehicle renders speculative his calculations based on the depth of indentation of the Firebird. Ford also complains that Hall failed to consider damage to the Firebird not evident from the pictures, including the left wheel and axle housing being bent, the axle tube and seam being broken, as well as damage to the left rear control arm, the panhard bar, and the left rear shock absorber — all of which amounted to $2568 in repairs. Ford criticizes Hall’s reliance on the picture despite this repair evidence. Ford contends that this deliberate refusal to consider contrary evidence renders Hall’s opinion unreliable.

We do not find any error in the admission of Hall’s testimony. Ford’s criticisms go to the credibility, not the reliability of Hall’s theories. He was subject to vigorous cross-examination regarding the accuracy of his opinions. We find no abuse of discretion in its admission.

Dan May

May testified for Ford regarding its manufacturing process, but the court prohibited him from offering opinions related to accident reconstruction because he was not trained in accident reconstruction. The court also prevented him from giving his opinion that the damage to the u-bolt demonstrated that it broke because of a collision, not simple failure.

Ford argues that the law does not require special training in accident reconstruction and that it need only show that an expert possesses special knowledge on the matter on which he proposes to give an opinion. See Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex.1996). Ford contends that May’s engineering training (bachelor’s and master’s degrees in mechanical engineering) and his experience in the design and manufacture of trucks (31 years at Ford, 25 of which were spent as a “truck engineer”) qualify him to give an expert opinion. Ford particularly touts his years planning the manufacture of leaf-spring and rear-axle assemblies in medium and heavy trucks similar to the parts at issue here and his more than six years as a design analysis engineer, which required him to investigate approximately 120 “events” to determine the root cause of any failure in the vehicles. Ford asserts that this was harmful because May’s testimony would have supported Ford’s theory that the u-bolt failed as a result of direct contact between the tires of the truck and the Firebird, and that the driveshaft did not disengage until after the collision.

We find no abuse of discretion in the exclusion of May’s testimony regarding the cause of the axle displacement. May undisputedly lacks training in accident reconstruction. He has some practical experience in his job with Ford, but his testimony contained sufficient uncertainty to support the court’s decision. May did not explain how the relatively minor external damage to both vehicles squared with his theory that the tire-to-tire collision caused the axle to displace. He repeatedly insisted that the u-bolt stretched during the accident sequence, even though he did not measure it, before eventually conceding that he had no way of knowing whether it stretched. May had no test data to know the likelihood that the collision could cause the axle to displace.

The standard of review defeats Ford’s complaint. The abuse-of-discretion standard requires that we let court decisions stand so long as the court acted with reference to guiding rules or principles. Robinson, 923 S.W.2d at 558. We may not reverse for abuse of discretion merely because we disagree with the decision of the trial court. See id. The range of discretion means that the same record could support affirming opposite conclusions on the same expert. In this case, no abuse of discretion is shown.

The court’s charge

Ford contends that the district court gave legally incorrect definitions of manufacturing defect and producing cause in the jury charge. Although the court’s definitions track those provided in the pattern jury charge, Ford contends that the pattern jury charge is incorrect. Whether definitions used in the charge misstate the law is a legal question that we review de novo. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2003). But we reverse for error in a civil jury charge only if, in light of the entire record, the error probably caused the rendition of an improper judgment. Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995); see also Tex. R.App. P. 44.1. An incorrect instruction is more likely to cause reversible error with sharply contrasting evidence in a contested trial. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001).

Manufacturing defect

The supreme court has written that “[a] manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.” Ridgway, 135 S.W.3d at 600. A plaintiff must prove that the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiffs injuries. Id.

Ford asserts that the court misstated the law because it omitted language that distinguishes manufacturing defects from other conditions rendering a product unreasonably dangerous. The court asked, ‘Was there a manufacturing defect in the 1999 Ford F-350 pickup truck at the time it left Ford’s possession that was a producing cause of the June 5, 1999 incident in question?” The district court then provided the following definition:

A “defect” means a condition of the product that renders it unreasonably dangerous. An “unreasonably dangerous” product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product’s characteristics.

Ford requested that manufacturing defect be defined as “a physical departure from the product’s intended design that renders it unreasonably dangerous.” Ford contends that the omission of language requiring proof of deviation from the manufacturer’s plans or specifications omits an essential element of Ledesma’s cause of action on which he bore the burden of proof. Without this element, Ford argues, Ledesma cannot recover from Ford for a manufacturing defect.

The issue presented, therefore, is whether the district court misstated the law by using the term “condition” in the definition instead of Ford’s more detailed requested language: “physical departure from the product’s intended design.” The El Paso court recently faced a strikingly similar challenge to an almost identical jury instruction for which the manufacturer proposed, but was denied, a similar alternative definition of manufacturing defect. Cooper Tire & Rubber Co. v. Mendez, 155 S.W.3d 382, 390-91 (Tex.App.-El Paso 2004, pet. filed). The El Paso court con-eluded that the more specific definition requested by the manufacturer was not required by Texas law. Id. at 391. We find no case holding that this charge is erroneous.

Even if the definition were erroneous, we find no harm in this case. Although the evidence contrasts sharply, the clarity of the contrast and the nature of the instructions given and denied makes the error, if any, harmless. Manufacturing defect is the only theory that Ledesma presented. In fact, Ford directly asked Aerts, “The opinion that you’re offering here today is a manufacturing defect related to the U-bolt, is that right?” Aerts responded, ‘Tes.” The only evidence of defect presented to the jury is the deviation of the u-bolt from specifications, which is the essence of manufacturing defect under Ford’s definition. Ledesma’s theories of the accident rely on the manufacturing defect permitting the driveshaft to dislodge abruptly and cause the accident. The jury found Ledesma’s evidence of defect credible and, as a result, found a manufacturing defect. The omission of the words limiting the nature of the defect did riot affect the verdict because the only evidence of defect was that the truck as manufactured departed physically from the manufacturer’s specifications. Even if the district court erred by rejecting Ford’s requested definition, the error did not harm Ford.

Producing cause

A producing cause is “a substantial factor which brings about the injury and without which the injury would not have occurred.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex.1995). The court defined producing cause in accord with the pattern jury charge as “an efficient, exciting, or contributing cause that, in a natural sequence, produces the incident in question.” Ford objected that this definition does not accurately state the law. Ford asserts that the charge given is wrong because it erroneously replaces “substantial” with the words “efficient,” “exciting,” and “contributing” to modify the term “cause.” Ford also complains that the definition given did not inform the jury that the cause must be one without which the event would not have occurred. In sum, Ford contends that the court should have told the jury that it must find causation-in-fact. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995).

Ford ignores supreme court precedent using language almost identical to that used in the charge:

Producing cause requires that the acts be both a cause-in-fact and a “substantial factor” in causing the injuries. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995); Prudential Ins. Co. v. Jefferson Assocs. Ltd., 896 S.W.2d 156, 161 (Tex.1995). A producing cause is an efficient, exciting, or contributing cause, which in the natural sequence of events, produces injuries or damages. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995).

Brown v. Bank of Galveston, Nat’l Ass’n, 963 S.W.2d 511, 514 (Tex.1998). Even in the cases cited by Ford, there is no indication that the supreme court has rejected the “efficient, exciting, or contributing” definition quoted in Brown. See generally, Trinity Universal Ins. Co. v. Bleeker, 966 S.W.2d 489, 491 (Tex.1998) (decided less than one month after Brown); Doe, 907 S.W.2d at 481. A case Ford uses to define producing cause as causation-in-fact uses the “efficient, exciting or contributing” definition of producing cause. See Union Pump, 898 S.W.2d at 775. Ford cites no authority rejecting the definition given.

We find no error. The district court’s requirement that the cause be one that “produces the incident” is not discernibly different from Ford’s request that the cause be one “without which the event would not have occurred.” Although the terms “efficient, exciting, or contributing cause” do not necessarily conjure precisely the same meaning as the term “substantial factor,” they do not clearly differ significantly; more important, the supreme court has used both to define producing cause. See Trinity, 966 S.W.2d at 491; see also Brown, 963 S.W.2d at 514. Absent a supreme court declaration that “efficient, exciting, or contributing cause” is improper, the district court did not err by using that definition. See Carousel’s Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 399 (Tex.App.-Houston [1st Dist.] 2004, pet. filed) (using Brown definition); see also Compton & Adams Warehouse, Inc. v. Powers, No. 04-04-00099-CV, 2004 WL 2346293, *1-*2, 2004 Tex.App. LEXIS 9192, at *4 (Tex.App.-San Antonio Oct. 20, 2004, no pet.) (mem.op.).

Legal sufficiency of the evidence

Ford contends that the evidence is legally insufficient to support the verdict. A party attacking the legal sufficiency of an adverse finding of an issue on which it did not have the burden of proof must demonstrate on appeal that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a no-evidence issue, we are to consider only the evidence favoring the finding, disregarding all direct and circumstantial evidence to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002); Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). We must determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

Ford’s central contention regarding the lack of evidence is that Ledesma’s experts’ testimony was unreliable and provided no evidence of a manufacturing defect. We have discussed these arguments above. We have concluded that the testimony was sufficiently reliable to support its admission. It is likewise some evidence to support the jury’s verdict.

Ledesma’s testimony provides some evidence to support his theory of manufacturing defect. Evidence of malfunction can provide circumstantial evidence of manufacturing defect. General Motors Corp. v. Hopkins, 548 S.W.2d 344, 349-50 (Tex.1977); see also Ford Motor Co. v. Gonzalez, 9 S.W.3d 195, 199 (Tex.App.-San Antonio 1999, no pet.); Sipes v. General Motors Corp., 946 S.W.2d 143, 155 (Tex.App.-Texarkana 1997, writ denied). The circumstantial evidence must provide more than mere suspicion. Ridgway, 135 S.W.3d at 601. In Ridgway, the supreme court found that circumstantial evidence of the source of a vehicle fire provided no evidence of a manufacturing defect. Id. But the court’s determination centered on facts not present here: the truck had been driven 54,000 miles by previous owners who had modified and repaired the truck, the plaintiff testified only that a fire occurred, and the expert testified that he suspected the electrical system was to blame and could not rule out the fuel system as a cause. Id. Here, Ledesma testified that he was the sole owner, that he had driven the truck 4100 miles in his three months of ownership, and that the truck had not been repaired or modified. In addition to evidence that the driveshaft disengaged, there was evidence that it happened suddenly and while the truck was driving down a clear street. Ledes-ma’s experts pinpointed the u-bolt that did not meet manufacturing specifications as the cause, and the disengagement of the driveshaft under the conditions Ledesma described provide some evidence of a manufacturing defect. See Parsons v. Ford Motor Co., 85 S.W.3d 323, 329-30 (Tex.App.-Austin 2002, pet. denied).

Ford provided eyewitness testimony that contradicted Ledesma’s version of events and expert testimony contradicting his experts’ testimony. The jury rejected Ford’s version and believed Ledesma’s evidence. More importantly, the evidence contrary to the verdict is not within the scope of our review under the legal sufficiency standard. See Lenz, 79 S.W.3d at 13.

The record contains more than a scintilla of evidence that Ledesma’s truck differed, in its construction or quality, from the specifications in a manner that rendered it unreasonably dangerous. The record also contains evidence that this defect caused this accident and Ledesma’s damages.

CONCLUSION

The district court did not abuse its discretion by admitting the testimony of Le-desma’s experts and excluding some of the testimony of Ford’s expert regarding the accident. The instructions challenged were not erroneous and, even if they were, did not harm Ford. The record contains legally sufficient evidence to support the judgment. We affirm the judgment.

Concurring Opinion by Justice PEMBERTON.

OPINION

BOB PEMBERTON, Justice,

concurring.

I join in the judgment. In light of the Texas Supreme Court’s recent guidance on the admissibility of expert testimony, Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 2004 Tex. LEXIS 1429 (Tex.2004), I have reservations regarding the district court’s admission of some of the expert testimony Ford challenges. See also Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). However, even under Volkswagen, I agree with the majority that the district court did not abuse its discretion in permitting Ledes-ma’s expert Geert Aerts to testify regarding his theory that uneven u-bolt leg lengths eventually caused Ledesma’s truck axle and driveshaft to separate, causing the accident.

Based on this and other admissible evidence in the record, I would conclude that any error in admitting other expert testimony was harmless and affirm the judgment.

      . Ledesma's lawsuit did not involve any claim for bodily injuries.

      . The police officer who investigated the accident testified that his investigative report listed no eyewitnesses to the accident, although he did talk to the owners of the parked cars, including Pylant.


source: Caselaw Access Project

author: SAM GRIFFITH, Justice.

license: Public Domain

text:
    John Wesley HENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 12-03-00185-CR.
    Court of Appeals of Texas, Tyler.
    May 25, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Douglas Scott Williams, Athens, for appellant.
    Donna R. Bennett, Athens, Shawn McDonald, for state.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

Appellant John Wesley Henson appeals his convictions for attempted indecency with a child and criminal solicitation of a minor. In five issues, he argues that the trial court improperly limited voir dire and empaneled biased jurors, the evidence is both legally and factually insufficient to support his convictions, and he was twice punished for the same alleged criminal act. We affirm in part and reverse and render in part.

Background

Appellant was charged by indictment with attempted indecency with a child and criminal solicitation of a minor. The indictment included two enhancement paragraphs for prior felony convictions. Appellant pleaded “not guilty” to the charges and “not true” to the enhancement paragraphs. The matter proceeded to a jury trial, and Appellant elected to have the jury assess his punishment.

The jury found Appellant guilty of both offenses charged. After hearing punishment evidence, the jury found that the enhancement paragraphs were true and sentenced Appellant to imprisonment for life as an habitual offender. Appellant filed a motion for new trial, which was denied. This appeal followed.

Voir Dire

In his first issue, Appellant contends that the trial court erred by disallowing proper questions by Appellant’s attorney. These questions, according to Appellant, not only went to issues relating to the exercise of challenges for cause (bias against Appellant), but also precluded him from intelligently exercising his peremptory challenges. The State contends that the trial court’s ruling was proper or, in the alternative, that Appellant has not shown harm.

Standard of Review

The trial court has broad discretion over the jury selection process. Woods v. State, 152 S.W.3d 105, 108 (Tex.Crim.App.2004). The primary reason for this is that voir dire could go on indefinitely without reasonable limits. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002).

The propriety of a particular question posed during voir dire is left to the discretion of the trial court and reviewed for an abuse of discretion. Id. A trial court abuses its discretion only when a proper question about a proper area of inquiry is prohibited. Woods, 152 S.W.3d at 108. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case. Id. However, an otherwise proper question is impermissible if it attempts to commit the juror to a particular verdict based on the facts. Id.

The Record

During voir dire, defense counsel addressed the burden of proof in a criminal case and asked the following question: “Now, who all here — let’s start with this. Who all here thinks right now that Mr.— Mr. Henson is guilty? Who feels that right now? If I had to vote right now.” In response to counsel’s question, nineteen venire members out of seventy-three stated that if they had to vote at that time, they would err on the side of the State. As counsel attempted to proceed with her inquiry, the following exchange occurred:

[DEFENSE COUNSEL]: Okay. So if it’s 51 percent in your mind — correct me if I’m wrong — but any of those that raised their hand, if it’s 51 percent that you think that he’s guilty, that’s enough — that’s enough to find guilty. Would anybody who raised their hand disagree with that?
[PROSECUTOR]: Judge, I’m going to object. I think that 51 percent can be beyond a reasonable doubt as far as the jury is concerned.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Is that what — I’m just asking the question. I’m not passing judgment on you. Anybody — if that is what you’re saying, 51 percent. Is there anybody— phrased that way, is there anybody else that wants to join this group to say if it were 51 percent that you thought he was guilty that you would say guilty?
[PROSECUTOR]: Judge, I’m going to again object. I don’t think that’s a proper question. It’s asking the jury to draw a judgment on the case. They don’t know any facts, and I don’t think that’s strike for cause if they answer yes.
[DEFENSE COUNSEL]: Judge, I’m trying to find out in their minds how strong is that burden of beyond a reasonable doubt.
THE COURT: Well, I’m going to sustain the objection.

Questions about Burden of Proof

In a criminal case, the parties are entitled to question the venire to determine how the jury would apply the State’s burden of proof. Woolridge v. State, 827 S.W.2d 900, 906 (Tex.Crim.App.1992). The State’s burden of proof is an issue applicable to any criminal case because the factfinder must apply that standard when determining guilt. Id. at 904. Moreover, a prospective juror’s understanding of reasonable doubt “becomes more crucial to the intelligent exercise of either the State’s or the defendant’s peremptory challenges because there is no definition to guide what could be a juror’s skewed perception of the term.” Id. Great latitude should be allowed a party interrogating a venire to enable his counsel to intelligently determine whether to exercise his right of a peremptory challenge, which is a right that should not be unnecessarily limited. Id. at 905 (citing McGowen v. State, 163 Tex.Crim. 587, 290 S.W.2d 521, 524 (Tex.Crim.App.1956)).

Here, after nineteen venire members stated that they would find Appellant guilty if asked to vote before hearing any evidence, defense counsel attempted to inquire further about how the jury would apply the State’s burden of proof. Questions about the State’s burden of proof are proper; therefore, defense counsel’s questions were proper. See id. at 904. Although the prosecutor’s voir dire examination covered the burden of proof, defense counsel had not asked any questions on that subject. Moreover, the prosecutor did not object to the form of defense counsel’s question. Consequently, we hold that the trial court abused its discretion when it prohibited defense counsel’s further inquiry about the State’s burden of proof. See Woolridge, 827 S.W.2d at 904 (abuse of discretion where inquiry about burden of proof was proper, not repetitious, and not in an improper form).

Harm Analysis

Because we have determined that the trial court abused its discretion by prohibiting proper questioning during voir dire, we must conduct a harm analysis to determine whether the error warrants reversal of the conviction. Gonzales v. State, 994 S.W.2d 170, 171-72 (Tex.Crim.App.1999); see also Tex.R.App. P. 44.2. Defense counsel’s question was directed to identified members of the venire — those who said they would err on the side of the State — and we therefore apply the harm analysis that is traditionally applied to the erroneous denial of a defendant’s challenge for cause. See Janecka v. State, 987 S.W.2d 456, 470-71 & 471 n. 9 (Tex.Crim.App.1996). For the erroneous denial of a challenge for cause, a defendant is harmed only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.Crim.App.1992).

Here, it is uncontroverted that Appellant used all of his peremptory challenges. However, the record does not reflect that Appellant requested additional peremptory challenges. Moreover, although Appellant identifies three objectionable jurors in his brief, he did not do so in the trial court. Therefore, Appellant has failed to show harm from the trial court’s error. Accordingly, Appellant’s first issue is overruled.

Juror Bias

In his second issue, Appellant urges that the trial court erred by allowing jurors Middleton, Yates, and Tidmore to be empaneled in the case after it was determined they had a bias in favor of the State and against Appellant.

Discussion

“Bias” has been defined as “an inclination toward one side of an issue rather than to the other ... [which] leads to the natural inference that [a juror] will not or did not act with impartiality.” Anderson v. State, 633 S.W.2d 851, 853 (Tex.Crim.App. [Panel Op.] 1982) (citing Compton v. Henrie, 364 S.W.2d 179 (Tex.1963)). “Bias” has also been characterized as an inclination toward one party. 43 George E. Dix & Robert 0. Dawson, Texas Practice: Criminal Practice and Procedure § 35.71 (2001). Bias, by itself, is not sufficient for a challenge for cause. See Anderson, 633 S.W.2d at 853. Instead, an appellant must show that the juror was biased to the extent that he or she was incapable of being fair. See id. Ordinarily, counsel bears the burden of asking those questions during voir dire that are calculated to bring out that information which might indicate a juror’s inability to be impartial. Amstrong v. State, 897 S.W.2d 361, 364 (Tex.Crim.App.1995).

Here, defense counsel introduced the subject of the State’s burden of proof and then asked, “And if we took a vote right now, what would you say?” In response, nineteen venire members, including Middleton, Yates, and Tidmore, responded that they would err on the side of the State. Appellant maintains that by this answer, the three jurors exhibited a bias against him. Appellant acknowledges that defense counsel did not object to these jurors being empaneled.

As a general rule, the failure to timely object at trial waives error on appeal. Boyd v. State, 811 S.W.2d 105, 113 (Tex.Crim.App.1991). Even constitutional error can be waived by failing to object. Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000). An exception applies where the error is so egregious and created such harm that the defendant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). In that instance, reversible fundamental error occurs and can be raised for the first time on appeal. See id. Appellant maintains that this exception applies here, arguing that “the record so conclusively establishes that Appellant did not receive a fair trial from a fair and impartial jury that his constitutionally guaranteed rights were violated.”

We first note that although Appellant asserts generally that the record “conclusively establishes” a constitutional violation, he does not develop his argument nor does he provide record cites or any authority to support his conclusion. See Tex. R.App. P. 38.1(h). He also does not cite any authority, nor or we aware of any, supporting his statement that an answer such as the one complained of here establishes, as a matter of law, that a venire member is biased against the accused. Cf. Bryant v. State, No. 14-99-01373-CR, 2002 WL 27573, at *2 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (not designat ed for publication) (venire member’s statement that he had “a tendency to lean toward police officers before he heard one word” not bias as a matter of law); Muniz v. State, 851 S.W.2d 238, 258 (Tex.Crim.App.1993) (venire member’s statement that he would have to be fifty-one percent certain or more before he could return affirmative answers to punishment issues was internal conception of what “beyond a reasonable doubt” would mean and not a showing of bias against appellant). Consequently, Appellant has waived this issue. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App.2000) (concluding appellant waived facial validity challenge to penal code provision by failing to support argument with authority and failing to adequately develop his argument); see also Tex.R.App. P. 38.1(h). Even absent waiver, however, Appellant’s argument still fails.

We first note that defense counsel’s question pertained only to how the venire would vote before hearing evidence and does not address whether any member would be unable, after hearing the evidence, to apply the presumption of innocence or the State’s burden of proof. Nonetheless, Appellant contends that a tendency to err on the side of the State reflects bias. However, in our view, it could also reflect that the venire members perceived no relationship between defense counsel’s question and their duties once they heard the evidence. Therefore, even if the answer showed bias (an inclination toward one side or the other), it does not “lead[ ] to the natural inference that [Middleton, Yates, and Tidmore] ... did not act with impartiality.” See Anderson, 633 S.W.2d at 853.

The record reveals that the prosecutor informed the venire about the State’s burden of proof and the presumption of innocence. He then asked, “Is everybody comfortable with that? Is everybody comfortable with presuming him to be innocent and holding me to the correct standard? Everybody okay with that?” No venire member responded in the negative. At trial, the State presented direct, uncon-troverted evidence of Appellant’s guilt. Finally, the jury charge included the following paragraphs:

The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant. The prosecution has the burden of proving the defendant guilty, and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that the defendant has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial.

These portions of the charge properly instructed the jury on the State’s burden of proof and the presumption of innocence. We must presume that the jury, including Middleton, Yates, and Tidmore, followed these instructions. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex.Crim.App.2003). Nothing in the record indicates they did not. Appellant’s second issue is overruled.

Sufficiency of the Evidence

In his third issue, Appellant contends the evidence is legally insufficient to support his convictions. In his fourth issue, he contends the evidence is factually insufficient.

Standard of Review

In reviewing a challenge to the legal sufficiency of the evidence, we review 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. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). In reviewing the evidence for legal sufficiency, an appellate court does not reweigh the evidence or substitute its judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). The jury is the exclusive judge of 1) the facts, 2) the credibility of the witnesses, and 3) the weight to be given to the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). As factfinder, a jury may reject any or all part of a witness’s testimony. Id.

In conducting a factual sufficiency review, an appellate court must review all of the evidence, but not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App.2000). We must determine whether a neutral review of all of the evidence, both for and against the challenged finding, demonstrates that a rational jury could have found guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not intrude upon the factfinder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997).

Attempted Indecency With a Child

A person commits indecency with a child if, with a child younger than seventeen years and not the person’s spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. Tex. Pen.Code Ann. § 21.11(a)(1) (Vernon 2003). “Sexual contact” includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child. Id. § 21.11(c)(1). A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a). An attempt implies both an intent and an active effort to carry out and consummate the intent or purpose. Flores v. State, 902 S.W.2d 618, 620 (Tex.App.Austin 1995, pet. ref'd). Thus, “attempt” is more comprehensive than “intent.” Id. Circumstantial evidence may be used to prove an essential element of the offense charged. See Wilson v. State, 654 S.W.2d 465, 467 (Tex.Crim.App.1983).

Appellant first contends that there is no evidence that J.L. was younger than seventeen on September 16, 2002, the date of the incident, or that J.L. was not Appellant’s spouse. However, the record includes J.L.’s testimony that he was sixteen years old on September 16, 2002. J.L. also testified that he had first met Appellant on September 13, 2002. This statement supports an inference that J.L. was not Appellant’s spouse. See Meyers v. State, 737 S.W.2d 6, 8 (Tex.App.-Corpus Christi 1987, no pet.).

Appellant also contends that the record contains no evidence that he did any act amounting to more than mere preparation as required by section 15.01(a). The court of criminal appeals has recognized that there is an “imaginary line” that separates mere preparatory conduct, which is usually noncriminal, from an act that tends to effect the commission of an offense, which is always criminal conduct. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). This necessarily creates a “gray area” within which the imaginary line is to be drawn. McCravy v. State, 642 S.W.2d 450, 460 (Tex.Crim.App.1980). The legislature did not intend to draw this line at the last proximate act. Id. Therefore, the fact that an appellant could have taken further action without actually committing the offense does not render his actions nothing more than mere preparation. Sorce v. State, 736 S.W.2d 851, 857 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). Where the imaginary line is to be drawn depends upon the nature of the crime attempted and must be considered on a case-by-case basis. See Gibbons v. State, 634 S.W.2d 700, 706-07 (Tex.Crim.App.1982).

The record reveals that Appellant was seventy-seven years old and in poor health on the date of the offense alleged. J.L. was a junior in high school. At trial, J.L. testified that on September 13, 2002, he was working at Food Rite in Seven Points and met Appellant for the first time. Appellant asked J.L. if he wanted to make some money by helping him with some work at his house, and J.L. responded, “I guess.” Appellant then gave J.L. directions to his house, and J.L. wrote them down. J.L. then carried Appellant’s groceries out for him, and Appellant asked him whether he was going to come over and do some work. J.L. replied that he “didn’t know” and that he would try.

J.L. testified that the following day (September 14), which was a Saturday, Appellant was waiting in the parking lot for him when he arrived for work. J.L. parked his vehicle about one hundred yards from the front door of the store, where all Food Rite employees park. Appellant was parked two or three spaces to the right, although there were “plenty” of spaces closer to the door where Appellant could have parked. Appellant said J.L.’s name and called him over to his vehicle. Appellant asked J.L. why he did not show up that morning, and J.L. told him he had work to do around his own house. He also told him he had to get to work and went inside the store to clock in. Appellant came inside the store and made a purchase. J.L. carried Appellant’s groceries out, and Appellant again asked J.L. if he would come to his house to do some work. J.L. told him “probably not” because he had to work the rest of the weekend, and Appellant drove away.

Two days later (September 16), J.L. went to work and parked in the usual area. He went inside the store, clocked in, and noticed Appellant in the store about five to six minutes later. According to J.L., Appellant said hello and asked him if he was going to come over. J.L. told him that he would not be able to “make it.” J.L. carried Appellant’s groceries to his vehicle, which was parked at the south end of the store. J.L. had not seen Appellant’s vehicle parked there before and stated that Appellant’s vehicle was approximately two hundred yards from the front of the store. At the time, J.L. noticed about four or five open parking spaces at the front of the store.

When they reached Appellant’s vehicle, Appellant instructed J.L. to put the groceries on the passenger’s side. Appellant got in on the driver’s side and, as J.L. opened the passenger door, Appellant asked him to get in the truck because he wanted to talk to him for a minute. J.L. informed Appellant that he had to get back to work. J.L. testified that Appellant then asked him if he wanted to make “a quick ten bucks.” J.L. told him “he did not” and that he had to get back to work. Appellant then said, “Well, I can’t get stimulation of my male area because of my diabetes so I want to know if I can jack you off for $10.00.” J.L. immediately set Appellant’s groceries on the ground, closed the vehicle door, said “no” in response to Appellant’s question, and walked back inside the store.

The acts recounted above that preceded Appellant’s request for J.L. to participate in a sexual act amounted to no more than “mere preparation.” However, when Appellant offered J.L. ten dollars “if I can jack you off ....,” he crossed the imaginary line between preparation and attempt. Therefore, a rational factfinder could have found Appellant guilty beyond a reasonable doubt of attempted indecency with a child. We hold that the evidence was legally sufficient to support Appellant’s conviction. Appellant’s third issue, insofar as it pertains to attempted indecency with a child, is overruled.

According to the record, the defense offered no evidence to contradict any of the State’s witnesses. For this reason, and in light of the State’s evidence discussed above, we hold that the evidence supporting the verdict is factually sufficient to support Appellant’s conviction for attempted indecency with a child. See Pegues v. State, No. 14-99-00378-CR, 2000 WL 1028968, at *3 (Tex.App.-Houston [14th Dist.] July 27, 2000, pet. ref'd) (not designated for publication) (since evidence was legally sufficient, evidence was also factually sufficient where defense offered no evidence to contradict the testimony of the State’s witnesses) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)). Appellant’s fourth issue, insofar as it pertains to attempted indecency with a child, is overruled.

Criminal Solicitation of a Minor

The indictment in the instant case alleges, in pertinent part, that Appellant “requested], command[ed], or attempted] to induce [J.L.] to engage in specific conduct, to wit: to allow [Appellant] to touch the genitals of [J.L.] that under the circumstances surrounding the conduct of [Appellant], as [Appellant] believed them, to be, would have constituted indecency with a child by sexual contact .... ” (emphasis added). Appellant contends that the record contains no evidence that Appellant believed J.L. was younger than seventeen years of age. See Tex. Pen.Code Ann. § 21.11(a)(1) (indecency with a child occurs where the “child” is younger than seventeen years). Therefore, he concludes, the evidence is both legally and factually insufficient to sustain his conviction for criminal solicitation of a minor.

A person commits an offense if, with intent that indecency with a child be committed, he requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute the commission of indecency with a child. See Tex. Pen.Code Ann. § 15.031(a) (Vernon 2003). To determine whether the actor intended to commit indecency with a child, we must look to the specific conduct the actor requested, including the circumstances surrounding the conduct as the actor believed them to be. See id.; see also Hobbs v. State, 548 S.W.2d 884, 887 (Tex.Crim.App.1977) (op. on reh’g) (construing Texas Penal Code section 15.03, pertaining to criminal solicitation).

The record reveals that J.L. met Appellant on September 13, 2002, and the alleged criminal solicitation occurred on September 16. However, the record does not show that Appellant asked J.L. his age or that J.L. told Appellant his age. Nor does the record contain a description of J.L.’s physical appearance, his demeanor, or any other characteristic from which an inference could be drawn that Appellant believed J.L. was younger than seventeen at the time of the offense.

J.L. testified that on September 14, he went to work after school and that Appellant was waiting on him in the parking lot. Sue Yakeseh, assistant manager at Food Rite, referred to the Food Rite employees as “boys” and “kids.” She described J.L.’s job responsibilities as doing what needed to be done, including the duties of a “[slack boy.” Dusty Wyman Bryant, a former Food Rite employee, testified that he had a conversation with Appellant on September 25, 2002 during which Appellant asked him if he was still in school. This testimony supports an inference that Appellant knew some of the Food Rite employees were in school. However, the evidence does not support an inference that all Food Rite employees were in high school or that Appellant believed J.L. was younger than seventeen.

In its brief, the State does not suggest that Appellant has overlooked any evidence in the record. Instead, it urges that “the judge and jury were in a much better position to view the victim and his appearance and in a much better position to determine whether the defendant was aware the victim was younger than seventeen (17) years of age by circumstantial evidence.” We recognize that the jury, as trier of fact, is permitted to make reasonable inferences from the evidence. See Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App.2001). However, where an appellant challenges the legal sufficiency of the evidence to support an element of the crime for which he was convicted, we must view all of the evidence in the light most favorable to the verdict and then determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found this element of the crime beyond a reasonable doubt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004). We may not engage in supposition to substitute for what has actually found its way into the appellate record. Cockrum v. State, 758 S.W.2d 577, 585 n. 7 (Tex.Crim.App.1988). Therefore, we may not assume that because the jury found Appellant guilty, J.L.’s appearance at trial supported an inference that Appellant believed J.L. to be younger than seventeen years on the date of the offense charged.

In the instant case, after reviewing the record in the light most favorable to the verdict, we agree with Appellant that a rational trier of fact could not have found that Appellant believed J.L. to be younger than seventeen years. Consequently, we hold that the evidence is legally insufficient to support Appellant’s conviction and sustain his third issue relating to criminal solicitation of a minor. Because the evidence is legally insufficient to support the conviction, we need not address the portion of Appellant’s fourth issue pertaining to factual sufficiency.

Double Jeopardy

In his fifth issue, Appellant asserts that he was twice punished for the same criminal act in violation of the double jeopardy provisions of the United States and Texas Constitutions.

In Burke v. State, 80 S.W.3d 82 (Tex.App.-Fort Worth 2002, no pet.), the appellant was convicted of reckless aggravated assault and intoxication assault. On appeal, he challenged both convictions on double jeopardy grounds and raised additional challenges to his aggravated assault conviction. The Fort Worth court reversed his aggravated assault conviction because his guilty plea was involuntary. Id. at 85-86. Moreover, the court concluded that, after the reversal, the appellant’s double jeopardy issue was moot. In reaching its conclusion, the court agreed with the State’s argument that “[t]he double jeopardy claim, if any, is not ripe until, or if and when, the State seeks to punish Appellant for an aggravated assault arising from the same transaction and victim.” Id. at 86.

Here, we have held that Appellant’s conviction for criminal solicitation of a minor was supported by legally insufficient evidence. Consequently, that conviction must be reversed. Therefore, Appellant can no longer contend that he is being punished twice for the same offense. His double jeopardy claim will not be ripe unless and until the State seeks to punish him for criminal solicitation of a minor arising from the same transaction and victim. See id. Therefore, we hold that Appellant’s fifth issue is moot and do not address it.

Conclusion

Having overruled Appellant’s issues Appellant pertaining to his conviction for attempted indecency with a child, we affirm the trial court’s judgment on this count of the indictment. Because we have held that Appellant’s conviction for criminal solicitation of a minor is supported by legally insufficient evidence, we reverse the judgment of the trial court on this count of the indictment and render a judgment of acquittal.

      . The prosecutor objected that (1) "51 percent can be beyond a reasonable doubt as far as the jury is concerned,” (2) the question was not proper, (3) the question asked the jury to draw a judgment on the case, and (4) because the jury did not know any facts, "I don't think that’s a strike for cause if they answer yes.”

      . The State argues that by Appellant’s failure to make the required showing, he has failed to preserve his error. The court of criminal appeals has noted that this analysis has sometimes been characterized as a preservation-of-error analysis, but now refers to it as a harm analysis. See Anson v. State, 959 S.W.2d 203, 204 & n. 2 (Tex.Crim.App.1997) (citing Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996)). To preserve error under the circumstances presented in the case at bar, the record must reflect a proper question that the trial court did not allow to be answered, and the questioning party must obtain a ruling on the question. Caldwell v. State, 818 S.W.2d 790, 794 (Tex.Crim.App.1991). Appellant met these requirements.

      . Appellant contends that because the record shows bias as a matter of law, the trial court should have disqualified Middleton, Yates, and Tidmore without a request from defense counsel.

      . Section 15.031(a) provides that the intended and solicited offense must be one of the offenses listed in Texas Code of Criminal Procedure, article 42.12 § 3g(a)(l). Indecency with a child is one of the listed offenses. See Tex.Code Crim. Proc. Ann. art. 42.12 § 3g(a)(1) (Vernon Supp.2004-2005).


author: Opinion By Justice LAGARDE.

text:
    Jett J. MASON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 05-04-00451-CR.
    Court of Appeals of Texas, Dallas.
    June 30, 2005.

      Scala D. Byers, Garland, for appellant.
    William T. (Bill) Hill, Jr., Johanna H. Kubalak, Asst. Dist. Atty., Dallas, for state.
    Before Justices MOSELEY, FRANCIS, and LAGARDE.

      . The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION

Opinion By Justice LAGARDE.

A jury convicted Jett J. Mason, Jr. of misdemeanor assault and assessed his punishment at confinement in the Dallas County jail for one day. See Tex. Pen. Code Ann. § 22.01(a)(1), (b) (Vernon Supp. 2004-05). Following the jury’s recommendation, the trial court suspended imposition of the sentence and placed appellant on community supervision for six months. The issue we must decide in this appeal is whether the non-testifying complainant’s out-of-court statements to the police officer who responded to her 911 call were testimonial in nature. We hold they were testimonial. We further hold that the trial court erred in admitting the statements in violation of the Confrontation Clause, as recently interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that appellant was harmed by their admission. Accordingly, we reverse the trial court’s judgment and remand for further proceedings.

Facts & Procedural Background

Donald Blasingame, a patrol sergeant with the Seagoville Police Department, and the State’s only witness at trial, testified that on July 6, 2002, he responded to a 911 disturbance call at a Seagoville residence. When Blasingame arrived, the complainant, who was upset, crying, and angry, answered the door. In response to Blasin-game’s question about why she called the police, the complainant said that she and her boyfriend, later identified as appellant, had been sleeping when his cellular telephone rang. When the complainant woke appellant up to answer the telephone, he slapped her on the face, shoved her off the bed, put his hand on her throat, and told her he was going to kill her. Blasingame observed red marks and swelling around the complainant’s mouth and nose, which were consistent with her statements.

Blasingame also spoke to appellant. Appellant told Blasingame that he accidentally hit the complainant when he reached over to get the telephone. Disbelieving appellant’s version, Blasingame arrested appellant based on the complainant’s oral statements and his observations at the scene.

The complainant did not appear at trial. The State sought to prove its case through Blasingame’s hearsay testimony of the complainant’s oral statements made to him at the scene. Appellant objected to the out-of-court statements on both hearsay and Confrontation Clause grounds. Following a pretrial hearing outside the jury’s presence, the trial court ruled the complainant’s out-of-court oral statements to Blasingame were admissible.

Arguments on Appeal

On appeal, appellant asserts only that the admission of the complainant’s out-of-court statements violated the Confrontation Clause of the Sixth Amendment. Appellant does not challenge the trial court’s ruling on hearsay grounds. Relying on Crawford, appellant argues that the complainant’s statements were testimonial because they were made in response to “interrogation.” Appellant further asserts that the statements were inadmissible because the State did not show the complainant was unavailable or that appellant had a prior opportunity to cross-examine her. Appellant contends that by its use in Crawford of the term “interrogation” in its colloquial sense, the Supreme Court sought to broaden the term “interrogation” to ensure the protections of the Sixth Amendment were not circumvented or limited unnecessarily. Thus, appellant argues, in determining whether there was “interrogation,” the focus should be on why the questions were asked, and whether the answers “bear testimony,” not on where or how the questioning occurred. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (Confrontation Clause applies to “witnesses” against the accused, in other words, those who “bear testimony”). Appellant contends that if a question is asked to gain information from a witness pursuant to an investigation of a criminal offense, interrogation has taken place.

Alternatively, appellant contends that even if the complainant’s out-of-court statements were not obtained through interrogation, they are still testimonial because she “reasonably had to expect these statements would be used in a subsequent prosecution against [appellant].” See Crawford, 541 U.S. at 52, 124 S.Ct. 1354 (quoting Brief for National Association of Criminal Defense Lawyers, et al. as Amici Curiae 3, which argued that included within the class of “testimonial” statements are “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”).

The State responds that the complainant’s out-of-court statements were not testimonial because they were made “in the initial phase of the investigation when the officer was trying to figure out what happened,” they were not the product of a police interrogation, and they were not made under “circumstances conducive to contemplation of future legal proceedings” that would render them testimonial. The State first notes appellant does not contest the trial court’s determination that the complainant’s statements qualified as excited utterances. The State recites the definition of an excited utterance under Texas law, ie., “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). The State then calls our attention to language in Crawford that statements made out of impulse are not usually accompanied by an awareness on the part of the declarant that she is “bearing] testimony” against another. See Crawford, 541 U.S. at 51, 124 S.Ct. 1354. The State argues that because the complainant in this case was “extremely upset and visibly injured” when she made the statements, it is not reasonable to expect that she contemplated her out-of-court statements would be used at a later trial. Rather, the State asserts, it is more reasonable to presume the complainant was concerned only with her immediate safety. The State concludes the complainant’s out-of-court statements describing the assault were not “testimonial” in nature, were admissible under the excited-utterance exception to the hearsay rule, and, thus, their admission did not violate the Confrontation Clause.

To the extent the State argues that the test for determining whether the witness is “bearing testimony” is a subjective, not an objective, one, and that, by definition, an “excited utterance” is not testimonial, we disagree.

Pre- and Post-Crawford Law

Before Crawford, hearsay statements were admissible for purposes of the Confrontation Clause if they possessed adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, however, the Supreme Court abrogated the Roberts “indicia of reliability” test, holding that without regard to their reliability, testimonial out-of-court statements by a witness are barred by the Confrontation Clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court held that “[wjhere testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69, 124 S.Ct. 1354.

Testimonial or Non-testimonial

Leaving for another day any effort to spell out a comprehensive definition of “testimonial,” the Supreme Court acknowledged that its refusal to articulate a comprehensive definition would cause interim uncertainty. Id. at 68 & n. 10, 124 S.Ct. 1354. Indeed, the Court was correct. Some guidance, however, can be found within the Crawford opinion. The term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354. The Court used the term “interrogation” in its colloquial, rather than any technical, legal sense. See id. at 53 n. 4, 124 S.Ct. 1354 (comparing Crawford facts to Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). “Testimony” is typically “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Id. at 51, 124 S.Ct. 1354 (citing 1 N. Webster, An American Dictionary of the English Language (1828)). Included within the class of “testimonial” statements are “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. (emphasis added).

In Crawford’s wake, various courts, both in and out of Texas, have expressed opinions about what constitutes a “testimonial” statement. In Lee v. State, 143 S.W.3d 565, 570-71 (Tex.App.-Dallas 2004, pet. ref'd), this Court held that a non-testifying codefendant’s out-of-court statement to a police officer was testimonial. The statements in Lee were made during a traffic stop, in response to police questioning, regarding the offense for which the defendant had already been arrested, and were recorded on the patrol car’s audio-video equipment. Id. at 570. This Court concluded that “the formality of the setting ... was intended to record testimony for the prosecution of the case being investigated.” Id.

The State cites several Texas cases that have emphasized the formality of the circumstances surrounding the police questioning as indicating the declarant’s expectation that the statements would be used in a criminal prosecution. See, e.g., Brooks v. State, 132 S.W.3d 702, 707 (Tex.App.Dallas 2004, pet. ref'd) (holding non-testifying codefendant’s written custodial statement made during investigation of charged crime was testimonial); Gutierrez v. State, 150 S.W.3d 827, 830 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (op. on remand) (holding accomplice’s videotaped statement to police after defendant’s arrest was testimonial); Samarron v. State, 150 S.W.3d 701, 707 (Tex.App.-San Antonio 2004, pet. ref'd) (holding witness’s formal, signed, written statement to police was testimonial). In contrast, the State asserts that the record in this case does not support appellant’s contention that Blasingame’s inquiry into the reason he had been summoned amounted to an “interrogation” in contemplation of a potential criminal prosecution. The State argues that Blasingame’s question was simply intended to assess the situation. In support of its position, the State cites Wilson v. State, 151 S.W.3d 694, 698 (Tex.App.-Fort Worth 2004, no pet.) (holding there was no interrogation when witness initiated contact with police and police were questioning witness to determine why she was upset and not to elicit information about known criminal activity); and Gonzalez v. State, 155 S.W.3d 603, 609 n. 4 (Tex.App.-San Antonio 2004, pet. stricken) (expressing doubt that investigatory questioning immediately after crime has been committed rises to the level of “interrogation”); see also Key v. State, No. 12-04-00030-CR, 2005 WL 467167, 173 S.W.3d 72 (Tex.App.-Tyler Feb. 28, 2005, pet. filed) (holding statements made by complainant to police officer responding to disturbance call not testimonial). Key is distinguishable. In Key, the complainant neither called the police nor initiated contact with the police. Key, No. 12-04-00030-CR at *5, 173 S.W.3d at 73. At trial, the testifying officer did not explain whether the complainant’s statements were spontaneous or in response to questions.

The State also cites cases from several other states and two federal circuit courts that have held, under Crawford, inquiries by police officers responding to a 911 or other call about the purpose of the call are not testimonial. See, e.g., Mungo v. Duncan, 393 F.3d 327, 336 n. 9 (2d Cir.2004), cert. denied sub nom. Mungo v. Greene, — U.S. -, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005); Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005); People v. Kilday, 20 Cal.Rptr.3d 161 (Ct.App.2004), review granted, — Cal.4th -, 23 Cal.Rptr.3d 693, 105 P.3d 114 (2005); People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770 (2004); People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82 (2005, appeal pending); Rogers v. State, 814 N.E.2d 695 (Ind. Ct.App.2004); Fowler v. State, 809 N.E.2d 960, 964-65 (Ind.Ct.App.2004), vacated, 829 N.E.2d 459 (Ind.2005); Hammon v. State, 809 N.E.2d 945, 952 (Ind.Ct.App.2004), vacated, 829 N.E.2d 444 (Ind.2005); State v. Barnes, 854 A.2d 208 (Me.2004); People v. Bryant, No. 247039, 2004 WL 1882661 (Mich.Ct.App. Aug. 24, 2004) (not designated for publication); State v. Wright, 686 N.W.2d 295, 305 (Minn.Ct.App.2004, review granted); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870 (N.Y.City Crim.Ct.2004).

The State also acknowledges that courts in other jurisdictions have held to the contrary. See Lopez v. State, 888 So.2d 693 (Fla.Dist.Ct.App.2004); Pitts v. State, 272 Ga.App. 182, 612 S.E.2d 1 (2005); People v. Victors, 353 Ill.App.3d 801, 289 Ill.Dec. 154, 819 N.E.2d 311 (2004, appeal denied). These courts seem to focus on whether the statements in question were made under circumstances indicating the complainant knew he or she was making a police complaint and that what was said could be used against the defendant.

We understand the State’s position to be that, by definition, an excited utterance is not made under circumstances conducive to subjective contemplation of future legal proceedings. We cannot agree. Moreover, even if we were to assume the State is correct in such premise, we nevertheless conclude, based on Crawford itself, that subjective contemplation is irrelevant to an analysis of whether such out-of-court statements would be testimonial or non-testimonial. First, the test set out in Crawford is objective, not subjective. Second, even if the test were subjective, the declarant’s perception could be determined only through cross-examination. Crawford identifies as testimonial “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford 541 U.S. at 52, 124 S.Ct. 1354 (emphasis added). And, in criticizing the application of the Roberts reliability test, the Court stated,

[t]he Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by “neutral” government officers. But even if the court’s assessment of the officer’s motives was accurate, it says nothing about Sylvia’s perception of her situation. Only cross-examination could reveal that.

Id. at 66, 124 S.Ct. 1354. Thus, even if the test were subjective, under Crawford only cross-examination could reveal the complainant’s subjective perception of her situation. See id.

Definitions of “Interrogation” Not Interchangeable under Fifth and Sixth Amendments

In Rhode Island v. Innis, the Supreme Court addressed for the first time the meaning of “interrogation” under Miranda v. Arizona. See Innis, 446 U.S. at 291, 100 S.Ct. 1682. The Innis Court was concerned with the Fifth Amendment privilege against compulsory self-incrimination when it held that other techniques of persuasion beyond express questioning could constitute “interrogation.” See id. at 300-01, 100 S.Ct. 1682. However, the Supreme Court excluded from the definition of “interrogation” any words or actions on the part of the police that were normally attendant to arrest and custody. See id. at 300, 100 S.Ct. 1682. In Innis, however, it is clear the Supreme Court was not considering “interrogation” within the meaning of the Sixth Amendment as reflected by the following language: “The definitions of ‘interrogation’ under the Fifth and Sixth Amendments, if indeed the term ‘interrogation’ is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional protections are quite distinct.” Id. n. 4 (emphasis added). Therefore, to the extent courts have seemingly used the Innis exclusion from “interrogation” under the Fifth Amendment, i.e., “police words or actions normally attendant to arrest and custody,” in determining what is “interrogation,” and thus testimonial, we decline to follow their rationale. Such an application would not serve the policies underlying the Sixth Amendment as expressed in Crawford. See Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (goal of Sixth Amendment to ensure reliability of evidence and that reliability be assessed by crucible of cross-examination).

Application

It is undisputed that the complainant’s out-of-court statements were admitted as substantive evidence for the truth of the matter asserted. The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). As proponent of the out-of-court statements, the State had the burden to show their admissibility — that is, to show either that the statements were non-testimonial or, if testimonial, that the complainant was unavailable and appellant had been afforded a prior opportunity to cross-examine her. See id. at 68, 124 S.Ct. 1354. Except for the prosecutor’s statement that she did not believe the complainant had been served with a subpoena, the record is silent as to the unavailability of the complainant, and the State presented no evidence that appellant had been afforded a prior opportunity to cross-examine her. Therefore, admission of the statements would not violate the Confrontation Clause only if they were not testimonial.

For the reasons set out above, we conclude the complainant’s out-of-court oral statements resulted from an “interrogation” within the meaning of the Sixth Amendment. Thus, the statements were testimonial. Moreover, even if the complainant’s out-of-court oral statements were not in response to “interrogation,” we nevertheless conclude they were testimonial because they were “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” See id. at 52, 124 S.Ct. 1354.

Because the complainant’s out-of-court statements were testimonial and the State did not carry its burden of showing she was unavailable and that appellant had a prior opportunity to cross-examine her, the trial court erred in admitting the out-of-court statements. See id. at 68, 124 S.Ct. 1354.

Moreover, because the error was constitutional, we must reverse unless we can conclude beyond a reasonable doubt the error did not contribute to the conviction or punishment. See Tex.R.App. P. 44.2(a). The complainant’s out-of-court statements were the only substantive evidence that appellant intentionally hit her. Without them, the State would have had no case. Thus, it is obvious the trial court’s error contributed to the conviction. See Lee, 143 S.W.3d at 571. We resolve appellant’s issue in his favor.

We reverse the trial court’s judgment and remand the case for further proceedings.

      . Appellant's community supervision expired on September 11, 2004, absent the filing of a motion to revoke.

      . The record reflects appellant and the complainant were still together at the time of trial.

      . The complainant also gave a written statement. The written statement, however, was neither offered nor admitted into evidence for any purpose, nor does it otherwise appear in the record before us.

      . The State argued in the trial court that the complainant’s statements were admissible under the excited-utterance exception to the hearsay rule, see Tex.R. Evid. 802, 803(2), and as either a statement by a party-opponent or under the hearsay exception for statements against interest. See Tex.R. Evid. 801(e)(2), 803(24); see also Tex.R. Evid. 805. The State also contended at trial, and on appeal, that the statements were non-testimonial.

      . The briefs in this case were filed before the Key opinion issued, so neither party cited the Key case.

      . The opinion states only that when the testifying officer answered a disturbance call one night, he walked in the area to determine where the noise came from, heard screaming that he described as an "unusual" "large emotional” disturbance, and found appellant and the complainant sitting outside on the ground, arguing.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).