author: STEVE McKEITHEN, Chief Justice.

text:
    Jason Dewayne NICHOLSON, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-392 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 25, 2005.
    Decided April 20, 2005.

      Dean Watts, Nacogdoches, for appellant.
    Clyde M. Herrington, Dist. Atty., James M. Yakovsky, Asst. Dist. Atty., Lufkin, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

On August 5, 2004, appellant, Jason Dewayne Nicholson, waived his right to a jury and proceeded to trial on charges contained in two separate indictments. In Cause Number 24,532, appellant was charged with having committed Aggravated Assault of a Public Servant on or about March 17, 2004, by shooting at Fred Shewmake, a peace officer who was attempting to detain or arrest appellant. In Cause Number 24,535, the indictment contained two counts. In the first count, appellant was again charged with Aggravated Assault of a Public Servant on or about March 17, 2004, by shooting at Brad Prince, a peace officer who was attempting to detain or arrest appellant. In the second count, appellant was charged with Attempted Capital Murder on or about March 17, 2004, by discharging a firearm in the direction of Mike Wilson, with the specific intent to commit the offense of capital murder, with said act amounting to more than mere preparation that tended but failed to affect the commission of the offense intended. At the conclusion of the trial, the trial court found appellant guilty on all three charges. The trial was recessed for preparation of a pre-sentence investigation report (PSI) with the trial court ultimately sentencing appellant to confinement in the Texas Department of Criminal Justice — Correctional Institutions Division for life on all three charges. Appellant has not appealed his conviction in Trial Cause Number 24,532. The instant appeal from the conviction in Trial Cause Number 24,535, raises the issues of lack of both legally and factually sufficient evidence to sustain the convictions on each count alleged. Finding no error occurred in the court below, we affirm.

The facts surrounding the shootings in question are not contested. The record indicates that shortly after 4:00 p.m. on March 17, 2004, Fred Shewmake, a Texas game warden and certified peace officer, pulled over a vehicle matching the description of one involved in an aggravated robbery earlier that day. The vehicle initially appeared to contain one person, the driver, but when the vehicle stopped, two additional individuals raised up, causing them to come into view. The driver was later identified as a male named Hooper. Through the combined testimony of Game Warden Shewmake, the two other complainants (Trooper Brad Prince and Deputy Mike Wilson), Sergeant Dawn Stripling of the Angelina County Sheriffs Office, and Texas Ranger Sergeant Pete Maskunas, the front-seat passenger was identified as appellant, and the back-seat passenger identified as Carl Austin. Shewmake testified that when the suspects’ vehicle stopped, Austin and appellant jumped out almost simultaneously. Within a matter of seconds, the front-seat passenger (appellant) pointed a handgun directly at Shewmake’s face and fired a shot. Shewmake immediately returned fire. At some point during the shooting, the driver, Hooper, got out of the vehicle and dropped to the ground where he remained until Shewmake was able to handcuff him. Shewmake placed Hooper in Shewmake’s Parks and Wildlife truck.

At trial, Shewmake was positive that appellant was not the driver of the suspect-vehicle as Shewmake had spent time with the driver at the scene of the initial shooting. Shewmake further testified that appellant could not have been the rear-seat passenger because his memory of the rear-seat passenger was of a man who was “kind of long and lanky,” while the front-seat passenger was “short and just average build.” Shewmake considered his (Shewmake’s) height, 5'll", as being similar to that of the rear-seat passenger who Shewmake thought was close to six feet tall. By contrast, Shewmake noted that the front-seat passenger was “quite a bit shorter than me.” Although unable to state “beyond a reasonable doubt” that appellant was the front-seat passenger/shooter, Shewmake justified his belief that appellant was the assailant through “the process of elimination.”

An additional pertinent fact from Shew-make’s testimony indicated that the handgun used in the shooting appeared to be a semi-automatic pistol and dark in color. He further described the taller, rear-seat passenger’s clothing to have consisted of a red, sleeveless jersey with a white T-shirt underneath, and black shorts. The front-seat passenger, who shot at Shewmake, was wearing pants that were either blue jean or denim-type pants, or a cotton blend, and wore either a short-sleeve shirt or no shirt at all. Shewmake added that he was approximately twenty-five feet from the front-seat passenger when the man fired the shot, and that he (Shew-make) had no problem seeing the events as they all happened around 4:30 in the afternoon, on a clear day with plenty of daylight. Also, Shewmake was in full-uniform and wearing his badge, name-tag, and gun-belt. After the exchange of gunfire, both passengers ran up a hill and eventually into a nearby wooded area.

It was during the subsequent manhunt for appellant and Carl Austin that the complainants (Prince and Wilson) in the instant appeal were fired upon. Both instances took place after dark and neither complainant could positively say it was appellant who fired the shots at them. The record indicates that while it was still dark, appellant surrendered to law enforcement as they closed in on his position, but Carl Austin continued hiding from the authorities until after daybreak on March 18. Two days later, the authorities discovered a nine millimeter semi-automatic handgun in the wooded area very close to where appellant surrendered. Without objection, Sergeant Pete Maskunas of the Texas Rangers, one of two men “in charge of the scene,” summarized a portion of his involvement and investigation as follows:

Q. [State] Okay. And did you see any of the suspects taken into custody? Were you present when any of those individuals were brought in?
A. [Maskunas] I was — I was in the area, but, no, I was not present to see the actual subject being taken into custody, except for later on in the day when I actually took one into custody myself.
Q. Okay.
A. Not this individual.
Q. So, you took another individual into custody?
A. Yes, sir.
Q. Okay. Did you have information as to who the first suspect was, or who was taken into custody?
A. Yes, sir, I did. I had contact with the officers that took him into custody.
Q. Okay. And they were able to tell you who that individual was?
A. Yes, sir, they were.
Q. And who was that?
A. That was Jason Nicholson.
Q. Okay.
A. And he is sitting here in the courtroom.
Q. Okay. And you said you took the third suspect into custody yourself?
A. Yes, sir. With the assistance of the SWAT team.
Q. Okay. About what time was that?
Q. Okay. Can you describe what that individual looked like, what he was wearing, height, or anything like that?
A. He was — I believe he was wearing a pair of tennis shoes and a pair of shorts, and I’m not sure if he was wearing a shirt or not.
Q. Okay.
A. I can’t recall exactly.
Q. Okay. Did he have a weapon on him?
A. No, he did not.
Q. Okay. And did you all locate a weapon in his vicinity?
A. No, sir, we did not.
Q. Ranger Maskunas, did you have any other — did you fulfil any other role as far as investigating this? Once — once the suspects had been taken into custody that night you were out on the scene, what did you do after everybody had been taken in?
A.
We conducted interviews with all three — with all three suspects, two of which were actual interviews. The interview with Mr. Nicholson, he invoked his right to counsel and he was not— aside from being given his Miranda Warning, no further action was taken with him.
I then also obtained search warrants for hair, skin and DNA samples from all three suspects. I stood by and assisted the DPS crime lab when they processed the vehicle that the suspects had been driving in when the shooting occurred on Game Warden Shewmake. I also was involved in all the searches of the crime scenes, and involved in the actual recovery of this weapon.
I also coordinated with the pilots to obtain the flare video from the flare camera inside of the helicopter. I pretty much then put the whole case together.
Q. Okay. And did you come to any conclusions based on your investigation as to what happened? You said you were able to conduct interviews with the subjects. Did you also conduct interviews with the officers who were out there and involved in the shooting?
A. Yes, sir, I did.
Q. Okay. And based on those investigations and the things that you performed, were you able to base any conclusions as to if and which suspects committed these acts?
A. Yes, sir. We were able to conclude, based on interviews with two of the suspects that were very detailed, and also with the interviews of the officers, that Mr. Nicholson fired the weapon at officers on all three occasions.
Q. Okay.
A. And that the weapon was, in fact, in his possession from the time that they committed aggravated robbery in Wood-ville to the time that they were actually — he was actually captured and he left the weapon in the woods.
Q. Okay. Do you know — you were out there the remainder of the evening after Mr. Nicholson was taken into custody?
A. Yes, sir, I was.
Q. Were any other shots fired that night?
A. No, sir.
Q. [By (State)] This is going to be State’s Exhibit Number 11. If you could please open that package and tell me what items those are.
A. [Witness complies.]
Q. Could you describe what those are?
A. Yes, sir. It appears to be a pair of blue pants. I’m not sure what brand they are. It appears to be a pair of— they are Haggar Generation pants, and — I’m not going to touch them, but there appears to be a pair of men’s underwear inside the pants.
Q. Okay. And where were these collected from? Did you collect these?
A. No, sir, I did not.
Q. Okay. When did you come into possession of these?
A. I came into possession of these on the 23rd, when they were taken from the sheriffs [sic] department’s evidence locker and given to the technicians with the DPS crime lab.
Q. Okay. And were [sic] one of the suspects wearing these pants?
A. The information that I was given was that these were the pants that were taken from Jason Nicholson at the time of his arrest.

On cross-examination, Sergeant Masku-nas was asked to specify the three occasions his investigation revealed that appellant had fired shots, and Maskunas replied as follows:

A. [Maskunas] The shot that was fired at Game Warden Shewmake at the initial stop. The shot that was fired at Corporal Prince around — oh, probably around late 9:30, 9:45, somewheres around there. And then the shot that was fired at the officers, Chief Yoscow and Mike Taylor [sic], and other officers that were there. Those three — those three incidences.

In assessing the legal sufficiency of trial evidence to support a conviction, we consider all of the record 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 each of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001). When conducting a sufficiency review, we consider all of the “light most favorable” evidence admitted, whether admitted properly or improperly. Conner, 67 S.W.3d at 197. See also Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). When the record contains evidence circumstantial in nature, the standard of review is the same as it is for reviewing direct evidence. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999). Indeed, circumstantial evidence alone may be sufficient to support a finding of guilt. Id.

With regard to reviewing a trial record for factually sufficient evidence to support a criminal conviction, the question to be answered is: Considering all of the evidence in a neutral light, was the trier of fact rationally justified in finding guilt beyond a reasonable doubt? See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004). To facilitate answering this question, the Court of Criminal Appeals has set out two ways which trial evidence may be factually insufficient:

First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. at 484-85. Additionally, in a factual sufficiency review, courts of appeals are required to consider and discuss the most important evidence that the appellant claims undermines the verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). In keeping with the “common sense approach” suggested in Tex.R.App. P. 47.1, courts of appeals must “show their work” unless issuing a memorandum opinion. Sims, 99 S.W.3d at 603-04.

In the instant appeal, appellant’s lone argument for legal and factual insufficiency under both convictions is the State’s failure to identify appellant as the assailant. Appellant boils his argument down to the following:

In our case, one of the essential elements as alleged in the indictment is that Jason Nicholson is the individual who committed aggravated assault against Brad Prince, and attempted capital murder against Mike Wilson. However, the police officers never saw who shot at them. No co-defendant testified against the Appellant. No confession was introduced at trial. No scientific test linked Appellant to the crime by way of DNA tests, gunpowder tests, or any other test. No witness pointed the Appellant out in the courtroom and positively identified him as the individual involved in these offenses. No witness came forward and said they saw the Appellant shoot anyone. No witness came forward and testified that the Appellant was being criminally responsible for anothers’ (sic) conduct under the law of parties. Therefore, no rational trier of fact could have found that it was actually the Appellant who committed these offenses, (footnote omitted).

In making this argument, appellant appears to entirely discount the fact that, as noted above, circumstantial evidence alone may also support a conviction. See Kutzner, 994 S.W.2d at 184. Circumstantial evidence is as probative as direct evidence in establishing an actor’s guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004). Furthermore, under legal sufficiency review, we include all reasonable inferences in our consideration of the “light most favorable” evidence. See Jackson, 448 U.S. at 318-19, 99 S.Ct. 2781; Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003). We are also permitted to look at events occurring before, during, and after the commission of the offense. Guevara, 152 S.W.3d at 49 (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985) and Thompson v. State, 697 S.W.2d 413, 416 (Tex.Crim.App.1985)). Each fact need not point directly and independently to the guilt of the appellant as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. Guevara, 152 S.W.3d at 49 (citing Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App.1987) and Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983)). As appellant presented no witnesses or evidence in his defense, we have only the testimony and physical evidence presented by the State.

As noted above, the State’s case began with Game Warden Shewmake detailing the events before, during, and after the aggravated assault on him. Shewmake’s testimony strongly indicated that it was appellant who fired the shot at him. This conclusion is based upon the notable dissimilarities between the physical appearance and clothing of appellant and of Carl Austin as described by Shewmake. As trier of the facts, the trial court was free to give great weight to this testimony as appellant was physically present in the courtroom for the trial court to observe. Furthermore, appellant’s argument that no witness pointed appellant out in the courtroom and positively identified him as the individual involved in these offenses is highly misleading in that it entirely ignores the extensive circumstantial evidence indicating appellant was the assailant in all three incidents. From the time of his shooting at Game Warden Shew-make, appellant, accompanied by Carl Austin, was fleeing the authorities. The subsequent manhunt described by the State’s witnesses was quite extensive and involved officers from several jurisdictions including the Texas Rangers. The manhunt included the use of tracking dogs, personnel on horseback, and a helicopter equipped with a type of sensor or tracking device that could apparently detect the body heat of persons being tracked or searched for at night. At the point the gunshot was fired at Prince, and then later at Wilson, appellant and Carl Austin were still the only individuals involved. There was never any evidence raised from any source of the presence of a third, unknown person who could have been responsible for firing the shots. Wilson’s testimony indicated that appellant surrendered very shortly after having shot in Wilson’s direction, with Wilson being only about fifteen yards from appellant when the shot was fired.

Finally, the testimony from Sergeant Maskunas, describing the subsequent capture of Carl Austin and the ensuing investigation, including interviews with Hooper and Austin, confirmed that appellant was the only one of the three original robbery suspects to have fired the shots at Warden Shewmake, Trooper Prince, and Deputy Wilson. Considering the evidence in the light most favorable to the verdicts, any rational trier of fact could have found appellant committed both offenses as alleged in the indictment. Additionally, taking all of the evidence in a neutral light, we again find the trial court was rationally justified in finding appellant guilty under both counts of the indictment. Considered by itself, the circumstantial evidence was certainly strong enough to support the verdicts beyond a reasonable doubt. Even fully considering the fact that neither Prince nor Wilson could positively say it was appellant who fired the shots at them, this does not so outweigh the remaining identification evidence from all sources that we must conclude the verdicts were not proven beyond a reasonable doubt. In other words, this is not a case where the evidence supporting appellant’s guilt on each count merely preponderates in favor of conviction but is otherwise insufficient under the beyond-a-reasonable-doubt standard in proving appellant was the assailant. Therefore, we find the evidence before the trial court legally and factually sufficient to sustain the convictions under both counts of the indictment. We overrule the four appellate issues presented and affirm the judgments of conviction on both counts as alleged in the indictment.

AFFIRMED.

      . See Tex. Pen.Code Ann. § 22.02(a)(2), (b)(2) (Vernon Supp.2005).

      . See Tex. Pen.Code Ann. § 15.01(a) (Vernon 2003); Tex. Pen.Code Ann. § 19.03(a)(1) (Vernon Supp.2005).

      . Under Rule 802 of the Texas Rules of Evidence, the trier of fact is entitled to give probative value to otherwise inadmissible hearsay admitted without objection. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005). Once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence. Id.

      . A "verdict” is defined by statute as “a written declaration by a jury of its decision of the issue submitted to it in the case.” Tex.Code Crim. Proc. Ann. art. 37.01 (Vernon 1981) (emphasis added). "Verdict” by definition does not apply to a trial court’s decision, although the word is used loosely in the statutes and case law. See State v. Lewallen, 927 S.W.2d 737, 739 n. 2 (Tex.App.-Fort Worth 1996, no pet.); State v. Davenport, 866 S.W.2d 767, 769 n. 2 (Tex.App.-San Antonio 1993, no pet.). For simplicity's sake, we will occasionally utilize the term "verdict" in this opinion ever-mindful that trial was to the judge, not to a jury.

      . "Circumstantial evidence is 'direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.’ ” See Cowan v. State, 840 S.W.2d 435, 438 n. 10 (Tex.Crim.App.1992) (quoting Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984)).

      . Although we find the evidence supports appellant’s convictions as the primary actor under both counts of the indictment, we note that in a bench trial, the trial court may use the law of parties if the evidence supports that theory despite the absence of such allegations in the indictment. Leon v. State, 102 S.W.3d 776, 781-82 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Diaz v. State, 902 S.W.2d 149, 151 (Tex.App.-Houston [1st Dist.] 1995, no pet.). See generally Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997).


source: Caselaw Access Project

author: CHARLES KREGER, Justice.

license: Public Domain

text:
    Christopher SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-173 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 9, 2005.
    Decided April 20, 2005.

      Bill Burnett, Coldspring, for appellant.
    Clyde M. Herrington, Dist. Atty., J. Dawn Armstrong, Asst. Dist. Atty., Luf-kin, for state.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Christopher Scott was convicted by a jury of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen.Code Ann. § 22.021(a)(l)(A)(i), (2)(B) (Vernon Supp.2005). Scott was sentenced by the jury to fifty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Scott appeals raising three points of error.

In his first point, Scott argues the trial court committed reversible error by not allowing him to cross-examine the State’s witness, Steve Burney, as to his mental state. Burney is the father of J.P., the victim. Burney testified he found his son and Scott naked in his son’s bedroom between 1:00 and 2:00 a.m. That discovery and confrontation that led to J.P.’s outcry the next day that Scott had sexually assaulted him.

On cross-examination of Burney by defense counsel, the following exchange occurred:

Q. Are you on any medication?
A. Yes, sir.
Q. What kind?
A. Respiridol [sic] and Tegretol.
Q. What do those do?
A. Help me — help keep me from being moody.
Q. Okay. You’ve been to Rusk, haven’t you, sir?
A. Yes, sir.

The State then objected on the grounds of relevancy. The trial court sustained the objection and instructed the jury to disregard. Defense counsel requested to make an offer of proof later, to which the trial court agreed. The offer of proof, heard outside the presence of the jury, established Burney had been to Rusk “quite a few times,” “[y]ears ago” and recently. Burney said he “went twice to Rusk after this event.” Burney further testified he went to Palestine twice, stayed for two weeks every time, and was there just before this event. At that time, Burney was on medication and under a doctor’s care.

Burney testified he was currently on medication for his condition and had been diagnosed as chemically unbalanced by the Burke Center. Burney said he was currently under the care of Dr. Learned at the Burke Center. According to Burney, the chemical imbalance does not affect his ability to see, think, or relate to people, he does not have delusions, and does not suffer from paranoia.

(Dn re-direct examination, Burney testified he has also been to Vernon State Hospital, and said, “I’ve been to quite a few.” Burney stated he does “odd things” if he fails to take his medication, but it does not affect his vision or ability to think. Burney said he takes his medication “all the time ... unless I run out.” He was not taking his medication on the night in question because he was- stable and did not need it; he had quit taking the medication two months earlier because Dr. Learned told Burney that he did not need it.

Defense counsel offered the evidence into the record, “[f]or the purpose of the credibility of this witness.” The trial court refused to admit the testimony on the grounds “[i]t has nothing to do with credibility.”

The law is well settled that the credibility of the witness, and the weight to be given his testimony, is a matter for the jury to decide. See Tex.Code Crim. Proe. Ann. art. 38.04 (Vernon 1979). In passing upon such testimony, the jury is entitled to hear evidence as to the mental status of the witness and the extent of his mental impairment. See Saucier v. State, 156 Tex.Crim. 301, 235 S.W.2d 903, 915-16 (1950) (op’n on rehearing). “[T]he mental capacity of the witness is the proper subject of consideration and impeachment as bearing upon his credibility.” Bouldin v. State, 87 Tex.Crim. 419, 222 S.W. 555, 557 (1920). Therefore, the right to cross-examination includes the right to impeach the witness with evidence that might go to any impairment or disability affecting the witness’s credibility. See Saglimbeni v. State, 100 S.W.3d 429, 435 (Tex.App.-San Antonio 2002, pet. ref'd), (citing Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.1987)). See also Sidney v. State, 753 S.W.2d 410, 413 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd) (The trial court should have allowed appellant to cross-examine witness on the duration, extent, and treatment of his mental condition).

However, ... the mere fact that the State’s testifying witness has in the recent past suffered or received treatment for a mental illness or disturbance does not, for this reason alone, cause this kind of evidence to become admissible impeachment evidence. If the witness is shown to have been suffering from a recent mental illness, prior to the occurrence of the event in question, and such might be considered a “persistent disabling disturbance of his mental and/or emotional equilibrium, manifested through persistent maladjustment and more or less irrational, even bizarre behavior and speech,”... then, of course, the trial judge should permit the jury to hear this kind of evidence.

Virts, 739 S.W.2d at 30.

The decision as to whether evidence is admissible must be decided on an ad hoc basis, with great deference being given the trial judge making the initial decision whether that evidence should be admitted for the jury’s consideration. Virts, 739 S.W.2d at 28. The right of cross-examination is not without limits and the trial judge retains wide latitude to impose reasonable constraints based upon concerns about harassment, prejudice, confusion of issues, and the witness’s safety, among other things. Id. The trial court’s decision to restrict the extent of cross-examination of a witness as to credibility is not subject to reversal absent a clear abuse of discretion. See Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App.1997). The offer of proof clearly demonstrates Burney had suffered a recent mental illness or disturbance prior to the night in question. In point of fact, the evidence indicates Burney’s illness is ongoing, and persisted through and beyond that night. What the evidence does not show is that it affected his credibility. See Saglimbeni, 100 S.W.3d at 435. “Cross-examination of a testifying State’s witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided that such mental illness or disturbance is such that it might tend to reflect upon the witness’s credibility.” Virts, 739 S.W.2d at 30. The testimony elicited does not demonstrate Burney’s mental illness affected his perception of events. Cf. Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App.1997) (To pursue impeachment of a witness’ perceptual capacity with evidence of drug addiction, counsel must demonstrate actual drug-based impairment during the witness’ observation of the crime). Accordingly, we cannot say the trial court abused its discretion in not permitting the jury to hear the evidence. Issue one is overruled.

Scott’s next two points of error concern the testimony of Officer Bo Price during the punishment phase of trial. Point of error two claims the trial court erred in denying the timely request by defense counsel to voir dire a State’s reputation witness outside the presence of the jury. Point of error three contends the trial court erred in allowing testimony regarding appellant’s reputation from a State’s witness not qualified to testify as a reputation witness. The State called Officer Price, a narcotics investigator for the Luf-kin Police Department, to the stand. Price testified as follows:

Q. Are you familiar with the Defendant in this case, Christopher Scott?
A. Yes, ma’am, I am.
Q. And are you familiar with his reputation in the community as a peaceful and law abiding citizen?
A. Yes, ma’am, I am.
Q. And is that reputation—
[Defense counsel]: Your Honor, may I take this witness on voir dire for just a minute?
THE COURT: No. You can cross-examine him, though.
Q. (By [The State]) And is that reputation good or bad?
A. Bad.
[The State]: I’ll pass the witness, Your Honor.
CROSS-EXAMINATION
BY [Defense Counsel]:
Q. Officer Price, who have you talked to regarding Mr. Scott’s reputation?
A. I’m referring to my personal knowledge of him.
Q. So you don’t know what the community thinks of Mr. Scott, only what you think?
A. Yes, sir. I believe you’re correct. That’s correct.
[Defense Counsel]: Pass the witness, Your Honor.
REDIRECT EXAMINATION
BY [The State]:
Q. You’ve also talked to lots of other officers about the Defendant. Is that true?
A. Yes, ma’am.
Q. His name is common—
A. Yes, ma’am.
Q. —with the police department?
A. Yes, ma’am.
[The State]: I’ll pass the witness, Your Honor.
[Defense Counsel]: No further questions, Judge.

It is Price’s testimony, and the trial court’s failure to permit defense counsel to voir dire him, that appellant complains of on appeal.

Article 37.07, section 3, of the Code of Criminal Procedure provides that after a finding of guilt, evidence may be offered by either party as to the defendant’s general reputation or character, or an opinion regarding his character. See Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2005); Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004). That evidence, however, must be offered in accordance with the well-settled law of this State allowing appellant’s counsel to voir dire the witness prior to his testifying. See Jones v. State, 641 S.W.2d 545, 551 (Tex.Crim.App.1982). The Jones court “wholeheartedly agree[d]” the trial court erred by refusing to permit voir dire, and noted,

Because of the many decisions of this Court on this point, we are compelled to classify such error as “grievous error.” The proper procedure to be followed is set out in Crawford v. State, [480 S.W.2d 724 (Tex.Crim.App.1972) ]. In Crawford v. State, op.eit., this Court stated the following: “The procedure to be followed is to permit the opposing party to test the qualification of the witness before he testifies as to the defendant’s reputation ... if the witness is permitted to first give his opinion and it is then determined that he was not qualified to give such opinion, harm which cannot be cured may be done.” For the very obvious reason that was stated in Crawford, Id., the voir dire examination should always occur outside the jury’s presence.

Id. at 551-52 (citations omitted). See also Hernandez v. State, 800 S.W.2d 528, 524 (Tex.Crim.App.1990) (reputation witnesses were questioned on voir dire); Castillo v. State, 739 S.W.2d 280, 291 (Tex.Crim.App.1987) (witness’ qualifications were tested in a hearing outside the jury’s presence before being permitted to testify as a reputation witness); Wagner v. State, 687 S.W.2d 303, 312 (Tex.Crim.App.1984) (pri- or to testifying about appellant’s reputation in the community, witness was taken on voir dire); Jackson v. State, 628 S.W.2d 446, 450 (Tex.Crim.App.1982) (State’s reputation witnesses were examined on voir dire outside the presence of the jury); Manning v. State, 126 S.W.3d 552, 555 (Tex.App.-Texarkana 2003, no pet.) (reputation -witness was questioned on voir dire outside the jury’s presence before testifying before the jury); Smith v. State, 857 S.W.2d 65, 69-70 (Tex.App.-Tyler 1993, no pet.) (appellant sought and received permission to question witnesses on voir dire before they expressed an opinion on appellant’s reputation); Lopez v. State, 860 S.W.2d 938, 944 (Tex.App.-San Antonio 1993, no pet.) (finding trial court erred by denying appellant’s request to voir dire State’s reputation witness outside the presence of the jury). In accordance with the authority set forth above, we find the trial court erred in denying appellant’s request.

Our inquiry does not end here, however, as it is equally well-settled law that the mere refusal of a trial judge to allow voir dire examination of such a witness is not per se reversible error. See Jones, 641 S.W.2d at 552. For the error to be reversible, the record on appeal must show the witness was not qualified to testify. Id. The Court of Criminal Appeals in Turner succinctly set forth the requisites for admitting testimony from a reputation witness:

A reputation witness’s testimony must be based on discussion with others concerning the defendant, or on hearing others discuss the defendant’s reputation, and not just on personal knowledge. Jackson v. State, 628 S.W.2d 446, 450 (Tex.Cr.App.1982). Discussions with other police officers are sufficient to qualify a witness on reputation. Martin v. State, 449 S.W.2d 257 (Tex.Cr.App.1970); see and cf. Hernandez [v. State, 800 S.W.2d 523 (Tex.Cr.App.1990)]. General reputation testimony is admissible even though it is partially based on discussions concerning the offense for which the defendant is being tried, if it is also based on a discussion of matters other than the instant offense. Castillo v. State, 739 S.W.2d 280, 292 (Tex.Cr.App.1987), cert. denied, 487 U.S. 1228, 108 S.Ct. 2889, 101 L.Ed.2d 924 (1988). Thus, reputation opinion must be at least partially based on a discussion of matters other than the actions or offenses for which the defendant is being tried. Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977).

Turner v. State, 805 S.W.2d 423, 429 (Tex.Crim.App.1991).

When asked who he had talked to about Scott’s reputation, Officer Price answered that he was referring to his own personal knowledge and admitted that he did not know what the community thought of Scott. On redirect, Price agreed he had “talked to lots of other officers” about Scott and that his name was “common” with the police. Price’s testimony does not reveal any discussion with members of the community regarding Scott and gives no indication as to whether his discussions with other officers were about matters other than the instant offense. Cf. Adanandus v. State, 866 S.W.2d 210, 226 (Tex.Crim.App.1993) (it was established on voir dire that the conclusions of the three officers regarding appellant’s reputation were based upon discussions with other police officers concerning various criminal activities of appellant and their own investigations of appellant, including discussions with members of the community during those investigations, and at least ten years of contact with appellant); Turner, 805 S.W.2d at 429 (witness learned of appellant’s reputation through conversations with community members prior to instant offense and his testimony was not based upon bare knowledge of crime that witness was investigating or upon other specific acts by appellant); Castillo, 739 S.W.2d at 291 (witness had based his opinion on talking to several ordinary citizens on various occasions in the last three or four years, his own experiences with appellant when he was a juvenile, other instances of misconduct, criminal activity the witness heard about but did not personally investigate, as well as his investigation of the instant case).

In Lopez, the court found the witness was not qualified where the detective based his opinion on appellant’s reputation upon a single report from an unknown informant, received two or three days before the offense at issue. Lopez, 860 S.W.2d at 945. The court held the witness “was not substantially familiar with the reputation of the accused since his only familiarity was with alleged specific acts of the appellant; and he did not hear others discuss appellant’s reputation.” Id. Similarly, in Manning the court found the trial court abused its discretion in allowing the witness to testify regarding Manning’s reputation because the basis of the witness’ knowledge was one personal observation and two reports of specific acts. Manning, 126 S.W.3d at 555. The court recognized there was no evidence the witness discussed Manning with anyone, official or civilian, within in any community and found such a foundation failed to establish the proper predicate. Id. at 556. The court noted “[t]he State faded to ask any questions on redirect examination that might have established the proper predicate ....” Id.

Nothing in Officer Price’s testimony establishes his discussions with other officers concerned matters other than the instant offense. See Turner, 805 S.W.2d at 429. Accordingly, the State failed to establish the proper predicate. We therefore find Price was not qualified to testify regarding appellant’s reputation.

We now turn to a harm analysis pursuant to Tex.R.App. P. 44.2(b) to determine if the error was such as to affect the substantial rights of the accused. “The inquiry is whether the defendant’s substantial rights were violated and whether the appellant’s punishment was affected by the judgment. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).” Bain v. State, 115 S.W.3d 47, 51 (Tex.App.-Texarkana 2003, pet. ref'd). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King, 953 S.W.2d at 271 (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). To determine whether Price’s testimony affected the jury’s decision on punishment, we consider the other evidence the jury heard. See Bain, 115 S.W.3d at 51-52.

The State first called Mark Gorman, a juvenile probation officer with Angelina County. Gorman knew Scott for approximately six years through his duties as a probation officer; Scott had been on Gor-man’s caseload. Scott was first placed on “deferred prosecution” for arson in April of 1999. Scott’s next offenses occurred in March and April of 2001 and were two counts of unauthorized use of a motor vehicle, and one count of engaging in organized criminal activity. Scott was placed on probation for one year. As part of the terms of his probation, Scott was randomly drug tested. He tested positive for THC, the active ingredient in marijuana, and admitted to smoking marijuana once after a drug test came back negative. Scott was in school at the time, and had a difficult time due to his behavior. Scott spent most of his time at the alternative school. Scott was detained in the Angelina County Juvenile Detention Center in December of 2001, following probation violations. Gor-man testified that he has approximately one contact a month with a “normal probationer” but averaged four or five with Scott. According to Gorman, he had to provide a lot of structure for Scott and “stay on” him. Gorman said if he “stayed on” Scott, Scott did what he asked, but if Gorman did not, Scott would start “to fall.”

On cross-examination, Gorman testified he would classify Scott as a follower and someone who was fairly easily influenced. Gorman said Scott associated with a particular “crew,” which included mostly family members and engaged in “gang-like activities.” Gorman tested Scott a number of times for drugs, probably more than ten, and testified “drugs really weren’t an issue with him.” Gorman agreed that Scott responds well to structure but was uncertain whether probation would provide the intensive structure he had been providing Scott. Regarding the charge of unauthorized use of a motor vehicle in March of 2001, Gorman testified there were four people in the car, one adult and three juveniles. Gorman agreed it was “a following type of situation.”

Gorman agreed on re-direct examination that most of the people Scott spent time with were also on juvenile probation and engaged in criminal behavior, even though, as a condition of probation, Scott was ordered not to spend time with other people on probation. In Gorman’s opinion, Scott still had problems following the rules with contact averaging once a week. Gorman clarified his testimony about Scott doing well in a structured environment and stated he “was talking more as detention. Once he was placed in detention, ... he did excellent in detention. We have a level, and four being the highest. He normally stayed on level four. At that time, that was the first time, I think, he’d really had the structure he needed.” Gorman testified, “I can honestly say he did excellent in detention with that structured environment that we provide.” Gorman agreed detention was “totally different from being on probation.”

The record reflects Officer John Davis of the Lufkin Police Department was also called to testify during punishment. Officer Davis testified he was familiar with Scott through his duties as an investigator for juvenile crimes and had dealt with Scott on the offenses of engaging in organized criminal activity, unauthorized use of a motor vehicle, and theft. Davis was asked, “do you have an opinion as to the Defendant’s reputation as a peaceful and law abiding citizen in the community?” Davis said, “I don’t think it’s highly rated.... Basically, I think he’s a thief.” On cross-examination, Davis testified that was his opinion, not the community’s opinion. Davis conceded he did not know what Scott’s reputation was in the community.

Tom Hipps, the discipline coordinator at the alternative school for the Lufkin Independent School District, also testified for the State during the punishment phase. Hipps was familiar with Scott and had known him several years. According to Hipps, Scott , spent a “good bit” of time at the alternative school. Hipps was unsure what Scott was referred for but testified students are sent there for behavioral reasons. Hipps said Scott performed poorly, misbehaved, refused to do his work, and talked. When students get in trouble at the alternative school, they are sent, to Hipps, and he dealt with Scott on many occasions. For the 2000-2001 school year, Scott was sent out of class seventy-six times for discipline reasons, and suspended twelve times, for activities such as throwing over desks, throwing things at teachers and using obscene language. The next year, Scott received nineteen “write-ups” and ten suspensions. The notices include throwing things at and threatening students, and being disrespectful to and throwing things at teachers. Hipps opined that Scott can follow the rules, but chooses not to.

During closing argument, defense counsel asked for probation. No other sentence was suggested. In its closing, the State informed the jury the punishment range was five to ninety-nine years and acknowledged Scott qualified for probation. The State argued against probation, focusing on Scott’s inability to follow the rules and the escalation of Scott’s criminal activities to the instant offense, the repeated aggravated sexual assault of a ten-year old boy. The State never mentioned Scott’s reputation or the testimony regarding it. Cf. Aleman v. State, 49 S.W.3d 92, 96 (Tex.App.-Beaumont 2001, no pet.).

In examining the record to assess harm, we consider the source and nature of the error; the extent to which the State emphasized it; the probable collateral implications of the error; the weight a juror would probably place upon it (in light of whether the record contains overwhelming evidence supporting the finding in question); and whether declaring the error harmless would encourage the State to repeat it with impunity. See Roberson v. State, 100 S.W.3d 36, 44 (Tex.App.-Waco 2002, pet. ref'd). The, trial court was the source of the error and the error resulted in the admission of Price’s testimony that Scott’s reputation was “bad” and his name “common” with police. The State did not emphasize it. In light of the other evidence introduced at punishment, a juror would probably not place much weight on Price’s testimony. Since the error was not the State’s, declaring it harmless would not encourage the State to repeat it.

The jury assessed Scott’s sentence at confinement for fifty years. In light of the properly-admitted evidence, we cannot say the testimony of Officer Price affected appellant’s punishment. See Bain, 115 S.W.3d at 51-52. The trial court’s error did not have a substantial or injurious influence on the jury’s decision; therefore the error is harmless. Issue three is overruled.

The judgment of the trial court is AFFIRMED.

      . Rusk State Hospital.

      . The actual hospital in Palestine is not identified.

      . In its brief, the State alleges appellant is also complaining of Officer Davis' testimony. While appellant’s brief parenthetically alludes to a lack of evidence that Davis was familiar with Scott's reputation in the community, no such argument is presented. Moreover, as no objection was made to Davis’ testimony, no such argument would be considered. See Tex.R.App. P. 33.1.


author: HOLLIS HORTON, Justice.

text:
    The STATE of Texas, Appellant, v. William Gerald CARRANZA, Appellee.
    Nos. 09-04-411 CR, 09-04-412 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted March 17, 2005.
    Decided April 20, 2005.

      Michael A. McDougal, Dist. Atty., Gail Kikawa McConnell, Asst. Dist. Atty., Con-roe, for state.
    Jay M. Wright, Conroe, for appellee.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

In two causes of action, the State appeals the trial court’s order granting appellee William Gerald Carranza’s motion to suppress physical evidence. In a single point of error, the State contends that as a matter of law the trial court erred in requiring the police to have reasonable suspicion before knocking on a hotel room door. We agree and reverse the trial court’s order granting the motion to suppress.

While on a routine patrol around the business areas of Rayford/Sawdust, Deputies Michael Uber and Katie Allison pulled into the Red Roof Inn and askéd the hotel desk clerk if there had been any “high traffic” entering and exiting any of the hotel rooms. The clerk indicated there was high traffic for one hotel room and Deputy Uber recognized the name of the person registered to that room as someone connected with drug activity. At the motion to suppress hearing, Deputy Uber testified he did not recall the clerk’s name or gender, did not recall whether the clerk had given him reliable information about criminal activity in the past, but did recall seeing the clerk behind the front desk wearing a name tag.

The deputies left the front desk, went to a business next door, and observed the hotel room for ten to fifteen minutes. The deputies observed three to four people, one of whom Deputy Uber recognized as someone he knew to have previously engaged in drug activity, enter and exit the room. After determining that unusual activity was occurring in the hotel room, the deputies approached the hotel room door and knocked. Carranza opened the door, then shut it while blocking it with his body. Deputy Uber asked Carranza for his consent to search the room. Carranza said “yes,” stepped back, and opened the door to let the deputies enter. Deputy Allison testified that Carranza said something similar to, “I’m not hiding anything if you guys want to come in and search.... ” Deputy Allison searched the room and found a crack pipe, a bag of cocaine, marijuana, and other drug paraphernalia.

The trial court did not file findings of fact or conclusions of law on the record. The record indicates the trial court made its determination based on the hotel clerk’s tip. According to the trial court, “if the tip isn’t valid, [the] search isn’t valid.” The court further stated, “Right now this officer has said he doesn’t know the name of the [clerk], he’s not sure whether it’s male or female. That’s not credible testimony ... to say that we can rely on that to go knock on somebody’s door.” The record demonstrates the trial court required that the reasonable suspicion to knock on Carranza’s door be based upon a credible and reliable tip.

This Court reviews a trial court’s ruling on a motion to suppress for an abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex.Crim.App.2003). We give almost total deference to the trial court’s determination of historical facts, while conducting a de novo review of the trial court’s application of the law to those facts. Carmouche v. State, 10 S.W.3d 328, 327 (Tex.Crim.App.2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997)). The trial court is the exclusive finder of fact. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). When the trial court does not file findings of fact, we will view the evidence in the light most favorable to the trial court’s ruling and we will assume the trial court made implicit findings of fact in support of its ruling as long as those findings are supported by the record. Id. The trial court’s decision will be upheld if it is “correct on any theory of law applicable to the case. ...” Id. at 855-56.

Under both federal and state law, a police officer may approach a citizen in a public place or knock on a door to ask questions or seek consent to search. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997). The officer need not have reasonable suspicion to do so as long as the officer does not indicate that compliance is required. Hunter, 955 S.W.2d at 104. The record shows the deputies knocked on Carranza’s door, Carranza opened the door, the deputies asked for consent to search the room, and Carranza gave consent by saying “yes,” and then stepping away from the door stating he had nothing to hide. The record does not indicate that Carranza was led to believe he had no right to refuse consent. The deputies did not need a reasonable suspicion to legally knock on Carranza’s hotel room door.

We find the trial court abused its discretion in requiring reasonable suspicion to knock on a hotel room door. The State’s sole issue is sustained.

Having sustained the State’s sole issue, we reverse the trial court’s order granting Carranza’s motion to suppress and remand this cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The two causes were heard together at trial. We consider them together on appeal.


author: PER CURIAM.

text:
    In re STARFLITE MANAGEMENT GROUP, INC., d/b/a StarFlite Aviation.
    No. 09-05-099 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted March 23, 2005.
    Decided April 21, 2005.

      Thomas B. Alleman, Fred J. Meier, Winstead Sechrest & Minick, PC, Dallas, John W. Newton III, Orgain Bell & Tucker, LLP, Beaumont, for relator.
    John Werner, Reaud Morgan & Quinn, LLP, Beaumont, for real party in interest.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

PER CURIAM.

Relator, StarFlite Management Group, Inc., d/b/a/ StarFlite Aviation (“Star-Flite”), has filed a petition for writ of mandamus alleging an abuse of discretion by the trial court in the signing of a discovery order that granted the motion of real party-in-interest, Mary Trahan, to compel StarFlite to produce certain financial documents. On March 11, 2005, we temporarily stayed the trial court’s order and requested a response by Ms. Trahan. We conditionally grant mandamus relief and vacate our stay order.

The underlying suit stems from the crash of an aircraft on September 20, 2003, in which Ms. Trahan’s husband, Ronald Keith Trahan, was killed. Two other individuals also perished in the crash. It is alleged that at the time of the crash Ronald Keith Trahan and the two other decedents were employees or independent contractors of StarFlite. According to the accident report compiled by the National Transportation Safety Board, the three decedents were licensed pilots and held flight instructor certificates as well. At the time of Respondent’s ruling, Trahan framed her cause of action as follows:

Plaintiffs further allege that the negligence of Defendants, their agents, servants, and employees, was a proximate cause of the injuries and damages in question. Plaintiffs would show that at all times material hereto, Defendant Starflite was eligible to become a subscriber under the Workers’ Compensation laws of the State of Texas; but failed and refused to become a subscriber and, therefore, Defendant Starflite is unable to urge as a bar to recovery contributory negligence; injury caused by the negligence of a fellow servant, and its statutory defenses by Texas Labor Code § 406.033 have been removed.
RONALD KEITH TRAHAN, Deceased, suffered severe and fatal injuries as a proximate result of the negligent acts and/or omissions of the Defendants ....
We find the following procedural history of the underlying litigation to be pertinent:
1. December 1, 2004. Oral deposition of defendant, John S. Beeson, taken.
2. December 6, 2004. Oral deposition of defendant, David Trigg, taken.
3. December 6, 2004. Oral deposition of defendant, William Jeffrey (Jeff) Ware, taken.
4. January 4, 2005. “Plaintiffs First Supplement To Motion For Sanctions Against StarFlite and/or David Trigg; To Motion To Continue Hearing On Motion For Summary Judgment; And To Motion To Redepose John Beeson and David Trigg” filed.
5. January 5, 2005. Trahan files her Sixth Amended Petition which adds, as individual defendants, David Trigg and his wife, Jerri Trigg, Jeff Ware and his ex-wife “Carla” Ware, and adds as a corporate defendant, CEMR, Inc., a company owned by the David Trigg Children’s Trust. This Sixth Amended Petition appears to also add four additional allegations: “Single Business Enterprise,” “Alter Ego,” “Fraudulent Transfer,” and “Partnership.”
6. January 13, 2005. Hearing on Trahan’s First Supplemental Motion For Sanctions, etc.... Respondent denied motion for sanctions, but granted motion to continue summary judgment hearing, and granted motion to re-depose defendants Beeson and David Trigg. At this hearing, doeument production was not an issue raised by either party.
7. February 7, 2005. “Plaintiffs Motion To Compel Complete Response To Discovery By Defendants” filed. The only apparent basis alleged for Trahan’s need for “complete responses” was stated as: “In order to fully conduct the re-depositions of Beeson and David Trigg, and in order to fully depose Jerri Trigg, it is necessary to have all responsive discovery materials produced so that they can be reviewed and organized prior to their depositions.”
8. February 11, 2005. Hearing on Trahan’s Motion To Compel, and on StarFlite’s Motion To Bifurcate and Special Exceptions. Respondent granted StarFlite’s Special Exceptions and strongly suggested Trahan plead more factual basis for her various allegations. Respondent reserved his ruling on the Motion To Bifurcate until closer in time to trial. Respondent orally granted Trahan’s Motion To Compel, finding, inter alia, the production of the documents in question not to be unreasonably burdensome, notwithstanding Jeff Ware’s affidavit to the contrary.
9. February 14, 2005. Defendant John S. Beeson re-deposed.
10. March 4, 2005. Defendant Jerri Trigg deposed, and defendant David Trigg re-deposed.
11. March 9, 2005. Respondent signs written order granting Trahan’s Motion To Compel Complete Response To Discovery by StarFlite, and ordering StarFlite to comply on or before March 14, 2005.

StarFlite’s mandamus petition contends the Respondent’s order compelling production is an abuse of discretion because: (1) disclosure of the requested documents violates the privacy rights of StarFlite and of others involved in the underlying litigation; (2) the discovery being sought is entirely irrelevant to any issue in the underlying litigation; (3) the requested discovery is entirely overbroad and harassing; and (4) the requested discovery on insurance matters is entirely outside the permissible scope of discovery. The March 9, 2005, order requires StarFlite to produce to Tra-han “true and correct copies” of the following:

A. All documents relating to the shopping for, procurement of, and/or purchase of the insurance in force on the aircraft in question (N45BP) on the date of the incident made the basis of this lawsuit.
B. All StarFlite cancelled checks from January 1, 2000 to present.
C. All StarFlite bank statements or other records showing the assets, debits and credits of the company from January 1, 2000 to present.
D. All credit card statements, bills, invoices, summaries of charges, details of charges, or other similar documents for which the bill or invoice or detail of charges was paid, in whole or in part, by StarFlite, from January 1, 2000 to present.
E. The tax returns of StarFlite from January 1, 2000 to present.
F. Documents demonstrating that the sums withheld from the paychecks of Keith Trahan, David Howard and Santiago Miravete in 2003 as “social security” or “Medicare” withholding were in fact remitted to the appropriate taxing authorities in a timely manner.
G. QuickBooks or other similar computer database reports or documents for the time period January 1, 2000 to present pertaining to:
1. Any and all loans to or from Star-Flite (with all activity related thereto);
2. All payments of whatever kind or character, whether categorized as payments of equity, debt, wage, salary, consultant fee, or other remuneration, by StarFlite; and
3. All payments of whatever kind or character, whether categorized as payments of equity, debt, wage, salary, consultant fees, or other remuneration by StarFlite to John Beeson, David Trigg, Jerri Trigg, or other corporations or partnerships in which John Beeson and/or Jeff Ware and/or David Trigg and/or Jerri Trigg have an ownership interest.
H. State, for each payment to any credit card company made by StarFlite from January 1, 2000 to present: Date of payment; Amount of payment; Reason(s) for incurrence of underlying obligation which was paid; Business reason, if any, for payment of this charge by StarFlite; and Name of person or entity on card.

Mandamus relief is appropriate only if the trial court abused its discretion or violated a legal duty, and there is no adequate remedy at law. In re Dana Corp., 188 S.W.3d 298, 301 (Tex.2004) (orig. proceeding) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992)(orig. proceeding)). “A trial court’s ruling that requires production beyond what our procedural rules permit is an abuse of discretion.” Id. (citing Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995)(orig. proceeding)). “If an appellate court cannot remedy a trial court’s discovery error, then an adequate appellate remedy does not exist.” Id. Where a discovery order is overbroad in that it compels production of patently irrelevant or duplicative documents, or requires production of documents from an unreasonably long time period, there is no adequate remedy by appeal. See In re CSX Corp., 124 S.W.3d 149, 151-53 (Tex.2003)(orig. proceeding). Such an order imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party. Id. at 153.

The rules of civil procedure define the general scope of discovery as any relevant, unprivileged information, even if inadmissible at trial, that “appears reasonably calculated to lead to the discovery of admissible evidence.” See Tex.R. Civ. P. 192.3(a); In re CSX, 124 S.W.3d at 152. Although the scope of discovery is broad, requests must show a reasonable expectation of obtaining information that will aid the dispute’s resolution. Id. Therefore, discovery requests must be “reasonably tailored” to include only relevant matters. Id. at 153 (citing In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998)(orig. proceeding)).

Our resolution of the issue before us is significantly hindered by the fact that we have not been provided with a copy of Trahan’s re-pleaded cause of action. As our procedural rules tie scope of discovery to any unprivileged information that is “relevant to the subject of the action,” it would seem necessary to have a properly-pleaded cause of action before us in order to determine if the various documents ordered produced are “relevant to the subject of the action,” or if the order is fatally overbroad. Further complicating our analysis is the fact that only three days after the February 11 hearing, Trahan proceeded to re-depose John Beeson; and David Trigg was re-deposed and Jerri Trigg was deposed, three weeks after the February 11 hearing. Trahan made no objection, complaint, or any mention of further non-production by StarFlite. Indeed, the record before us indicates that Trahan introduced an additional twenty-three exhibits during John Beeson’s second deposition, ten additional documentary exhibits at David Trigg’s second deposition, and one documentary exhibit during Jerri Trigg’s deposition.

The entire basis of Trahan’s lawsuit is the bare allegation of negligence on the part of all defendants for the September 20, 2003, plane crash. The sixth amended petition includes pleading on alter ego and other means of piercing the corporate veil. The various doctrines for piercing the corporate veil are not substantive causes of action. See Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Instead, they are a means of imposing on an individual a corporation’s liability for an underlying cause of action. Id. (citing Farr v. Sun World Sav. Ass’n, 810 S.W.2d 294, 297 (Tex.App.-El Paso 1991, no writ)). “The results are remedial, expanding the scope of potential sources of relief.” Fuqua, 29 S.W.3d at 147. “Without an underlying cause of action creating corporate liability, evidence of an abuse of the corporate form is immaterial.” Id.

In determining whether mandamus should issue, we would normally confíne our focus to the record that was before the trial judge when the complained-of ruling was made. See In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998) (orig. proceeding). However, as Trahan notes in her response to the petition for writ of mandamus, “[s]ome of the discovery and documents attached to Real Party in Interest’s Appendix were generated after the hearing at which the Motion was orally granted and certainly were not made known to the [Respondent] before signing the Order complained of.” These include the deposition of Jerri Trigg, and the second depositions of David Trigg and John Beeson.

In pretrial discovery matters, the party attempting to restrict discovery has the burden of pleading and proving the basis for the desired limitation. See Kern v. Gleason, 840 S.W.2d 730, 735-36 (Tex.App.-Amarillo 1992, orig. proceeding). By affidavit, StarFlite’s President, Jeffrey Ware, indicates that the documents requested by Trahan are not relevant to any issue in the case and would be burdensome to produce. Ware does not make a claim that any of the documents in question are privileged or immune from production, and there is no presumption that documents are privileged. See In re E.I. DuPont de Nemours and Co., 136 S.W.3d 218, 225 (Tex.2004) (orig. proceeding). Furthermore, Ware’s affidavit repeatedly refers to StarFlite’s having produced all documents relating to its transactions with John Bee-son, but fails to make any mention of the existence of any StarFlite documents involving transactions with or for defendants David Trigg, Jerri Trigg, Jeffrey Ware, Karla Ware, or CEMR, Inc. Additionally, Ware’s affidavit appears to misstate the relevancy standard embodied in Tex.R. Civ. P. 192.3(a). To be discoverable, the information sought need not establish a claim or relate directly to only one of several named defendants, but need only appear “reasonably calculated to lead to the discovery of admissible evidence.” Id. Notwithstanding these inadequacies in StarFlite’s proof, a proper discovery order must be “reasonably tailored” to include only relevant matters. See In re CSX, 124 S.W.3d at 152.

We reiterate that the parties have failed to provide us with a copy of Trahan’s amended petition, but they have included “discovery and documents” that were not before Respondent at the time of his oral pronouncement granting Trahan’s Motion To Compel. Also at this time, we have been made aware of five additional defendants that appear to have some relevance to Trahan’s various remedial theories of “piercing the corporate veil.” Therefore, any further production of documents by StarFlite to Trahan, as reflected in Respondent’s discovery order of March 9, 205, must be strictly limited in scope to only such corporate documents, reports, or other similar information in which appear the names, individually or in any combination, of the following defendants: John Beeson, David Trigg, Jerri Trigg, Jeffrey Ware, Karla Ware, and/or CEMR, Inc. We do not find the starting date of January 1, 2000, to involve “an unreasonably long time period” under the facts and circumstances presented. See In re Dana Corp., 138 S.W.3d at 301. Without more specific information as to what documents or other financial information StarFlite has produced, and without a properly pleaded cause of action on Trahan’s part, we are constrained from further tailoring the Respondent’s order without first permitting Respondent to examine the newly generated “discovery and documents” in light of Trahan’s newly-amended pleadings.

For the foregoing reasons, we conditionally grant mandamus relief to StarFlite. We direct the trial court to modify its order to limit the production of the corporate financial and business documents of StarFlite Management Group, Inc. d/b/a StarFlite Aviation to said documents which explicitly refer, by name, to the defendants John Beeson, David Trigg, Jerri Trigg, Jeffrey Ware, Karla Ware, and/or CEMR, Inc. for the periods from January 1, 2000, to the present. The writ will issue only if the trial court does not modify its order.

WRIT CONDITIONALLY GRANTED.

      . The underlying lawsuit, trial court cause number A-171,169, is Mary Trahan, et al. v. StarFlite Management Group, Inc., et al.

      . Beeson is not a "new” defendant as he appears to have been named by Trahan prior to the filing of her Sixth Amended Petition.

      . For “alter ego” purposes, it has been noted that a trial court may consider the following as proof: (1) the payment of alleged corporate debts with personal checks or other commingling of funds: (2) representations that the individual will financially back the corporation; (3) the diversion of company profits to the individual for his personal use; (4) inadequate capitalization; and (5) other failure to keep corporate and personal assets separate. See Morris v. Powell, 150 S.W.3d 212, 220 (Tex.App.-San Antonio 2004, no pet.) (citing Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990)).


text:
    In re Carmen M. BIVINS.
    No. 10-05-00156-CV.
    Court of Appeals of Texas, Waco.
    April 27, 2005.

      Samuel W. Pettigrew Jr., Grand Prairie, for Appellant/Relator.
    Mary Lou Shipley, Waxahachie, for Ap-pellee/Respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

PER CURIAM.

Carmen M. Bivins seeks a writ of mandamus directing Respondent, the Honorable A1 Scoggins, Judge of the 378th District Court of Ellis County, to vacate an order granting her estranged husband Larry’s motion to disqualify her attorney Sam W. Pettigrew, Jr. in their divorce.

Larry sought to disqualify Pettigrew because: (1) Pettigrew prepared Larry’s will; (2) he prepared a warranty deed conveying a tract of land from Larry’s father to Larry and the character of that property is presently disputed; and (3) he advised Larry regarding a contemplated adoption of Carmen’s children from a prior marriage. Respondent granted Larry’s motion to disqualify because “[m]ost of the divorce case will turn on the nature of the deed to [Larry] from his father” and “any testimony about the nature of that transaction ... would have to come from either [Larry] or Mr. Pettigrew.”

Carmen contends that Respondent abused his discretion by granting the motion to disqualify because Larry failed to establish with specificity that Pettigrew violated a disciplinary rule. Carmen suggests that Rules of Disciplinary Procedure 1.05 and 1.09 are implicated in this case.

Larry responds that disqualification may be appropriate even if no disciplinary rule has been violated. Larry suggests that Rule 3.08 supports Respondent’s ruling because Pettigrew is a potential witness.

We will grant mandamus relief if a respondent has committed a clear abuse of discretion and the relator has no adequate legal remedy. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002) (orig.proceeding) (per curiam); In re Chu, 134 S.W.3d 459, 462 (Tex.App.-Waco 2004, orig. proceeding). There is generally no other adequate legal remedy available to review the grant or denial of a motion to disqualify. See Nitla, 92 S.W.3d at 422. Thus, our review is limited to the question of whether Respondent clearly abused his discretion in granting the motion to disqualify. Id. “[A] clear failure by the trial court to analyze or apply the law correctly will constitute- an abuse of discretion and may result in appellate reversal by extraordinary writ.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.2004) (orig.proeeeding) (per curiam) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proeeeding)).

“Disqualification is a severe remedy.” Nitla, 92 S.W.3d at 422 (quoting Spears v. Fourth Ct. of Apps., 797 S.W.2d 654, 656 (Tex.1990) (orig.proeeeding)). Thus, a trial court which considers a motion to disqualify “must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic.” Id.; Chu, 134 S.W.3d at 464. When disqualification is sought because opposing counsel has received confidential information, the party moving to disqualify opposing counsel must show that: (1) opposing counsel’s possession of the confidential information has caused actual harm to thé movant; and (2) there are no lesser means available to remedy the harm. See Nitla, 92 S.W.3d at 423.

Larry is correct that the violation of a disciplinary rule is not an essential prerequisite for disqualification. Id. at 422. Rather, the disciplinary rules provide “guidelines — not controlling standards— for disqualification motions.” Id.

Though the violation of a disciplinary rule is not essential, the parties focus on rules 1.05, 1.09, and 3.08 as potential bases for disqualification in this case. We do likewise. See In re Users Sys. Servs., Inc., 22 S.W.3d 331, 334 (Tex.1999) (orig.proceeding).

Rule 1.05(b) provides in pertinent part:

[A] lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

Tex. DisciplinaRY R. Prof’l Conduct 1.05(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9).

Rule 1.09(a) provides:

(a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:
(1) in which such other person questions the validity of the lawyer’s services or work product for the former client; or
(2) if the representation in reasonable probability will involve a violation of Rule 1.05; [or]
(3)if it is the same or a substantially related matter.

Id. 1.09(a).

Rule 8.08 provides in pertinent part:

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.

Id. 3.08(a), (b).

Carmen contends that no violation of Rule 1.09 is shown because Larry was not Pettigrew’s client in the deed transaction, because Pettigrew’s involvement in preparing the deed will not “in reasonable probability ... involve a violation of Rule 1.05,” and because the deed transaction did not concern the same or a substantially related matter.

Larry responds that Rule 3.08 is implicated because Pettigrew is a potential witness regarding the character of the property conveyed in the deed transaction.

Larry testified that he paid Petti-grew’s fee for preparation of the deed. Larry and Carmen dispute whether the property Larry’s father conveyed to Larry is community property or Larry’s separate property. Larry testified that he considers Pettigrew’s participation in that transaction to give Carmen “an unfair advantage” in the divorce.

Although Larry’s motion alleges that Pettigrew represented only his father in the deed transaction, Larry testified that he paid Pettigrew’s fee to draft the deed and that he considered Pettigrew to represent him as well in the transaction. Larry testified that he shared “confidential information” during the deed transaction, though he never explained what this confidential information was. Rather, Larry explained that, because the character of the property is a contested issue in the divorce, he considers Pettigrew’s representation of Carmen to be harmful.

An attorney-client relationship is not created where a person hires an attorney in a non-legal capacity. See Pondrum v. Gray, 298 S.W. 409, 412 (Tex. Comm’n App.1927, holding approved); State v. Delany, 149 S.W.3d 655, 662 (Tex.App.-Houston [14th Dist.] 2004, pet. filed); Sutton v. Est. of McCormick, 47 S.W.3d 179, 184-85 (Tex.App.-Corpus Christi 2001, no pet.); Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 332 (Tex.App.-Austin 2000, pet. denied); see also 1 Steven Goode et al., Guide to the Texas Rules of Evidence § 503.2 & nn. 10-13 (3d ed.2002); Roy Robert Ray, Law of Privilege in Texas, 12 Texas L.Rev. 143, 147-48 (1934). Thus, an attorney-client relationship does not arise when a person hires an attorney to draft an instrument but does not seek the attorney’s advice with respect to that instrument. Id. In such cases, the attorney is considered a “mere scrivener.” See Sutton, 47 S.W.3d at 184; Childress v. Tate, 148 S.W. 843, 844 (Tex.Civ.App.-Fort Worth 1912, writ denied).

Here, Larry testified that he paid Petti-grew to prepare the deed and that confidential communications were disclosed during the deed transaction. Thus, Larry provided some evidence to support a finding that an attorney-client relationship existed between Pettigrew and himself.

Rule 1.09 provides that an attorney “shall not” represent the adversary of a former client “if the representation in reasonable probability will involve a violation of Rule 1.05” or if the representation involves “the same or a substantially related matter.” Tex. Disciplinaey R. PRof’l Conduct 1.09(a)(2), (3). We agree with Larry that, because the character of the property conveyed is a contested issue in the divorce, the prior representation involves “a substantially related matter.” See id.

A violation of Rule 1.05 with respect to a former client occurs when the attorney reveals confidential information to an unauthorized third person or uses confidential information to the disadvantage of the former client without the client’s consent. Id. 1.05(b)(1), (3). Larry’s contention is that Pettigrew’s representation of Carmen will in reasonable probability involve Pettigrew using confidential information obtained during the deed transaction to Larry’s disadvantage in litigating the character of the property Larry’s father conveyed to him.

Property obtained during a marriage is presumptively community property. Tex. Fam.Code Ann. § 3.003(a) (Vernon 1998). A party who contends that property is separate property bears the burden of proving that contention by clear and convincing evidence. See id. § 3.003(b) (Vernon 1998); Zagorski v. Zagorski, 116 S.W.3d 309, 314 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-Waco 2001, pet. denied).

With regard to real property acquired during the marriage, this burden may be met by proving that the property in question was acquired “by gift, devise, or descent.” Tex. Fam.Code Ann. §3.001(2) (Vernon 1998). This ' burden may also be met by proving that separate funds were used to purchase the property. See Irvin v. Parker, 139 S.W.3d 703, 708 (Tex.App.-Fort Worth 2004, no pet.); Zagorski, 116 S.W.3d at 316. Because Larry’s father was alive when the deed in question was executed, the property cannot have been acquired by Larry by devise or descent. Thus, Larry will have the burden of proving at trial that the property was a gift or that he used separate funds to purchase it.

If Larry purchased the property with separate funds, he can prove the source of funding without regard to any information he gave to Pettigrew. Conversely, if Larry contends that the property was given to him by his father, he can testify to this fact. If he did so, it would then be incumbent upon Carmen to rebut this testimony. In this instance, Carmen might choose to call Pettigrew as a rebuttal witness. Thus, Pettigrew’s knowledge of the details of the transaction poses at least a threat of harm to Larry.

The potential of Pettigrew testifying invokes Rule 3.08. Rule 3.08(a) applies when an attorney may be called to testify regarding an essential fact of the client’s case. See Tex. DisciplináRY R. PROf’l Conduct 3.08(a). Conversely, Rule 3.08(b) applies when an attorney may be compelled to testify in a manner “that will be substantially adverse to the lawyer’s client.” Id. 3.08(b). In either instance however, “rale 3.08 ‘should rarely be the basis for disqualification.’ ” Chu, 134 S.W.3d at 464 (quoting May v. Crofts, 868 S.W.2d 397, 399 (Tex.App.-Texarkana 1993, orig. proceeding)); accord Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990) (orig.proceeding); accord Tex. DisciplináRY R. PROf’l Conduct 3.08 cmt. 9.

From the limited record before us, it cannot be determined whether Pettigrew would testify that the conveyance from Larry’s father to Larry was a gift or whether Pettigrew even possesses knowledge of facts relevant to this issue. However, a party seeking disqualification of an attorney under Rule 3.08 “must present evidence that the testimony of the lawyer is ‘necessary’ and that it goes to an ‘essential fact’ of the nonmovant’s case.” Chu, 134 S.W.3d at 464 (quoting In re A.M., 974 S.W.2d 857, 864 (Tex.App.-San Antonio 1998, no pet.)); accord May, 868 S.W.2d at 399; Tex. DisciplináRY R. Prof’l Conduct 3.08(a).

The comments to Rule 3.08 recognize the potential for abuse when the rule is used as a basis for disqualification. See Tex. Disciplinary R. Prof’l Conduct 3.08 cmts. 9-10. Thus, a party seeking disqualification in this situation should “demonstrate actual prejudice to itself from the opposing lawyer’s service.” Id. (emphasis added); accord Ayres, 790 S.W.2d at 558; May, 868 S.W.2d at 399.

Larry at best established a potential for prejudice to himself from Pettigrew’s role as Carmen’s counsel in the divorce. Cf. id. He did not at all establish that Pettigrew’s testimony will be “necessary” to establish an “essential element” of Carmen’s case. See Chu, 134 S.W.3d at 464; A.M., 974 S.W.2d at 864. Conversely, assuming Pet-tigrew might testify in a manner adverse to Carmen, “that is a matter to be resolved between [Pettigrew] and [Carmen] or in a subsequent disciplinary proceeding.” Tex. DisciplináRY R. Prof’l Conduct 3.08 cmt. 10.

To have Pettigrew disqualified, Larry “must show” that “disqualification is necessary because the trial court lacks any lesser means to remedy [his] harm.” Nitla, 92 S.W.3d at 423 (emphasis added). From the record, it does not appear that Larry proffered any lesser alternatives to Respondent or that Respondent on his own considered lesser alternatives. By faffing to consider lesser alternatives such as prohibiting Pettigrew from testifying about the deed transaction, Respondent misapplied the law and committed a clear abuse of discretion. See id.; see also E.I. DuPont, 136 S.W.3d at 223.

Because Larry failed to establish actual prejudice and because Respondent failed to consider lesser alternatives, Respondent abused his discretion by granting the motion to disqualify. Carmen has no adequate remedy at law. Therefore, we conditionally grant the requested writ of mandamus. The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has vacated the order granting Larry’s motion to disqualify Pettigrew.

      . Subsection (a)(1), which applies when the new client "questions the validity of the lawyer's services or work product for the former client,” does not apply here. See Tex. Disciplinary R. Prof’l Conduct 1.09(a)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex State Bar R. art. X, § 9).