author: BOB PEMBERTON, Justice.

text:
    Mayor Hector GONZALES, Commissioner Kenneth W. Moon, Commissioner Thomas Trantham, and Village of Webberville, Appellants, v. CONCERNED CITIZENS OF WEBBERVILLE, David Glass, Ricky Turner, Jeannette Johnston, Robert Coe, James Sansom, Carroll Sansom, Matthew Pond, and Weldon R. Johnston, Appellees.
    No. 03-05-00014-CV.
    Court of Appeals of Texas, Austin.
    July 28, 2005.
    Rehearing Overruled Aug. 31, 2005.

      Monte L. Swearengen, Douglas M. Becker, Gray & Becker, P.C., Austin, for Appellants.
    James Chrisman Phillips, Lloyd, Gossel-ink, Blevins, Rochelle & Townsend, P.C., Austin, for Appellees.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

Our disposition of this accelerated interlocutory appeal turns on whether appellees have standing to challenge the incorporation of a municipality. Because we hold that appellees’ pleadings and the evidence demonstrate that appellees challenge the incorporation as voidable rather than void, we vacate the denial of the plea to the jurisdiction and dismiss for want of jurisdiction.

BACKGROUND

The underlying dispute in this case concerns whether the village of Webberville was properly incorporated as a Type C municipality. See Tex. Loc. Gov’t Code Ann. § 8.001 (West 1999). The following facts are undisputed. Webberville is a community located in eastern Travis County whose historical origins date back to the mid-1830s. On December 2, 2002, appellants Gonzales, Moon, and Trantham filed a petition with the Travis County Judge to incorporate a land area in and around the Webberville community as a Type C municipality. See id. § 8.002 (West 1999). The petition alleged that the community included fewer than 2,000 inhabitants and not more than two square miles of surface area. See id. § 5.901 (West 1999) (community with fewer than 2,000 inhabitants must have not more than two square miles of surface area); id. § 8.001. The petition also included a detailed textual statement describing the proposed perimeter boundaries and a plat providing a graphic illustration of the boundaries. Within the outer perimeter boundaries were various “holes” that were excluded from the area to be incorporated.

The petition was signed by more than fifty registered voters residing within the proposed municipal boundaries. See id. § 8.002. Attached to the petition was Trantham’s sworn statement that the proposed boundaries included more than 201 inhabitants. See id. § 8.001 (area incorporating as Type C general-law municipality must have between 201 and 4,999 inhabitants).

When a petition for incorporation is filed, the county judge is required to order an incorporation election if “satisfactory proof is made that the community contains the requisite number of inhabitants.” Id. § 8.003 (West 1999). The county judge heard evidence on the petition at a hearing held on December 17, 2002. The evidence included a December 16 memorandum from Joseph P. Gieselman, Executive Manager of the Travis County Transportation and Natural Resources Department. The Gieselman memorandum states that “through aerial photography we have been able to verify that there are 215 houses in the proposed areas. With a household size of 2.47 for Travis County (U.S.Census), multiplied by the number of houses would equal approximately 530 persons.” Reviewing the statutory requirements for a Type C general law municipality, Giesel-man stated that the department “has now determined that the area is 1.98 square miles” and that “petitioners have therefore met the statutory requirements of the law under criteria # (1) [local government code section 5.901(1) ] and as a Type C General-Law municipality.”

The county judge then found satisfactory proof that the statutory requirements had been met, including that the “area to be incorporated contains fewer than 2,000 inhabitants and does not have more than two square miles of surface area, therefore satisfying the requirements of Texas Local Government Code, § 5.901.” Thus, he ordered an election on Saturday, February 1, 2003, in which the voters residing within the proposed village of Webberville would decide whether to incorporate that entity. The incorporation election was closely contested; the vote in favor of incorporation was ninety-four to eighty-seven. Concurrently, the voters elected Gonzales as may- or and Moon and Trantham as commissioners. See id. § 8.001(b). Appellees have not contested the results of this election.

On February 18, the county judge ordered the community of Webberville, as contained within the territory and boundaries identified in the petition, incorporated as a Type C General Law Municipality. In the order, Gonzales was declared mayor and Moon and Trantham commissioners. The new village government then adopted various ordinances in March, including a right-of-way management ordinance, an ordinance creating a municipal court, an ordinance granting a utility franchise, a traffic-regulation ordinance, and a flood damage prevention ordinance. Additionally, moratoriums on subdivisions, excavations, and buildings were adopted. On May 3, the voters approved a sales and use tax of 1.75% in a special election.

On May 20, 2003, appellees filed suit against Gonzales, Moon, Trantham, and the City of Webberville seeking a permanent injunction prohibiting the sales tax and enforcement of the ordinances and moratoriums. While the suit was pending, on May 15, 2004, Gonzales, Moon, and Trantham were each re-elected to their village government posts. In June, both sides filed motions for summary judgment, and appellants filed a plea to the jurisdiction. After hearing evidence, which included the Gieselman memorandum, the district court denied the plea to the jurisdiction and both motions for summary judgment. Appellants then brought this interlocutory appeal from the denial of their plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (West Supp.2004-05).

DISCUSSION

Appellants present three issues on appeal that challenge the district court’s denial of their plea to the jurisdiction. They urge that private parties like appellees lack standing to challenge a municipal incorporation that is not void ab initio; that only the State, through a quo warranto action, can bring such a challenge against a cíe facto municipality; and that private parties may not collaterally attack a municipal incorporation where municipal boundaries, as drawn, comply with statutory limits on surface area.

Appellees concede the legal principles that private parties lack standing to challenge municipal incorporations that are not void ab initio and that Texas law requires a quo warranto action to challenge defacto municipalities. See Durham v. Crutchfield, 578 S.W.2d 438, 440 (Tex.Civ.App.-Texarkana 1979, writ ref'd n.r.e.); see also Walling v. North Cent. Tex. Mun. Water Auth., 162 Tex. 527, 348 S.W.2d 532, 533 (1961). However, appellees assert that they are challenging Webberville’s incorporation as void — specifically, they contend that appellants failed to comply with the statutory requirement limiting the municipality’s surface area to two square miles. See Tex. Loc. Gov’t Code Ann. §§ 5.901, 8.001.

Appellees also argue that because they have challenged Webberville’s incorporation as void and not merely voidable, appellants cannot bring this appeal because Webberville’s status as a “governmental unit” remains in issue. See Tex. Civ. Prac. <& Rem.Code Ann. §§ 51.014(a)(8), 101.001 (West 2005). Appellants respond that appellees have failed to raise an issue that Webberville’s incorporation is void and thus, Webberville retains the status of a de facto municipality unless and until it is judicially deprived of that status in a properly asserted quo war-ranto action.

We agree with appellants that our threshold jurisdictional inquiry overlaps somewhat with the merits of appellants’ plea to the jurisdiction — if appellees’ pleadings and evidence do not raise a fact issue regarding whether Webberville’s incorporation was void due to noncompliance with statutory area limitations, their claim would necessarily fail and Webberville would continue to enjoy the status of a de facto municipality with standing to bring this appeal. We accordingly turn to these intertwined issues.

Standard of review

Whether appellees have alleged facts that affirmatively demonstrate subject-matter jurisdiction is a question of law reviewed de novo. See Miranda, 133 S.W.3d at 226. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is also a question of law. Id. In some cases, disputed evidence of jurisdictional facts that also implicates the merits of the case may require resolution by the finder of fact. See id. (citing Gates v. Pitts, 291 S.W. 948, 949 (Tex.Civ.App.-Amarillo 1927, no writ)). In this case, however, undisputed evidence implicates both the subject-matter jurisdiction of the court and the merits of the case. Miranda, 133 S.W.3d at 226.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). We construe the pleadings liberally in favor of the plaintiffs and look to their intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27; see County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Miranda, 133 S.W.3d at 226-27.

However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id.; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the fact finder. Miranda, 133 S.W.3d at 228. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court may rule on the plea to the jurisdiction as a matter of law. See id.

Application

Defects in the incorporation process which render the incorporation absolutely void are limited to allegations: (1) that the act of incorporation itself was either prohibited or unauthorized by law; (2) that the purported incorporation was pursuant to an unconstitutional statute; or (3) that the attempt to comply with the provisions of the law authorizing the creation of such municipality was so utterly lacking or defective as to render the attempt to create such corporation void. Durham, 578 S.W.2d at 441. Appellants concede that a violation of the surface area limitation requirements would constitute the third type of defect. See Tex. Loc. Gov’t Code Ann. §§ 5.901, 8.001.

Turning first to appellees’ pleadings, it is undisputed that appellees have alleged that Webberville’s incorporation was void. On its face, appellees’ live petition alleges that the “incorporation of the purported Village of Webberville is void (not merely voidable) and the efforts to exercise of [sic] municipal powers by Defendants Gonzales, Moon and Trantham are illegal because the community was statutorily prohibited from incorporating because it exceeds the two square mile surface prohibited by Tex. Loc. Gov’t Code Ann. §§ 5.901(1) and 8.01(3).” (Emphasis added.) Based on these pleadings alone, the district court would have properly denied the plea to the jurisdiction. See Durham, 578 S.W.2d at 440-41.

However, appellants introduced undisputed evidence — specifically, the Giesel-man memorandum — that Webberville’s incorporated area was less than two square miles. See Miranda, 133 S.W.3d at 227; Bland, 34 S.W.3d at 555; see also Tex. Loc. Gov’t Code Ann. §§ 5.901, 8.001. Appellees, in fact, concede that the municipal boundaries were intentionally drawn to include less than two square miles of surface area. Their contention, rather, is that appellants violated the statutory surface area limitations and rendered the incorporation void by including within the incorporated territory “unincorporated voids, forming islands of unincorporated areas within a sea of municipal territory,” excluding “local historic Webberville community locations such as a downtown church and residences traditionally considered to be part of the Village.” The parties do not dispute that the areas within the excluded “donut holes” are uninhabited. They also agree that if the excluded areas were included in the calculation of surface area, the incorporated area would exceed two square miles in violation of section 5.901. See Tex. Loc. Gov’t Code Ann. § 5.901.

Appellants respond by claiming that the areas were excluded for valid reasons including avoiding power line easements, flood plains, or areas within the extra-territorial jurisdiction of the City of Bastrop. See id. § 42.041 (West 1999) (municipality may not be incorporated in extraterritorial jurisdiction of existing municipality without written consent of governing body of existing municipality); see also Hoffman v. Elliott, 476 S.W.2d 845, 846 (Tex.1972). We need not consider the validity of these reasons because appellees’ argument turns purely on a question of statutory interpretation: whether an incorporated area of less than two square miles of surface area, which thus complies with the literal language of section 5.901, nonetheless violates the limitation because it excludes “islands” or “holes” that, if included, would cause the area to exceed two square miles. See Tex. Loc. Gov’t Code Ann. § 5.901. As they explained during oral argument, appellees’ position is essentially that the legislature could not have intended section 5.901 to allow appellants to “carve out” islands or holes within the perimeter of municipal boundaries.

If language in a statute is unambiguous, we consider the intent of the legislature as found in the plain and common meaning of the words and terms used. See Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994); see also Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 564 (Tex.2000). In applying the plain and common meaning of the language in a statute, courts may not by implication enlarge the meaning of any word in the statute beyond its ordinary meaning; such implication is inappropriate when legislative intent may be gathered from a reasonable interpretation of the statute as it is written. Sorokolit, 889 S.W.2d at 241; see Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990); see also Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995) (general rule is that courts should not insert words in statute except to give effect to clear legislative intent). On its face, section 5.901 requires only that an incorporated area contain less than two square miles. See Tex. Loc. Gov’t Code Ann. § 5.901. It contains no requirement that the incorporated area be fully inclusive of all surface areas within its perimeter boundaries, or even that the incorporated area be a single contiguous area. See id. Significantly, the legislature has chosen to include this type of requirement in other statutes. See id. § 43.071 (West 1999) (generally, municipality may not annex area in water or sewer district unless it annexes entire part of district outside municipality’s boundaries); Tex. Educ.Code Ann. § 41.206 (West 1996) (property may be annexed by school district without regard to whether property is contiguous to other property in district); Id. § 13.051 (West 1996) (territory may be detached from school district and annexed by another school district that is contiguous to detached territory); see also Tex. Loc. Gov’t Code Ann. § 43.054 (West Supp.2004-05) (generally, municipality with population less than 1.6 million may not annex publicly or privately owned area, including strip of area following course of road, highway, river, stream, or creek, unless width of area at narrowest point is at least 1,000 feet). We must assume that the legislature acted deliberately in omitting such limitations from section 5.901. See Sorokolit, 889 S.W.2d at 241. In light of the language the legislature has chosen to govern the surface area limitations of Type C general law municipalities, we must reject appellees’ contention that we infer an additional, contrary limitation. See Tex. Loc. Gov’t Code Ann. §§ 5.901, 8.001; see also Sorokolit, 889 S.W.2d at 241. Furthermore, appellees have cited no authority that would support their construction of section 5.901. Unless and until the Texas Supreme Court instructs us otherwise, we are bound to construe the statutory text as written.

Additionally, while we do not find these factors to be dispositive, we note that the parties agree that none of the areas excluded from the incorporated area were inhabited. Thus, this is not a case where it is alleged that the petitioners manipulated the municipal boundaries in order to impact the incorporation election. Moreover, we observe that if we were to declare the Webberville incorporation void, we would be judicially supplanting the will of the voters in that municipality. Implicit in our democratic constitutional system is that, barring the type of extraordinary issues regarding ballot compilation that are addressed in election contests, see Tex. Elec.Code Ann. §§ 221.001-.017 (West 2003 & Supp.2004-05), which are not presented here, elections should be decided by voters rather than courts. Cognizant of our proper role in our constitutional scheme, we are reluctant to intervene in the Webberville incorporation election based on appellees’ novel construction of section 5.901.

We conclude that appellees have failed to raise a fact issue that the Webberville incorporation was void ab initio. Accordingly, appellees cannot show that Webber-ville is not a de facto municipality; thus, appellants have the legal right to pursue this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8). For the same reasons, we hold that the district court erred in denying appellants’ plea to the jurisdiction. Because the legal basis of appellees’ complaint is that the incorporation is voidable, not void, appellees lack standing to pursue their claims, the State of Texas is a necessary party, and a quo warranto action is the only remedy through which appellees’ claims may be advanced. Durham, 578 S.W.2d at 440-41. Appellants’ first and second issues are sustained.

Because we have already found that a quo warranto action was required in this case, we do not reach appellants’ issues regarding whether the factual findings of the county judge may only be collaterally attacked through a quo warranto action, or whether appellees have sufficiently alleged a special burden which would confer standing on them if the incorporation was void. See City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 727 (Tex.1971) (“even if the municipal act is void, the private party must suffer some burden peculiar to himself to acquire standing to sue.”).

CONCLUSION

We vacate the district court’s order denying appellants’ plea to the jurisdiction and dismiss appellees’ petition for want of jurisdiction.

      .The record suggests that the incorporation effort was spurred by a land use issue; specifically, certain residents were concerned about gravel mining in the area and had a desire to create a local government that could regulate such activities. We are not asked to address the validity of any regulatory actions in this appeal.

      . In the "excluded properties” section of the statement, the property is listed by description — i.e., "power line easement” or "excluded rectangle” — in addition to the number of acres excluded.

      . Webberville no longer has a United States Post Office; area residents who signed the petition had mailing addresses in Manor and Elgin.

      . Gonzales ran unopposed. Moon defeated appellee Weldon Johnston, and Trantham defeated Stephen Turner, son of appellee Ricky Turner.

      . See Texas Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.2004).

      . As the Durham court explained:
      [I]t is clear that a quo warranto proceeding, instituted and conducted in the name of the State of Texas, is the only proper method of making a direct attack upon a voidable municipal corporation existing de facto or under color of law. Private parties, by themselves, lack standing to directly attack the existence and organization of a municipal corporation, and any such suit brought by private individuals alone will be dismissed for want of a necessary party, the State of Texas. Only the State of Texas can directly attack a voidable incorporation by a quo warranto proceeding.

        Durham v. Crutchfield, 578 S.W.2d 438, 440 (Tex.Civ.App.-Texarkana 1979, writ ref'd n.r.e.).

      . We express no opinion regarding the implication of such an allegation, although we note that one of our sister courts has held that "gerrymandering” of boundaries did not render an incorporation election void. See City of Gladewater v. Pelphrey, 309 S.W.2d 472, 473 (Tex.Civ.App.-Texarkana 1957, writ ref'd n.r.e.).


source: Caselaw Access Project

author:
TERRIE LIVINGSTON, Justice.
      LEE ANN DAUPHINOT, Justice,

license: Public Domain

text:
    James Thomas QUATTROCCHI, Appellant, v. The STATE of Texas, State.
    No. 2-04-421-CR.
    Court of Appeals of Texas, Fort Worth.
    July 28, 2005.

      David Richards, Fort Worth, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Kimberly Wesley, Jim Hudson, and Shane Lewis, Asst. Criminal District Attys., Fort Worth, for State.
    Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant James Thomas Quattrocchi appeals his jury conviction on two counts of bodily injury to a child for injuring one of his sons whom he had disciplined for lying. After the jury convicted appellant, the trial court sentenced him to ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice on both counts with the sentences to be served concurrently. We affirm.

Background

Appellant, a divorced father of two boys, had told his eleven-year-old son, the complainant, that if the complainant lied to him again, appellant would burn the complainant’s tongue. One weekend, while both boys were visiting at appellant’s house and playing video games with a friend, the complainant called the friend “stupid.” Appellant asked whether the complainant said that, but the complainant denied it. Appellant told the complainant to go get a lighter. When the complainant did so, appellant grabbed complainant’s tongue with a paper towel and held the lit lighter under his tongue for about six seconds. After this, appellant also slapped complainant in the face about twenty times, causing complainant’s nose to bleed. Appellant told both the boys not to tell anyone what happened. The next day, however, the complainant told his mother what happened, and she took him to the hospital.

Both boys testified to the same facts, and the medical evidence showed that complainant suffered from first-and-second degree bums under his tongue. Appellant also testified, claiming that the complainant’s lying had been a consistent problem for over a year and that he had threatened this punishment only to stop the lying and as a form of discipline. Appellant also testified that he had no intention of actually burning complainant’s tongue and that he did not burn it that day. He denied having held the flame under complainant’s tongue for as long as complainant said and denied that the flame came into contact with complainant’s tongue. Appellant also stated that he slapped complainant only three or four times and did not cause a nose bleed, only that he knocked complainant’s glasses off.

Points on Appeal

Appellant’s points on appeal all relate to alleged charge error regarding his parental justification defense under section 9.61 of the Texas Penal Code. Tex. Penal Code Ann. § 9.61 (Vernon 2003). He contends that the trial court erred in not applying the law on this defensive theory to the facts of the case; that the charge given was fatally confusing because the “initial words of the charge place the reasonable doubt burden on [him]”; and that the charge erroneously placed “the burden of proof on his defensive issue on appellant beyond a reasonable doubt, when that burden belonged on the State” as required by sections 2.08(d), 9.02, and 9.61 of the penal code. Id. §§ 2.03(d), 9.02, 9.61.

In order to appropriately address charge error issues, we must first determine whether there is error in the jury charge. Posey v. State, 966 S.W.2d 57, 60 (Tex.1998). To make this determination, we must decide whether this defense requires a special instruction and, if so, whether one was required under the facts of this case.

Parental Justification Defense Defined

The parental justification defense of Texas Penal Code section 9.61 is available only in those cases in which a parent, or one properly acting as a parent, uses nondeadly force and “when and to the degree the [person] reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” Tex. Penal Code Ann. § 9.61(a)(2); Prenger v. State, 108 S.W.3d 501, 506 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); see also Tex. Penal Code Ann. § 9.01. “The use of force under section 9.61 is not justified simply because of a parent’s subjective belief that the force is necessary; rather, the use of force is justified only if a reasonable person would have believed the force was necessary to discipline the child or to safeguard or promote the child’s welfare. ” Assiter v. State, 58 S.W.3d 743, 748 (Tex.App.-Amarillo 2000, no pet.) (emphasis supplied). The “reasonable belief’ standard is an objective standard. Id.; see also Tex. Penal Code Ann. § 1.07(a)(42) (Vernon Supp.2004-05) (defining “reasonable belief’ as that held by “an ordinary and prudent man in the same circumstances as the actor”).

Does the Parental Justification Defense Require a Special Instruction?

The charge to the jury must set forth “the law applicable to the case.” Gray v. State, 152 S.W.3d 125, 127-28 (Tex.Crim.App.2004). The primary source for this general directive can be found in article 36.14 of the code of criminal procedure, which requires courts to instruct the jury on the law applicable to the case. Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon Supp.2004-05); Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App.2000) (op. on reh’g); Bluitt v. State, 70 S.W.3d 901, 903 (Tex.App.-Fort Worth 2002), rev’d on other grounds, 137 S.W.3d 51 (Tex.Crim.App.2004). Courts should also charge on every defensive issue raised by the evidence. Boget v. State, 74 S.W.3d 23, 31 (Tex.Crim.App.2002). When evidence raises a defensive issue and the defendant properly requests a jury charge on that issue, the court must submit that issue to the jury as well. Tex.Code Crim. Proc. Ann. art. 36.15; Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002).

Additionally, sections 2.03(c) and 2.04(c) of the penal code require the court to charge on defenses and affirmative defenses if evidence of the defense is raised by the evidence. Tex. Penal Code Ann. §§ 2.03(c), 2.04(c). If it is simply a “defense,” then “the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” Id. § 2.03(d). If it is an “affirmative defense,” then “the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.” Id. § 2.04(d).

In Giesberg v. State, the court of criminal appeals determined that defenses that have been created by the legislature that tend either to totally exonerate a defendant or to excuse or justify a defendant’s conduct so that he is absolved of culpability, such as those identified in chapters eight (General Defenses to Criminal Responsibility) and Nine (Justifications for Criminal Conduct) of the penal code, require a special instruction. 984 S.W.2d 245, 248-50 (Tex.Crim.App.1998), cert. denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999); see also Ortiz v. State, 93 S.W.3d 79, 92 (Tex.Crim.App.2002) (holding defensive instruction on suicide not required because it is not a statutorily-enumerated defense and serves merely to negate certain elements of the offense), cert. denied, 538 U.S. 998, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003). Thus, the court of criminal appeals concluded that only those defenses recognized by the legislature as either a defense or as an affirmative defense warrant a separate instruction. Giesberg, 984 S.W.2d at 250.

The parental justification defense of chapter nine is not considered an affirmative defense; it is a defense. Assiter, 58 S.W.3d at 746 n. 3. Because it is a statutory defense recognized by the legislature, an instruction is required if there is some evidence to support it. See Huizar, 12 S.W.3d at 483. Although on appeal the State contends that the evidence did not raise the defense, at trial the State conceded the propriety of giving a 9.61 parental defense instruction. Therefore, we assume the evidence sufficiently raised the defense. We must now determine whether the trial court gave a proper instruction.

Was the Parental Justification Defense Properly Given?

After the parties had both rested, the trial court asked whether either had any objections to the proposed charge. Appellant objected and requested that the trial court add an instruction on the parental justification defense described in section 9.61 of the penal code to two places in the charge: right before the reasonable doubt instruction being given for both counts. The defense requested the following:

It is a defense to prosecution that the actor use[d] force, but not deadly force, against a child younger than 18 years of age. The actor was the child’s parent, and the force used was to the degree which the actor reasonably believed the force was necessary to discipline the child or safeguard or promote the child’s welfare.

The trial court agreed, but the prosecution requested that the additional charge on the parental justification defense “track the statute as close as possible.” Further, the prosecution asked the trial court to add definitions on “reasonable belief’ and “serious bodily injury” from section 1.07 of the code and “deadly force” from section 9.01 of the code. See Tex. Penal Code Ann. §§ 1.07(a)(42), (46), 9.01(3). The trial court granted the State’s request also and directed both parties to coordinate with the court reporter to make the changes to the charge. When court reconvened, the judge asked if both parties were ready and confirmed that the changes had been made. Neither side raised any further objections, and the revised charge was read to the jury.

The charge given the jury included a parental justification defense instruction along with definitions for “deadly force,” “serious bodily injury,” and “reasonable belief.” While the charge included a parental justification defense instruction, it was not the same wording as requested by appellant. Instead of the language requested, the instruction stated,

The use of force, but not deadly force, against a child younger than 18 years is justified if the actor is the child’s parent or stepparent or is acting in loco paren-tis to the child and when and to the degree ... the actor reasonably believes the force is necessary to discipline the child or to safe-guard or promote his welfare.
In “loco parentis” includes [a] grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof you will acquit the Defendant of the offense of Injury to a Child-Bodily Injury and say by your verdict “Not Guilty.”

The preceding three paragraphs were included not once but twice, after each of the application paragraphs for the two counts — one count alleging bodily injury by burning the child’s tongue and the other count alleging injury by striking the child in the face with appellant’s hand. These paragraphs included the language of the parental justification defense directly from the statute. Additionally, the definitions for deadly force, serious bodily injury, and reasonable belief were included in the preliminary abstract portion of the charge. Thus, we conclude that the instruction was included in the two places requested by appellant, right before the last paragraph of each count. Moreover, we also note that the wording submitted by the trial court was virtually identical to that proposed by appellant. Neither the language proposed by appellant nor the language submitted by the trial court included language “applying” the law to the facts of the case or language specifically placing the burden of proof on the State with regard to the defense. In other words, appellant’s proposed instruction was also strictly definitional in nature; it did not include a proposed application of the law of the parental justification defense to the particular facts of this case, nor did it include separate instructions on who had the appropriate burden of proof. And, significantly, appellant requested, or at least agreed, that the instruction be placed immediately before the final reasonable doubt paragraph of each count that included the general instruction on burden of proof.

Despite the foregoing, appellant maintains that the charge was fatally confusing, that it placed the burden of proof for the defense on him, and that it failed to include a proper application paragraph. We disagree for several reasons.

First, the instruction was not fatally confusing. The instruction was very simple and tracked the statutory language of the defense itself. Further, elements of the defense, such as “deadly force” and “reasonable belief,” were clearly defined in the abstract portion of the charge. We overrule appellant’s second point.

Second, we do not believe that the instruction placed the burden of proof for the defense on appellant. The burden of proof instruction for each count was in the very last paragraph and stated, “Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of Injury to a Child-Bodily Injury and say by your verdict ‘Not Guilty.’ ” Moreover, the burden of proof instruction immediately followed the special instruction on the parental justification defense. And nowhere in this language does the instruction move the burden of proof to the defense. While the burden of production would remain with the defense, which is true for any defense or defensive theory, the burden of proof for the offense itself remains with the State under this charge. We overrule appellant’s third point.

Lastly, we do agree with appellant that the instruction on the defense was not completely “applied” to the facts of his case. However, the instruction was placed immediately after both counts’ application paragraphs and before each reasonable doubt instruction. Thus, the defense was clearly available as to each count. Moreover, each instruction was substantially similar to the instruction requested by appellant, each instruction was inserted where requested by appellant, and appellant raised no further complaints or objections after both sides had worked on the charge.

In situations like this, the court of criminal appeals has applied the “invited error rule” to claimed jury charge error. See Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App.2002), cert. denied, 538 U.S. 965, 123 S.Ct. 1760, 155 L.Ed.2d 519 (2003). “If the trial court submitted it [the jury instruction] at appellant’s request, then appellant invited any error and he cannot now be heard to complain.” Id.; Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). This court has applied the invited error rule to jury charge error as well. See Willeford v. State, 72 S.W.3d 820, 823 (Tex.App.-Fort Worth 2002, pet. ref'd). We cannot see why this doctrine should not be applicable to all of appellant’s charge complaints and, in particular, to his complaint regarding the lack of a clear application paragraph for his parental justification defense. Because of this, appellant may not now complain on appeal that the charge submitted by the trial court was erroneous. We overrule appellant’s first point.

Conclusion

Because we have overruled all of appellant’s points, we affirm the judgment of the trial court.

DAUPHINOT, J. filed a concurring opinion.

LEE ANN DAUPHINOT, Justice,

concurring.

I concur in the majority’s result but not its analysis, other than that regarding invited error. The jury instruction is confusing and does shift the burden of proof to the defendant. The express instruction essentially orders the jury to acquit the defendant unless the jury finds the parental defense from the evidence or has a reasonable doubt thereof.

Reading the instruction as written leads to an absurd result, but this is the instruction that Appellant insisted upon, and it is incorporated into the jury charge exactly as he requested. Appellant cannot now complain about error that he invited.

      . The Texas Court of Criminal Appeals also instructs us in Giesberg that we should use the term “defense” only when referring to those defenses recognized by the legislature. Giesberg, 984 S.W.2d at 250. We will therefore refer to "defenses” and "affirmative defenses” as those recognized by the legislature and will use the terms "defensive theory” or "defensive issue” to refer to those theories that are not so recognized and that generally only rebut an element of an offense.

      . Appellant asked that the parental justification instruction be placed in two different locations, but "the same thing” for each count. First, he asked it to be placed in the abstract portion of the charge before the general reasonable doubt instruction, and second, before the reasonable doubt instruction as to count two. However, he also states that it should be "the same thing,” which we interpret to mean before the reasonable doubt instruction as to each count as opposed to before the reasonable doubt instruction given in the abstract portion of the charge. This is the likely request because the final charge included the parental justification defense instruction before the reasonable doubt instruction given in connection with each count’s application paragraph. All the relevant definitions were included in the abstract portion of the charge. Our analysis is somewhat limited because the proposed charge, which apparently had numbered pages and paragraphs to which counsel refers in the charge conference, is not included in the appellate record.

      . We note that if the sentence were to be interpreted as appellant contends, that "unless you so find from the evidence beyond a reasonable doubt [that appellant’s use of non-deadly force was justified], ... you will acquit,” the result would be absurd. If the charge erroneously places the burden of proof on appellant, it would read, "unless you so find from the evidence beyond a reasonable doubt [that appellant’s use of nondeadly force was justified], you will return a verdict of guilty-” The use of "unless” shows that the burden of proof remained on the State.

      . See Prystash v. State, 3 S.W.3d 522, 531-32 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000).


author: LEE ANN DAUPHINOT, Justice. TERRIE LIVINGSTON, Justice,

text:
    Sammie Joe TODD, Appellant, v. Billie Evelyn TODD, Appellee.
    No. 2-04-328-CV.
    Court of Appeals of Texas, Fort Worth.
    July 28, 2005.
    Reconsideration En Banc Overruled Aug. 31, 2005.

      David J. Moraine, Crosbie Moraine, L.L.P., Denton, TX, for Appellant.
    Jim J. Hatcher, and Lee Tatum Hatcher & Harris, P.C., Gainesville, TX, for Appel-lee.
    Panel A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

In three issues, Appellant Sammie Joe Todd appeals from a divorce and the related division of the community estate. The couple has no children. Because we hold that the trial court properly confirmed the separate property of Appellee Billie Evelyn Todd and did not abuse its discretion in dividing the community estate, we affirm the trial court’s judgment.

In his first two issues, Appellant contends that the trial court erred in confirming the “home and acreage located in Gainesville, Cooke County, Texas, together with all improvements thereon, further described as follows: 137 acres of land in Cooke County, Texas, out of the Thomas Hardeway Survey, Abstract No. 464,” (“the farm”) as Appellee’s separate property because (1) no evidence supports its characterization as separate property and (2) insufficient evidence was introduced at trial to overcome the community presumption.

“Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” This presumption can be rebutted by clear and convincing evidence. Clear and convincing evidence is defined as that “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

Appellee testified that she lived on road 2117, 550, had a farm out there, and owned the farm before the marriage. Appellant testified that “[w]hen I came there, there was no tractor there.” He also testified,

When I went there, and here’s the witness, this lady [Appellant’s sister] knew the woman before I did, and she has been in this woman’s house before I was ever there.
When I went into her house, we walked up three concrete steps to get in the house, and just as you got in the house, there was a hall light hanging by one wire. It was floating in the ah’ there, and her whole house looked like that, that represented her whole house.
When I went there, there was two iron gates on that ranch. Today there is seven iron gates on that ranch, [emphasis added]

Appellant also referred to the house as “her” house several times and made a point of saying, “That house had suffered a fire years ago, and in other words it needed everything you could think of, that house needed, and that woman didn’t — it needed a man with some horsepower and some money and that is what I did.... ”

Appellant appears to argue that because Appellee did not refer to the legal description of her farm or offer into evidence some document, such as a deed, showing her separate ownership of the farm, she failed to defeat the community presumption. Appellee testified that she lived on road 2117, 550 and that she had a farm out there. No evidence was admitted at trial concerning any other farm or ranch. We conclude that under these facts, Appellee sufficiently described the location of the farm to identify it. Additionally, all the evidence at trial points to the conclusion that the farm belonged to Appellee before the marriage. In fact, at trial, Appellant never claimed the farm was community property; he spoke of the farm and the house on it as “hers.” No evidence controverts this conclusion. We therefore hold that Appellee defeated the community presumption by clear and convincing evidence. Consequently, the trial court did not abuse its discretion by confirming the farm as Appellee’s separate property. We overrule Appellant’s first two issues.

In his third issue, Appellant contends that the trial court abused its discretion in disproportionately dividing the community estate in a manner that was manifestly unfair. A trial court is charged with dividing the community estate in a “just and right” manner, considering the rights of both parties. If there is any reasonable basis for doing so, we must presume that the trial court exercised its discretion properly. We will not disturb the trial court’s division unless the record demonstrates “that the division was clearly the result of an abuse of discretion.” That is, we will not reverse the ease unless the record clearly shows that the trial court was acting arbitrarily or unreasonably. The complaining party has the burden of proving from the record that the division was so unjust that the trial court abused its discretion. The values of individual items “are evidentiary to the ultimate issue of whether the trial court divided the properties in a just and right manner.”

The trial court awarded Appellant all property in his possession or subject to his sole control. In the affidavit attached to his motion for new trial, he states that that property

consisted of [his] clothes and a 1997 pickup truck that is worth less than-$5,000. In addition, [he] kept a 1984 Ford automobile that is worth less than $1,000, and a shotgun[,] all of which [he] owned prior to marriage. [He] also had two cases of oil, one bed spread, two pillows, one headboard, a mattress, a chain saw[,] and weedeater.

The record contains no evidence concerning the value of the community assets awarded to Appellee. Consequently, we cannot say that Appellant has met his burden of proving that the division was so unjust that the trial court abused its discretion. We overrule Appellant’s third issue.

Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

LIVINGSTON, J. filed a dissenting opinion.

TERRIE LIVINGSTON, Justice,

dissenting.

I respectfully dissent to the majority opinion because I cannot agree with the characterization of the property in this marital estate by the trial court and affirmed by the majority opinion in this court. In this divorce proceeding, both parties asked the trial court to divide the marital estate and additionally to confirm to each of them their alleged separate property. Prior to the trial of this matter, appellant had been represented by two different attorneys. The second attorney was allowed to withdraw on April 1, 2004 with the case set for trial on May 17, 2004. No discovery took place, and although there are indications that the parties might have provided each other with their claimed inventories, no inventory is contained within the clerk’s record.

At trial, appellee appeared with counsel, but appellant appeared pro se. Only three witnesses testified at trial: appellee, appellant, and appellant’s sister. Appellee submitted an exhibit that listed the items she was claiming or asking the court to award to her. Ultimately, appellee was awarded all of the property in her possession, and appellant was awarded all of the property in his possession. Appellee was not awarded reimbursement for any of appellant’s withdrawals from appellee’s claimed separate account. Both parties testified that they expended community and separate property funds improving the residence located on the 137-acre tract that was also awarded to appellee. While the final decree granted neither party any type of reimbursement from one to the other, the court did award all of the personal property and realty requested by appellee to her. The trial court awarded the largest asset — the 137-acre tract located in Cooke County, Texas — to appellee and confirmed it as her separate property.

Under the Texas Family Code, there is a presumption that property possessed by either spouse at the dissolution of the marriage is presumed to be community property. Tex. Fam.Code Ann. § 3.003(a) (Vernon 2004); Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.App.-Fort Worth 2004, pet. denied). At divorce, only the community property is subject to a just and right division. Barnard, 133 S.W.3d at 789; Boyd v. Boyd, 67 S.W.3d 398, 406 (Tex.App.-Fort Worth 2002, no pet.).

Moreover, we know that the party who seeks to assert the separate character of property must prove that character by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b); Barnard, 133 S.W.3d at 789-90. “To overcome the statutory presumption of community property!)] the spouse must trace and clearly identify the property claimed as separate property.” Barnard, 133 S.W.3d at 789-90. When the burden of proof at trial is clear and convincing evidence, on appeal we apply higher standards of legal and factual sufficiency review. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002); In re C.H., 89 S.W.3d 17, 25-26 (Tex.2002); Irvin v. Parker, 139 S.W.3d 703, 707-09 (Tex.App.-Fort Worth 2004, no pet); Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no pet.).

The evidence in the case amounts to virtually nothing. Appellee testified that she wanted $67,000 returned to her out of funds that she claims appellant expended out of her separate account. She admits she bought a tractor. But appellee called no other witnesses to the stand and submitted no proof of any claims for reimbursement and no evidence supporting her claim that she owned the 137-acre tract prior to marriage. Appellant testified that they both deposited them pension checks into the account referred to by appellee. Appellant deposited $1,850 per month, and appellee deposited $1,150 per month. He testified “that’s what we lived on ... what we bought and fixed the house with, and all the other repairs that we ran on.” He also testified that he used proceeds from the sale of a home he previously owned in Fort Worth to buy the tractor and a $2,000 stove.

As mentioned above, the parties undertook no discovery and included no inventories in this appellate record. Appellee did not offer any deeds into evidence or testify to their existence or to the property’s legal description. She never even testified to the date when the 137-acre tract was acquired or offered any testimony about how it was acquired. In light of the higher burden of proof at trial — clear and convincing — and the higher standard of review on appeal, I can find no basis for supporting the characterization of the real property as appellee’s separate property. “To overcome the statutory presumption of community property, the spouse must trace and clearly identify the property claimed as separate property.” Barnard, 133 S.W.3d at 789-90. Because this was not done, I believe the 137-acre tract should have been classified as community property. I would therefore remand this case to the trial court for another hearing regarding the division of the parties’ property.

      . Tex Fam.Code Ann. § 3.003(a) (Vernon 2004).

      . Id. § 3.003(b).

      . Id. § 101.007 (Vernon 2002); Transp. Ins. Co. v. Morid, 879 S.W.2d 10, 31 (Tex.1994).

      . See Am. Fin. and Inv. Co. v. Herrera, 20 S.W.3d 829, 832-33 (Tex.App.-El Paso 2000, no pet.); Davis v. Davis, 647 S.W.2d 781, 784 (Tex.App.-Austin 1983, no writ) ("Had the written decree simply described the property by its street address, it would clearly have been appropriate for the trial court to subsequently amend the decree to include a metes and bounds description of the property.”); Mizell v. Mizell, 624 S.W.2d 782, 784-85 (Tex.App.-Fort Worth1981, no writ).

      . See In re Marriage of Case, 28 S.W.3d 154, 159-60 (Tex.App.-Texarkana 2000, no pet.); see also Mackey v. Lucey Prods. Corp., 150 Tex. 188, 239 S.W.2d 607, 608 (Tex.1951) ("The law does not require the doing of a vain and useless thing, and by our opinions and judgments we will not so require.”).

      . Appellant made no claim for economic contribution at trial. See Tex. Fam.Code Ann. § 3.403.

      . Tex. Fam.Code Ann. § 7.001 (Vernon 1998).

      . Fletcher v. Goetz, 9 S.W.3d 442, 446 (Tex.App.-Fort Worth 1999, pet. denied) (op. on reh'g).

      . Id.

      . See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

      . Pletcher, 9 S.W.3d at 446.

      . Finch v. Finch, 825 S.W.2d 218, 221 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Wallace v. Wallace, 623 S.W.2d 723, 725 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ dism’d).

      . Both parties’ petitions asked the court to divide their marital estates and to confirm their separate property. Additionally, appellant’s motion for new trial specifically challenged the trial court’s characterization of the farm.


author: Opinion by Justice ROSS.

text:
    Stow Kingdon HART, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00118-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 2, 2005.
    Decided Aug. 24, 2005.

      Jeff C. Starnes, McLaughlin, Hutchison, Starnes & Biard, LLP, Paris, for appellant.
    Deborah Moore, Asst. Dist. Atty., Gary Young, Dist. Atty., Paris, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Stow Kingdon Hart appeals from his conviction by a jury for aggravated sexual assault. The jury assessed his punishment at ninety-nine years’ imprisonment. Before trial, the court held a hearing before a separate jury to determine whether Hart was competent to stand trial. The jury found him competent. Counsel raises a number of issues on appeal directed at both the competency hearing and the trial on the merits.

The Hearing on Competency

We first review the issues related to the competency determination. Hart contends the court erred by denying his motion for continuance because of the State’s delay in turning over copies of examination videotapes made by a nontestifying State’s expert, Mary Conroy, and relied on by a testifying State’s expert, David Bell, until five o’clock on the evening before jury selection was to begin for the competency hearing, and because Conroy’s report was not provided until after the trial. Hart argues that, because of these failures, his counsel was unable to adequately prepare for the competency hearing.

This case involved a number of continuances obtained by Hart. There were several hearings at which the parties discussed the various experts who had been contacted, and whether the issue would be competency or sanity, and when information would be provided about the results of the experts’ tests. The evidence ultimately shows that the four videotapes, containing six and one half hours of interview time by Conroy, were delivered to counsel on Monday afternoon, but one was blank. When informed of this, the State made a replacement copy and delivered it to counsel on Tuesday at 5:00 p.m., the afternoon before the hearing was set to begin. After an extensive discussion of the length of time that Hart had been incarcerated awaiting trial, and the various other trial settings and a scheduled vacation of one of the attorneys, the court denied Hart’s motion for a fifth continuance.

Hart contends the court erred by denying his motion for continuance. A trial court’s ruling on a motion for continuance is reviewed for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App.1995); see Tex.Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 1989). To establish an abuse of discretion, there must be a showing the defendant was actually prejudiced by the denial of the motion. Janecka v. State, 987 S.W.2d 456, 468 (Tex.Crim.App.1996); Heiselbetz, 906 S.W.2d at 511.

Hart had not made bail and had been incarcerated between the date of his arrest July 23, 2003, and the competency trial May 26, 2004. Hart had originally argued to the trial court he believed Conroy’s report might contain information favorable to the defense and thus he needed it to adequately cross-examine Bell about his conclusions. Conroy’s report was not provided until after the hearing. Bell testified he had relied on the videotapes, not on Conroy’s report. Conroy was retained to address the issue of Hart’s sanity, not his competency to stand trial. Counsel argues that, in the absence of an earlier delivery of the videotapes and a timely delivery of Conroy’s report, the defense was unable to effectively prepare for trial. Counsel did, however, two days before the hearing, have most of the interview that resulted in the report and had the remainder the afternoon before the hearing. In addition, although counsel generally argues prejudice, he makes no concrete suggestion of how the lateness of the delivery actually influenced his presentation or cross-examination at the hearing, or any actual prejudice that might have resulted. Our review shows that counsel did, in fact, ably question the expert about his observations of Hart and his alleged second personality, and discussed the concepts and theories connected with the existence of multiple personalities in a careful and understandable manner.

The trial court had reasons to deny the additional continuance, and even if some error had existed in its so doing, there is no indication of harm from this record. The contention is overruled.

Hart next contends the court erred during the competency hearing by refusing to allow him to voir dire the jury panel and to later submit a charge to the jury on the factors considered by an expert in determining competency. Counsel is evidently referring to the trial court’s refusal to either allow him additional time to inform the jurors about Disassociative Identity Disorder or to question them further about the disorder. Thirty minutes per side was allotted for voir dire. The trial court did not rule that the area of questioning was improper; instead, the court pointed out that counsel had sufficient time to ask such questions, counsel had chosen not to, and counsel had wasted portions of his voir dire time, and the court then denied the request for additional time. No specific questions were propounded by counsel.

A trial court may impose reasonable restrictions on the exercise of voir dire examination, including reasonable limits on the amount of time each party can question the jury panel. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995). A reasonable time limitation for one case may not be reasonable for another, and each case must be examined on its own facts. Ratliff v. State, 690 S.W.2d 597, 600 (Tex.Crim.App.1985); Ganther v. State, 848 S.W.2d 881, 882 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). The amount of time allotted is not, standing alone, conclusive. Ratliff, 690 S.W.2d at 600; Ganther, 848 S.W.2d at 882. However, a trial court may not restrict proper questions that seek to discover a juror’s views on issues relevant to the case. McCarter v. State, 837 S.W.2d 117, 121-22 (Tex.Crim.App.1992). Absent an abuse of discretion, we will not reverse the trial court’s refusal to allow defense counsel additional time on voir dire. See id.; Caldwell, 818 S.W.2d at 793; Dhillon v. State, 138 S.W.3d 583, 587 (Tex.App.Houston [14th Dist.] 2004, no pet.).

When a party complains of an inability to collectively question the venire, a two-part test applies: (1) whether the complaining party attempted to prolong the voir dire; and (2) whether the questions the party was not permitted to ask were proper voir dire questions. See McCarter, 837 S.W.2d at 121; Dhillon, 138 S.W.3d at 587-88.

In this case, it does not appear that counsel attempted to prolong the voir dire. However, there are no specific questions propounded, and in the absence of such, it is impossible to determine whether the questions that might have been propounded were proper or improper. The question, as stated by counsel, presents only a general topic for discussion, indicating counsel merely wanted to question the panelists about whether the disorder was an illness they could consider and to let them know the nature of that disease. The question was not narrowly tailored in scope. See Barajas v. State, 93 S.W.3d 36, 40-41 (Tex.Crim.App.2002); Smith v. State, 703 S.W.2d 641, 645 (Tex.Crim.App.1985); Dhillon, 138 S.W.3d at 589. Error has not been preserved for review.

Under this contention, Hart also complains of the trial court’s failure to grant his request to charge the jury with the elements the statute directs experts to consider in their examinations of defendants for competency. Tex.Code Crim. Proc. Aun. art. 46B.024 (Vernon Supp. 2004-2005). The jury was charged as set out in Tex.Code Ckim. PROC. Ann. art. 46B.003 (Vernon Supp.2004-2005), which provides the definition of incompetency.

Defense counsel’s requested instruction contains factors set out by the statute as being necessary for the expert to consider in making his or her determination. Those factors were subject to questioning of the experts at the hearing, but that does not necessarily translate into factors that must be individually presented to the jury in the charge. There is no authority requiring those factors to be separately sent to the jury, and they are on their face factors directed at the expert for use in the expert’s evaluation. Error has not been shown.

Hart also argues that the court erred by failing to disqualify the State’s expert after the State’s attorney took actions aimed at ensuring that the expert examined Hart without counsel present. As acknowledged by counsel, a defendant has no right to have counsel present during questioning by an expert in a competency examination. Purtell v. State, 761 S.W.2d 360, 374 (Tex.Crim.App.1988) (applying Sixth Amendment analysis and concluding that, although defendant has right to be warned and counsel has right to be informed of proposed examination, defendant has no right to have counsel present during examination). Counsel argues that, despite the caselaw to the contrary, Hart should have been allowed to bring an attorney with him because it would provide an opportunity for defense counsel to observe the interviewer and to more effectively cross-examine such expert at the competency hearing. We are unpersuaded, and in light of the holding of the Texas Court of Criminal Appeals, we are bound to apply that law as articulated by that court. The contention is overruled.

Hart also contends the trial court erred by not granting a motion for new trial after one of the prosecutors made faces at Hart during final argument at the competency hearing, causing Hart to respond in kind in front of the jury. The argument is that the prosecutor engaged in a type of prosecutorial misconduct. Claims of this nature are examined on a case-by-case basis. The Texas Court of Criminal Appeals has suggested some nonexclusive factors that are worthy of review in analyzing such a claim. First, the defendant objected to the conduct of the prosecutor. Second, the prosecutor was, by his or her actions, deliberately violating an express court order. Third, in reversing the cited cases, the court relied on prosecutorial misconduct so blatant as to border on being contumacious. Stahl v. State, 749 S.W.2d 826, 831 (Tex.Crim.App.1988); Landry v. State, 706 S.W.2d 105, 111 (Tex.Crim.App.1985).

There are several unique factors in this case. There was no objection, as explained by appellate counsel, because at the time of the alleged misconduct he was in his own final argument and was neither looking at opposing counsel nor his client, and only became aware of the allegations after trial. Under these circumstances, we are reluctant to hold that any claim has not been preserved, because it involves allegations of wrongdoing that were allegedly specifically hidden from counsel’s sight, and the lack of a contemporaneous objection was therefore understandable. Counsel’s raising of the contention in his motion for new trial, supported by the affidavit of the defendant’s wife, is sufficient to bring the matter before us as a review of the trial court’s denial of the motion. The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court’s decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993).

In this ease, the court conducted a hearing on the motion for new trial and was confronted with evidence a prosecutor had made faces at the defendant; the prosecutor, however, testified she had not done so. The court’s denial of the claim was thus supported by evidence the event did not occur. Faced with that situation, we cannot conclude that the court’s decision was arbitrary or unreasonable. The contention of error is overruled.

The Trial on the Merits

Hart contends the court erred by refusing to allow him to introduce the testimony of his expert witness, Joann Ondrovik, Ph. D., a psychologist, that in her opinion Hart was acting under the influence of an alternate identity, the “blue man,” at the time of the offense and therefore could not have voluntarily or knowingly committed the offense. Hart argues that, even though he withdrew his insanity defense before trial, he should have been able to introduce evidence about the nature of his illness through his expert, argue that he lacked the mens rea necessary for criminal responsibility and did not engage in a voluntary act.

Hart cites Mendenhall v. State, 77 S.W.3d 815, 816 (Tex.Crim.App.2002), in support of his position. In that case, Men-denhall was diabetic and assaulted a public servant. He claimed the assault occurred during a time when he was “unconscious or semi-conscious due to hypoglycemia” and as a result he “did not knowingly, intentionally, or recklessly try to cause [the victim] harm,” id., and requested a jury instruction on the defense of insanity due to involuntary intoxication, which the trial court refused. In upholding the trial court, the Texas Court of Criminal Appeals stated:

[T]he fact that two other defenses — the no-mental-state defense and the no-voluntary-act defense — are readily available to persons who were unconscious or semi-conscious at the time of the alleged offense suggests that the Legislature did not intend for the insanity defense also to apply to them. That is, persons who were unconscious or semi-conscious at the time of the alleged offense may argue either that they lacked the mens rea necessary for criminal liability, see Tex. PemCode § 6.02(a), or that they did not engage in a voluntary act, see Tex. Pen.Code § 6.01(a).

Id. at 818.

In the instant case, however, Hart at no time contended he was unconscious or semi-conscious at the time of the commission of the offense, and the trial court rejected Ondrovik’s testimony as not being relevant.

We use an abuse of discretion standard when reviewing the trial court’s decision on the admission of evidence. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615.

Hart, having abandoned his plea of insanity, and making no contention he committed the offense while unconscious or in a semi-conscious condition, we cannot say the trial court’s ruling was outside the zone of reasonable disagreement. We therefore conclude that, under these facts, the trial court did not abuse its discretion by refusing to admit testimony at the guilt/innocence stage of the trial about the alleged second personality.

Hart next contends the court erred by failing to grant his challenges for cause against prospective jurors 10, 27, and 48 — and then refusing to grant him additional peremptory strikes. In our review, we look to see if the trial court abused its discretion in denying an appellant’s challenges for cause. Murphy v. State, 112 S.W.3d 592, 600 (Tex.Crim.App.2003). In reviewing a trial court’s decision to grant or deny a challenge for cause, we are to look at the entire record to determine if there is sufficient evidence to support the court’s ruling. Sells v. State, 121 S.W.3d 748, 759 (Tex.Crim.App.2003). We give great deference in our review to the trial court’s decision because the trial court is present to observe the demeanor of the venireperson and to listen to such person’s tone of voice. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002); King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App.2000). We have been directed to give particular deference when the potential juror’s answers are vacillating, unclear, or contradictory. Feldman, 71 S.W.3d at 744; King, 29 S.W.3d at 568.

Hart argues that his challenges for cause should have been sustained because juror number 10 stated that, when she first saw Hart, she wondered what he had done and assumed he was guilty because he was there, and was leaning toward voting guilty during voir dire; because juror number 27 was a former sexual assault victim; and because juror number 48 had heard about the case from a friend who was a Paris fireman (the victim is the wife of a Paris fireman), and had already made up her mind that an offense had occurred and that she could not disregard that belief.

Each juror was questioned individually about the matters set out by Hart. In each instance, each withdrew his or her equivocation and stated clearly that he or she could act in a fair manner, based solely on the evidence at the trial, without any impact on deliberations from any other source. Under this state of the evidence, we find the evidence sufficient to support the trial court’s ruling. The contention of error is overruled.

Hart next contends the trial court erred by limiting Hart’s voir dire examination of the jury panel on the range of punishment for aggravated sexual assault or the lesser included offense of sexual assault. Hart was accused of aggravated sexual assault with a deadly weapon, with two enhancements. The range of punishment (as indicted) was five to ninety-nine years’ imprisonment with no enhancement, fifteen to ninety-nine years’ confinement with one enhancement, or twenty-five to ninety-nine years with two enhancements.

The Texas Court of Criminal Appeals has stated repeatedly that both the state and the accused have the right to inform the jury of the range of punishment applicable to an offense, including a range that is enhanced, and to qualify the panel on the full range of punishment. Martinez v. State, 588 S.W.2d 954, 956 (Tex.Crim.App. [Panel Op.] 1979); Bevill v. State, 573 S.W.2d 781, 783 (Tex.Crim.App.1978). Under this formulation, the state may inform the jury panel of the range of punishment applicable if the state was to prove a prior conviction for enhancement purposes, but the state may not inform the jury of any specific allegations contained in an enhancement paragraph of a particular defendant’s indictment. Frausto v. State, 642 S.W.2d 506, 509 (Tex.Crim.App. [Panel Op.] 1982); Estes v. State, 873 S.W.2d 771, 773 (Tex.App.-Fort Worth 1994, pet. ref'd).

In this case, Hart was not permitted to voir dire the jury on the range of punishment that would have been proper had the State failed to prove its enhancements, or if the jury had found Hart guilty of a lesser-included offense. Under the cases cited above, this is error.

Thus, we turn to the question of harm. Hart was convicted of the greater offense, aggravated sexual assault, with a deadly weapon finding, and with both enhancements found to be trae, and was sentenced under the range of punishment for which the jury was actually questioned. We disapprove of the trial court’s refusal to allow counsel to qualify the jury panel on the full range of punishment for the crime. However, because the sentence was determined under the range about which the panel was actually qualified, there was no harm in this instance. The contention of error is overruled.

Hart next raises a procedural issue: that the court committed reversible error by conducting the trial on the merits before all issues involving competency were finally resolved. Specifically, Hart complains his motion for new trial on competency was not ruled on until over a month after his trial on the underlying charge of aggravated sexual assault. Hart’s argument is based on Tex.Code Crim. Proc. Ann. art. 46B .004(d) (Vernon Supp.2004-2005), which provides, “If the court determines there is evidence to support a finding of incompetency, the court ... shall stay all other proceedings in the case.” Hart argues that, because the competency issue was not finally resolved, the trial was begun prematurely, in violation of the statutory stay.

The statutes also provide that, if a jury determines a defendant is competent, the court shall continue the trial with another jury selected for that purpose. Tex.Code Crim. Proc. Ann. art. 46B.053 (Vernon Supp.2004-2005). The statutes do not indicate that a motion for a new competency trial is available, because the jury’s determination of competency to stand trial is not a final, appealable judgment. See Ortega v. State, 82 S.W.3d 748 (Tex.App.Houston [1st Dist.] 2002, no pet.); Lowe v. State, 999 S.W.2d 537, 537 (Tex.App.Houston [14th Dist.] 1999, no pet.).

Rule 21.4 of the Rules of Appellate Procedure provides that a defendant may file a motion for new trial before, but no later than thirty days after the date when the trial court imposes or suspends sentence in open court. Tex.R.App. P. 21.4. No sentence is imposed or suspended as the separate result of a competency hearing, but only as a result of the prosecution of the criminal charge. Accordingly, a motion for new trial is not an appropriate method to attack the ruling on competency and has no effect on this proceeding. The contention of error is overruled.

Hart next contends the court erred by overruling his motion for directed verdict. His argument is based on evidence that the gun was a BB gun, not a pellet gun as specifically alleged in the indictment. When the gun was introduced, the sponsoring officer read the identification stamping that identified it as a Powerline Model Number 93, C02 BB gun.

Hart argues under variance law that, because the indictment specified the gun was a pellet gun, which varied substantially from proof it was a BB gun, he was entitled to a directed verdict. “A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). Only a material variance requires reversal. See Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App.2002). “The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant’s ‘substantial rights’ is immaterial.” Gollihar, 46 S.W.3d at 247-48; see Rojas v. State, 986 5.W.2d 241, 246 (Tex.Crim.App.1998). The defendant has the burden of demonstrating surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex.Crim.App.2001). To determine whether a defendant’s “substantial rights” have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge against her or him sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248; Brown v. State, 159 S.W.3d 703, 709 (Tex.App.-Texarkana 2004, pet. ref'd).

In Fuller, the Texas Court of Criminal Appeals held that a variance between an indictment alleging the victim was “Olen M. Fuller” and the evidence at trial which referred to the victim as “Mr. Fuller” or as “Buddy” was an immaterial variance. Fuller, 73 S.W.3d at 254. Similar to Fuller, the variance in this case does not involve a statutory element of the offense and there is no showing that Hart was surprised or prejudiced by the variance. The indictment, as written, sufficiently informed Hart of the charge against him and the variance would not subject Hart to another prosecution for the same offense. The variance is immaterial. The contention of error is overruled.

Hart next raises several claims of error in connection with the admission of evidence in connection with the BB gun. He contends the court erred by allowing the State to designate and name an expert witness in midtrial to testify about the gun. A “standard” discovery order was entered by the trial court that directed both parties to disclose their expert witnesses no later than twenty days in advance of trial. Hart, in an abundance of caution, filed a request for a hearing to determine the State’s compliance with that order. A hearing was held, at which the delivery of evidence expected to be used at trial was discussed. The court reiterated that, under the discovery order, evidence was to be turned over no later than thirty days before trial, unless a good faith or reasonable cause exception applied.

The complained-of testimony is that of police sergeant Chris Brooks. He testified about a number of matters, including videotapes, an interview with the victim, his examination of the location of the attack, and characteristics of the gun. At no point during his testimony was he offered or qualified as an expert witness, nor did the court ever recognize him as such. During one discussion out of the jury’s presence, the prosecutor clearly stated that Brooks was being used as a lay witness only. His testimony describing the gun was not based on “scientific, technical, or other specialized knowledge,” but explicitly on his personal experiences using a BB or pellet gun. Accordingly, the complaint that he was improperly permitted to testify as an expert despite the State’s failure to disclose that he would be used as such is without foundation in the record. Further, there was no objection suggesting that his testimony was the sort that could only be provided by an expert. The contention of error is overruled.

Hart also contends the court erred by refusing to allow him to have Brooks demonstrate .to the jury that the gun was incapable of being fired, and by refusing to allow him to have the gun tested by his own expert to determine whether it was capable of firing. As pointed out, the barrel of the gun was plugged with some type of rubbery substance, and the slide for loading the gun was “glued in.” Under those circumstances, the gun was clearly inoperable when taken into the possession of the police three days after the attack.

Hart contends he should have been allowed his own expert witness because the State used its own expert to examine and testify about the gun. We have already determined the witness was not qualified as, and did not testify as, an expert. The argument fails. The contention of error is overruled.

Hart further contends he should have been allowed to demonstrate that the gun was incapable of firing and that Brooks’ belief that someone could “shoot out” the obstruction in the barrel had no basis in reality. The reality is that the requested act could not have occurred during the trial. The evidence unequivocally shows it was impossible to load the gun with a BB, because both ends of the barrel were inaccessible — the slide for loading was glued shut and the end of the barrel was plugged. It might have been possible to pull out the obstruction for loading, but such removed material would then have to be reinserted to determine whether one could shoot through the identically reinserted obstruction. It is apparent such a demonstration was not likely to produce an accurate result. The trial court did not abuse its discretion in disallowing the demonstration. Further, the evidence clearly demonstrated to the jury that the gun was incapable of firing. Thus, additional evidence to that effect by a live demonstration would at best be cumulative of evidence already before the jury.

Under Rule 403, all relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. Arguably, because part of the definition of deadly weapon includes anything that “in the manner of its use or intended use is capable of causing death or serious bodily injury,” the question of whether a gun works is relevant to the issue of whether a deadly weapon was used. However, because the evidence in this case unequivocally shows that the gun was inoperable, a live demonstration would at best have been cumulative of the evidence already before the jury. We do not find that the trial court abused its discretion by refusing to allow the introduction of the demonstrative evidence suggested. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

Under this contention, Hart also contends he should have been permitted to present an identical BB gun to the jury— one that had not been altered and clearly showed the brass end of the barrel to indicate the gun was a BB gun, not a firearm. In support of his position that similar items may be introduced before the jury, he cites three cases, each of which involved situations where the actual item was not available for the jury’s inspection, and introduction of a similar item was shown to assist the fact-finder in its determination. In this case, the actual gun was before the jury, and there is no persuasive reason articulated that would require an identical (but unaltered) gun to be admitted into evidence. We find no abuse of discretion. See id.

Hart next contends the court erred by allowing the State to introduce a pen packet not previously and timely provided to counsel as required by the trial court’s discovery order and the court’s pri- or ruling on Hart’s compliance motion. The pen packet was from Missouri and contained documents showing two convictions in that state. The packet was certified June 30, 2004, by the Missouri Department of Corrections, although the State’s counsel informed the trial court it had been received June 29. A new pen packet was prepared and introduced reflecting the correct certification date. Counsel objected to its admissibility because it was not timely provided and because the packet contained a Texas judgment that had been faxed to Missouri. Counsel provides no authority to support his argument. He does not suggest surprise, because he was informed of the enhancements, along with the cause numbers of the Missouri convictions, by a document filed October 20, 2003, and notice was therefore provided and timely. See Brooks v. State, 957 S.W.2d 30, 31 (Tex.Crim.App.1997). He suggests no way in which he was harmed by the late presentation.

It is obvious that the actual packet was not provided before trial, as required by the court’s “Standard Discovery Order.” Further, this type of documentary evidence is the type contemplated by the order. However, the order contains specific limiting language by which it requires the State to turn over all documents that might be offered at trial and “which are in the possession, custody or control of the State or any of its agencies.” This pen packet was not in the possession, custody, or control of the State until midtrial. Accordingly, the order was not violated on its face, and no error has been shown.

Hart next contends the trial court erred by failing to suppress his written statement. He argues he was coerced by the officer into giving a statement and thus his statements and the DNA evidence thereafter obtained should have been suppressed. Our review of the record reflects that this is a misstatement. The motion to suppress evidently covered Hart’s written consent to obtain DNA samples and a consent to search the residence. There is no statement or confession in evidence.

In our review of the trial court’s ruling on suppression, we recognize that the trial court is the exclusive trier of fact and judge of the credibility of the witnesses, and our review of its ruling is limited to a determination of whether the trial court abused its discretion. The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

Consent must be voluntary to be effective, and if that consent is the result of coercion, the consent is involuntarily obtained. In determining whether consent was voluntary, we look to certain relevant factors, such as: the youth of the accused; the education of the accused; the intelligence of the accused; the constitutional advice given to the accused; the length of the detention; the repetitiveness of the questioning; and the use of physical punishment. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App.2000); State v. Hunter, 102 S.W.3d 306, 311 (Tex.App.Fort Worth 2003, no pet.). Additionally, testimony by law enforcement officers that no coercion was involved in obtaining the consent is evidence of the consent’s voluntary nature. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App.2000); Hunter, 102 S.W.3d at 311. Consent is not rendered involuntary merely because the accused is under arrest. Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App.2002); Harrison v. State, 144 S.W.3d 82, 88 (Tex.App.-Fort Worth 2004, pet. granted). A police officer’s failure to inform the accused that he or she may refuse consent is a factor to consider in determining the voluntariness of consent; however, the absence of such information does not automatically render the accused’s consent involuntary. Johnson, 68 S.W.3d at 653; Levi v. State, 147 S.W.3d 541, 545 (Tex.App.-Waco 2004, pet. ref'd).

The evidence consisted of a videotape (and its transcription) of the process through which consent was obtained. Hart points to the parts of the process where he was told that he “needed to give the officers what they needed in order to clear his name,” that it would be better off in the long run for him and his family that the police go to his residence. There is no evidence of physical mistreatment; there is evidence Hart was in custody at the time (although the officer was uncertain himself); and that Miranda warnings were read to him. Hart was in his early forties at the time of the offense, so youth was not a consideration. Although there was a competency hearing, the evidence in that regard showed he had at least average intelligence, and there was no indication he was not competent at the time he gave consent. Although unclear, the trial court was informed that Hart had been with the police approximately an hour before being given the Miranda warnings and that the consent was given about four hours after he came to the police station. The record does not show any activity by the officers that would be such as to overpower the free will of the defendant, and we do not find that the court abused its discretion by denying the motion to suppress.

Hart next contends the trial court erred by failing to grant him a new trial after it was discovered that juror Stephanie Flynn did not disclose she had been previously married to Paris police officer Jeff Kinslow, nor did she disclose that Kinslow’s uncle had been the victim of a capital murder during an armed robbery. This information was brought to the court’s attention during the hearing on Hart’s motion for new trial. Hart argues Flynn did not respond truthfully during voir dire and, because of this failure, a juror who he would have struck was on the jury.

When a juror withholds material information during voir dire, the parties are denied the full opportunity to intelligently exercise their challenges, thus hampering them selection of a disinterested and impartial jury. Franklin v. State, 138 S.W.3d 351, 355 (Tex.Crim.App.2004). A defendant is entitled to reversal if the omission is material and the defendant has exercised due diligence in eliciting that information. Id. at 356.

Counsel asked the panel, “Who all here is involved in law enforcement or has a close friend, family member, or relative that is involved or has been involved in law enforcement?” Flynn did not respond. However, Flynn was divorced seven months earlier from the police officer, which necessarily means that neither Kin-slow nor his relatives were family members or relatives. It is likely she also does not consider her ex-husband a close friend, and the ex-husband’s uncle had been killed over ten years earlier.

In his closing questions to the jury panel, Hart’s counsel also asked jurors to respond if they felt that, “You know, if you had asked that question, I would have raised my hand; and there is no way in the world they would pick me to be on that jury?” The answer to that question is one that is necessarily internalized, and there is no evidence that bears on the matter. Cf. Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex.Crim.App.1995) (existence of ongoing close friendship and relationship not reversible when questions asked not specific enough to draw out the answer).

The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court’s decision was arbitrary or unreasonable. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.2001); Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). Based on the information before the trial court, we cannot find that the court’s decision was unsupportable, nor can we say the questions were not sufficiently specific to the nondisclosed information to allow a conclusion that Flynn answered untruthfully. The contention of error is overruled.

Hart finally contends the trial court erred by showing the jury photographs of the tattoos of nude women on his thighs. He objected at trial, arguing they were more prejudicial than probative because of their subject matter, specifically in light of the victim’s previous testimony she could not identify the tattoos — but did testify there were tattoos on the thighs of her attacker. Hart offered to stipulate there are tattoos on his thighs. The court overruled Hart’s objections and allowed admission of the photographs.

Counsel argues the photographs of the tattoos were of such graphic subject matter they would sway the jury in some irrational and emotional fashion. The stipulation would undeniably have served to meet the State’s needs in this instance, especially since the victim could not describe their appearance. The admission of evidence subject to this objection is controlled by Tex.R. Evid. 403, which provides (among other things) that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Once a defendant objects to photographic evidence on the basis of Rule 403, the trial court must weigh its probative value against its potential for unfair prejudice. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App.1992). An appellate court reviewing the trial court’s decision may reverse only for an abuse of discretion, i.e., only when the trial court’s decision was outside the zone of reasonable disagreement. Id. The trial court must consider the “host of factors affecting pro-bativeness ... and balance those factors against the tendency, if any, that the photographs have to encourage resolution of material issues on an inappropriate emotional basis.” Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App.1999).

In this case, although the tattoos are graphic representations of a nude woman, they are not such that we believe they would necessarily sway a jury into resolving the case based on emotion rather than reason. We find the decision to be within the zone of reasonable disagreement. The contention of error is overruled.

We affirm the judgment.

      . That same day, Hart delivered the videotapes of his expert’s examination of Hart to the State.

      . A party attempts to prolong the voir dire when such party asks irrelevant, immaterial, or repetitious questions. Ganther, 848 S.W.2d at 882-83.

      . Where individual questioning is involved, a defendant must also show that he or she was not permitted to examine jurors who served on the jury. Ratliff, 690 S.W.2d at 600.

      . See Tex. Pen.Code Ann. §§ 6.01(a), 6.02(a) (Vernon 2003).

      . The State suggests that, because Hart clearly knew the enhancements would be proven, no error exists. That is incorrect, and had the State failed to prove the enhancements, an entirely different situation would exist, with Hart being denied his right to question the panel about the correct range of punishment.

      . There is evidence a BB gun can fire one type of pellet, which is the same diameter as a BB. The evidence also shows a BB gun such as this one has a smooth bore, while a gun described as a pellet gun has a rifled bore.

      . The order states "not later than twenty (20) days....”

      . See generally Tex.Code Crim. Proc. Ann. art. 26.05(h) (Vernon Supp.2004-2005); McBride v. State, 838 S.W.2d 248 (Tex.Crim.App.1992).

      . Tex. Pen.Code Ann. § 1.07(a)(17)(B) (Vernon Supp.2004-2005).

      . See Fletcher v. State, 902 S.W.2d 165, 166 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).

      . We note that Tex.R.App. P. 38.1(h) requires counsel to make clear and concise arguments for his or her contentions, with appropriate citations to authority.

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

      . Hart also was required to roll up his sleeves and display the tattoos on his arms. The victim was able to specifically identify and describe these tattoos.