author: ANNE GARDNER, Justice.

text:
    Bryan Jerome MOORE, Appellant, v. The STATE of Texas, State.
    No. 2-03-030-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 9, 2004.

      J.R. Molina, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of the Appellate Division, C. James Gibson, Jay Lapham, Mollee Westfall, Asst. Crim. Dist. Attys., Fort Worth, for Appellee.
    PANEL A: CAYCE, C.J.; GARDNER and McCOY, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant Bryan Jerome Moore appeals from his conviction by a jury for the offense of knowingly causing injury to a child. Appellant complains in three issues of appeal that the trial court committed error (1) when it allowed the use of a doll to demonstrate the offense over Appellant’s objection, (2) when it allowed into evidence a written statement from a purported learned treatise over Appellant’s objection, and (3) when it refused Appellant’s requested jury charge regarding the lesser included offense of negligently causing injury to a child. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for the offense of knowingly causing serious bodily injury to a child younger than 15 years of age, L.M., by shaking her, which caused her to suffer traumatic brain injury. The State further alleged that the use of Appellant’s hands in shaking L.M. constituted the use of a deadly weapon. Appellant pleaded not guilty to the charge and not true to the allegation of a use of a deadly weapon. At trial, Gregory Noone, a Hurst police detective, testified that he first interviewed Appellant at Cook Children’s Hospital regarding the circumstances of injuries to L.M., a six-month old baby. Appellant denied causing the injury or having any knowledge of how L.M. sustained injury. Detective Noone interviewed Appellant again at a later date, at which time Appellant admitted that he was responsible for causing L.M.’s injuries. At the interview, Detective Noone asked Appellant to demonstrate on a doll how he caused L.M.’s injuries. At trial Detective Noone reenacted the demonstration on a doll similar to that used by Appellant. Appellant objected to the use of the doll and was overruled. Detective Noone demonstrated how Appellant had shaken L.M. and described how the head “whiplashed back and forth several times.”

Appellant testified that he watched L.M. on June 11th, while his wife, Linda, was at work. According to Appellant, he realized that L.M. had been sleeping all day and upon checking her noticed that she was limp and that her eyes were rolled back in her head. Appellant testified that he spent approximately thirty minutes to an hour trying to wake L.M. by “squeezing water on her face” and “patting her face.” L.M. still had not awakened when Linda returned home from work, at which time Linda immediately took L.M. to the hospital.

Appellant admitted shaking L.M. on three or four occasions, but denied shaking her during June, the month L.M. was admitted to the hospital with her injuries. Over his objection, Appellant was also asked to demonstrate how he had shaken L.M. in the past. Appellant testified and demonstrated that, in an attempt to get L.M. to stop crying, he would bounce her on his knee. Appellant testified that when L.M. would not stop crying, the “motion” would become more intense, but he continued to only bounce L.M. on his knee. Appellant further testified that when bouncing L.M. on his knee, he supported her head and she never came off his leg. Appellant denied shaking the doll during his interview with Detective Noone as forcefully as Detective Noone had demonstrated. Appellant testified that the way he had demonstrated on the doll in the courtroom was the same way he had shaken the doll during his interview with Detective Noone.

During the State’s cross-examination, the prosecutor took the doll from Appellant and shook the doll as Detective Noone had demonstrated. Appellant agreed that this demonstration by the State was how Detective Noone had shaken the doll. Appellant’s counsel did not object to the prosecutor’s shaking of the doll at that time. However, Appellant’s counsel did object to the use of the doll during the State’s closing argument. During closing, the State argued that “anyone knows if you shake a baby like this, like what Detective Noone showed you that Bryan Moore showed him on June 29th, what do you know is going to happen? You’re not doing that for the baby’s welfare.” Appellant renewed his objection to the use of the doll and was overruled.

At trial Dr. Howard Kelfer, a child neurologist, testified that he had examined a CAT scan of L.M.’s brain taken upon L.M.’s admission to the hospital. Dr. Kel-fer testified that L.M. had received a “traumatic brain injury” and the trauma had probably occurred on several different occasions. Dr. Kelfer further testified that although L.M. was over two years old, she was unable to walk and her language skills were not developing. Additionally, Dr. Kelfer explained that L.M. suffered from “severe weakness on the right side of her body” and seizures, which were not able to be completely controlled by medication. Dr. Kelfer also testified that because of L.M.’s brain damage, she will be unable to attend school in a regular classroom setting. The jury found Appellant guilty of knowingly causing injury to a child and further found that Appellant used a deadly weapon, his hand, in the commission of the offense. The jury sentenced Appellant to forty years’ confinement.

Play Doll Simulation

In his first issue, Appellant complains that the trial court erred by allowing the State to use a play doll to demonstrate the offense because its probative value was substantially outweighed by the danger of unfair prejudice. Appellant complains that it was error for the trial court to allow the use of the doll for demonstration purposes during the State’s examinations of Detective Noone and Appellant and during the State’s closing argument.

An appellate court reviews a trial court’s decision on whether to admit or exclude evidence under an abuse of discretion standard of review. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). A trial court’s determination on admissibility of evidence will not be disturbed unless there is a clear abuse of discretion. Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1986). The trial court’s ruling will be upheld as long as it is within the “zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391.

Under Rule 403 of the Texas Rules of Evidence, evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury; by considerations of undue delay; or by needless presentation of cumulative evidence. Tex.R. Evid. 403. Rule 403 favors admissibility and presumes that relevant evidence will be more probative than prejudicial. Rayford v. State, 125 S.W.3d 521, 529 (Tex.Crim.App.2003), cert. denied, — U.S. —, 125 S.Ct. 39, 160 L.Ed.2d 35 (2004).

Appellant relies on United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993), to support his argument that the use of the doll to demonstrate how L.M. was shaken should have been excluded from evidence. In Gaskell, a prosecution expert demonstrated shaken baby syndrome on an infant mannequin and during the demonstration “forcefully shook the doll,” causing the head of the doll to swing back and forth. Id. at 1059. The expert testified that the neck of the doll used in the demonstration was stiffer than an infant’s; so greater force was necessary to cause the movement of the neck. Id. The Gaskell court stated that although a demonstration does not need to be identical to the original event, it “must be so nearly the same ... as to afford a fair comparison.” Id. at 1060. The court also noted that the offering party must lay a proper foundation showing the similarity between the demonstration and the event in question. Id. The Gaskell court held that the conditions of the demonstration were not sufficiently similar to the act in question because the doll’s neck was stiffer than an infant’s, thereby requiring more force to demonstrate shaken baby syndrome. Id. Since the demonstration was “substantially dissimilar” to the act in question, the probative value of the demonstration was outweighed by its prejudicial effects: “By displaying a greater degree of force than the level required to produce shaken baby syndrome in a seventh-month-old infant and by arbitrarily selecting a number of oscillations, the demonstration tended to implant a vision of Gaskell’s actions in the jurors’ minds that was not supported by any factual basis for the demonstration.” Id. at 1061.

Although the present case also involves the use of a doll for demonstration purposes, it is distinguishable from Gaskell. In Gaskell, the court found that the doll itself was dissimilar to an infant in that the doll’s neck was stiffer, thus requiring more forceful shaking. 985 F.2d at 1060. This difference was noted by defense counsel when objecting to the demonstration. Id. In the present case, the demonstration did not purport to show how the infant, L.M., was shaken but, rather, to show how Appellant shook the doll in the interview with Detective Noone. There was no objection that the doll used during trial was dissimilar to the doll used by Appellant when he previously showed how he had shaken L.M. Moreover, the State, in handing the doll to Detective Noone during trial, specifically asked him whether the doll used in court was similar to the doll used during his interview with Appellant, and he replied that it was similar. Therefore, the similarity between the use of the doll during the interview and the demonstration with the doll during trial meets Gaskell’s requirement that the conditions must be similar enough to provide a fair comparison.

Additionally, in Gaskell, the expert testified that his demonstration of shaken baby syndrome was based on the demonstration of a police officer in an unrelated case. 985 F.2d at 1060. The court found that the expert’s demonstration was not supported by any facts because neither the “degree of force [nor] the number of oscillations bore any relationship to the defendant’s actions.” Id. at 1061. In contrast, Detective Noone’s demonstration in this case was based on his own interview with Appellant. During this interview, Appellant used a similar doll to demonstrate to Detective Noone how he had shaken L.M. in the past. Detective Noone’s demonstration was based on this firsthand knowledge as an eyewitness gained during his interview with Appellant. The demonstration in court therefore was based on facts that did bear a substantial relationship to defendant’s actions. We hold that the trial court did not abuse its discretion in allowing the use of the doll by Detective Noone.

Likewise, the trial court did not abuse its discretion in allowing the Appellant to use the doll during the State’s cross-examination. Appellant demonstrated that he had bounced L.M. on his knee in the past in an attempt to calm her down. Appellant testified that when he could not get L.M. to stop crying, he became frustrated and angry. Appellant stated that “the motion starts to reflect the anger or whatever that-that I’m feeling, the frustration that I’m feeling. So I’m saying, hey, come on, be quiet, come on. So like it gets progressively a bit more intense.” Based on Appellant’s testimony, the foundation was laid that his demonstration with the doll in the courtroom did bear a “similarity of circumstances and conditions” to his actions with L.M. Gaskell, 985 F.2d at 1060. Since Appellant testified that he would grow frustrated and angry and that his “motion” with L.M. would grow more intense, it was appropriate to request that he demonstrate on a doll how he would react in these situations. It also afforded Appellant the opportunity to dispute the earlier demonstration by Detective Noone and to present to the jury his version of how he handled L.M. As Appellant was testifying as to his own conduct, his demonstration on the doll in the courtroom did afford a fair comparison to the act in question. See Gaskell, 985 F.2d at 1060 (“Although the conditions of the demonstration need not be identical to the event at issue, ‘they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed.’ ” (quoting Ill. Cent. Gulf R.R. Co. v. Ishee, 317 So.2d 923, 926 (Miss.1975))). We hold that the trial court did not abuse its discretion in allowing the use of the doll by Appellant.

Additionally, the trial court did not err in overruling Appellant’s objection to the use of the doll during the State’s closing argument. During closing argument, the State is permitted to summarize the evidence. See Cannon v. State, 668 S.W.2d 401, 404 (Tex.Crim.App.1984) (discussing the four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement). Because the evidence presented at trial included witnesses’ demonstrations with the doll, the State’s use of the doll in its closing argument to summarize the evidence was proper. See Vera v. State, 709 S.W.2d 681, 687 (Tex.App.-San Antonio 1986, pet. ref'd) (allowing prosecutor to use doll during closing argument in sexual assault case). The trial court did not abuse its discretion in allowing use of the doll during State’s closing argument.

Having found that the use of the doll was relevant to Appellant’s actions, we must now determine whether the probative value is substantially outweighed by the danger of unfair prejudice. A presumption of admissibility applies to all relevant evidence, and a trial judge may exclude such evidence only when there is a “clear disparity between the degree of prejudice of the offered evidence and its probative value.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999). “Unfair prejudice does not, of course, mean that the evidence injures the opponent’s case — the central point of offering evidence. Rather it refers to an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Cohn v. State, 849 S.W.2d 817, 820 (Tex.Crim.App.1993).

The use of the doll during trial clearly related to Appellant’s actions as demonstrated through Appellant’s own testimony and the testimony of Detective Noone, based on firsthand knowledge gained during his interview with Appellant. Likewise, the doll used at trial was shown to be similar to the doll used during Detective Noone’s interview. As such, we cannot say that the probative value of the use of the doll was substantially outweighed by the danger of unfair prejudice. Therefore, the trial court’s ruling was not an abuse of discretion.

Appellant’s first issue is overruled.

Hearsay

Appellant complains in his second issue that the trial court erred in admitting into evidence a hearsay statement contained in a writing offered as a learned treatise. Appellant objected to the State’s introduction of a “policy statement”' from the American Academy of Pediatrics during direct examination of one of its expert witnesses, Dr. Howard Kelfer. Appellant argues that the “policy statement” was inadmissible hearsay.

Although Appellant objected to the admission of the written statement during the testimony of Dr. Kelfer, he failed to object when the statement was called to the attention of a subsequent witness. The State again presented the “policy statement” in the following exchange with witness Dr. Dave Donahue, an expert in pediatric neurosurgery:

Q. Are you familiar with the American Academy of Pediatries and their policy statement with regard to shaken-baby syndrome?
A. Yes, sir.
Q. Are you aware with respect to the fact that they say this is a violent act? Would you agree with that?
A. Yes, sir.
Q. Would you also agree with their statement or their position that anybody observing this type of violence or act would immediately recognize it as dangerous and likely to Mil the child?
A. Unless they came from outer space.

Appellant did not object to the use of the “policy statement” in Dr. Donahue’s testimony. To preserve error, a party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App.1991). A trial court’s erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). This rule applies whether the other evidence was introduced by the defendant or the State. Leday, 983 S.W.2d at 718.

Accordingly, Appellant’s failure to object to the questioning of Dr. Donahue regarding the American Academy of Pediatrics statement waived any error in the admission of the statement during the testimony of Dr. Kelfer. Appellant’s second issue is overruled.

Jury Charge

Appellant complains in his third issue that the trial court erred in refusing to charge the jury on the lesser included offense of criminal negligence. The trial court’s charge instructed the jury to find Appellant guilty if they found beyond a reasonable doubt that he “knowingly” caused serious bodily injury to L.M. The charge also instructed that if the jury did not find that Appellant “knowingly” caused serious bodily injury, they should acquit of that offense and “next consider whether he is guilty of the offense of recklessly causing injury to a child.” Therefore, Appellant received a lesser included offense instruction on recklessness, but did not receive his requested instruction on criminal negligence. The jury found Appellant guilty of knowingly causing injury to a child.

To determine whether a jury must be .charged on a lesser included offense, we apply a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). The first step is to decide whether the offense is a “lesser included offense” as defined in article 37.09 of the code of criminal procedure. Tex.Code Ckim. PROC. Ann. art. 37.09 (Vernon 1981); Moore, 969 S.W.2d at 8. “An offense is a lesser included offense if ... it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” Tex.Code Ceim. PROC. Ann. art. 37.09(3). Appellant was indicted for the offense of knowingly causing serious bodily injury to a child. A person commits injury to a child “if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child ... serious bodily injury.” Tex. Penal Code Ann. § 22.04(a)(1) (Vernon 2003). Because the offense encompasses all culpable mental states, criminally negligent infliction of serious bodily injury is a lesser included offense of knowing infliction of serious bodily injury. Therefore, the first step of our analysis is satisfied.

The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, and not of the greater. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002); Moore, 969 S.W.2d at 8. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex.Crim.App.1992).

The Texas Penal Code defines “knowingly” as follows:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Tex. Penal Code Ann. § 6.03(b) (Vernon 2003).

The Penal Code defines “recklessly” as follows:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Id. § 6.03(c).

The Penal Code defines “criminal negligence” as follows:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Id. § 6.03(d).

Injury to a child is a result oriented crime, requiring a culpable mental state that relates to the result of the conduct. Banks v. State, 819 S.W.2d 676, 678 (Tex.App.-San Antonio 1991, pet. refd). The jury charge in the present case properly focused on the result of the alleged conduct. Therefore, in order to find Appellant guilty of knowingly causing serious bodily injury, the jury had to find that he was aware that his conduct was reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b). In order to find Appellant guilty of recklessly causing serious bodily injury, the jury would likewise have had to find that Appellant was aware of, but that he consciously disregarded, a substantial and unjustifiable risk that the result would occur. Id. § 6.03(c). In order to be entitled to the requested jury instruction, we must determine whether there is some evidence that would permit a rational jury to find that Appellant is guilty of only criminally negligent injury to a child. Moore, 969 S.W.2d at 8. The key to criminal negligence is the failure of the actor to perceive the risk. Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975). Therefore, in order to receive a jury charge on criminal negligence, there must be some evidence in the record that the Appellant was unaware of the risk of his conduct. Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Crim.App.1986); Cooks v. State, 5 S.W.3d 292, 297 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Proof of a culpable mental state generally relies upon circumstantial evidence. Stadt v. State, 120 S.W.3d 428, 438 (Tex.App.-Houston [14th Dist.] 2003, pet. granted). Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances. Id. The issue of whether one is aware of the risk or simply fails to perceive it is a conclusion to be drawn through inference from all the circumstances by the trier of fact. Id. Appellant refers us to two pieces of testimony as arguably raising some evidence that he was unaware of the risk of his conduct. First, Appellant points to the cross-examination of Detective Noone, who was asked to explain the mental states of reckless and negligence:

Q. And reckless — understanding you deal with the Penal Code every day, so you understand that some of the different states of minds or mens rea involved in crimes, correct?
A. Yes.
Q. And reckless is a substantial, unjustified — I can’t think of the word I want to use right now — yeah, a disregarding of the substantial and unjustifiable risk, correct?
A. Basically should have known.
Q. Should have known. Should have known. And that’s negligence, though, should have known. There’s a standard of negligence and, hey, a reasonable person does this and you should have known to do that, correct?
A. Uh-huh.
Q. And then — is that correct?
A. I’m sorry.
Q. Negligence is a should have known. It’s a reasonable person standard?
A. Well, negligence is saying that a reasonable person would have — wouldn’t have put these things into play.
Q. And the, of course, the next thing is reckless, which is how you filed this case, correct?
A. Uh-huh.
Q. And under those circumstances, it’s a disregard of substantial and unjustifiable risk, correct?
A. I’d have to, again, look at the—
Q. A gross deviation—
A. —the language on that.
Q. A gross deviation from the standard of care, correct?
A. I’ll agree with that pending a review back on the Penal Code definitions.

Appellant argues that this exchange provides some evidence that Appellant was only negligent because, as he argues, that is what Detective Noone concluded after his initial investigation. We do not agree. Detective Noone was asked to clarify a legal definition, which unfortunately, lacked clarity. He did not testify that he thought Appellant was negligent, as Appellant argues. Further, Detective Noone, after conducting an initial investigation, prepared an offense report listing the offense as a “reckless crime.” However, the grand jury indicted Appellant for knowingly causing serious bodily injury to a child. Therefore, we do not see how this brief exchange regarding the definitions of reckless and negligence constitutes “some evidence directly germane to a lesser-included offense.” Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App.2003).

Second, Appellant points to his testimony that when he shook L.M. he was not “consciously aware” of anything, except trying to stop her from crying. However, Appellant testified on cross-examination:

Q. All right. Now, with respect to June, the reason that you’re so certain that you didn’t shake [L.M.] in June of 2001 is because you knew you had a temper and you knew you were short with [L.M.]; isn’t that true?
A. I didn’t want to have any more frustrated episodes.
Q. Right. You didn’t want to shake her again, right?
A. I didn’t want to hurt my child.
Q. Okay. And you knew that by shaking her you could hurt her, right?
A. I knew that if I continued to handle my child when I was frustrated or angry, that ultimately it could lead to some kind of injury, which is why I ceased to care for her.

Appellant further testified on cross-examination:

Q. You were afraid you were going to hurt her and so that’s why you wanted Linda Gray [L.M.’s grandmother] to continue to care for that child; isn’t that right? Yes or no, sir?
A. That’s correct.

Appellant also provided a written statement to Detective Noone, which was admitted into evidence and read to the jury by the detective. In the statement, Appellant states that “[o]n four occasions from the time [L.M.] was three months old until her present age, I lost my temper and shook her too hard.” The statement continues, “I do not ever want to harm my child or anyone else ever again.”

Dr. Donahue also gave his opinion that anyone would immediately recognize the act of shaking a baby as dangerous, “[u]n-less they came from outer space.” Further, the State asked Appellant if he saw a baby being shook in the manner demonstrated by Detective Noone, would he “recognize that act as being [an] act that could seriously injury (sic) or kill a child at that age,” to which Appellant replied yes.

This evidence leads us to the conclusion that not only did Appellant believe his treatment of L.M. was wrong, but if he continued, the result of his conduct would lead to her injury. Appellant admitted shaking L.M. in the past because he wanted to stop her from crying. He also testified that he ceased to be her primary caretaker because he feared she would suffer injury if he experienced another “frustrated episode.” Therefore, whether Appellant was “not consciously aware” of anything except trying to stop L.M. from crying when he began to shake her, he must have become aware of a risk of injury before he stopped shaking her. His thought process with regard to what the risk of the result could be is more relevant than what his immediate intent was regarding the shaking. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.2003) (“result of conduct” offense means that the culpable mental state relates to the cause of the result); Still v. State, 709 S.W.2d 658, 661 (Tex.Crim.App.1986) (evidence showed that defendant, after perceiving the risk in pointing a loaded gun at his wife, continued to point the gun at her even while he attempted to uncock it); Cooks, 5 S.W.3d at 296-97 (finding no evidence that defendant charged with manslaughter was not aware of the risk; instead evidence that defendant was a licensed driver, drove almost one hundred miles per hour in a fifty-five mile per hour zone, car with which he collided split in half, and reconstruction experts estimated that he was still going seventy miles per hour after the collision only showed a conscious disregard of the risk); Bergeron v. State, 981 S.W.2d 748, 752-53 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (finding defendant’s explanation that he was trying to ward off victim with knife but stabbed him in the process did not indicate that he failed to perceive the risk that the victim might be seriously injured or killed).

Based on this evidence, we conclude that no rational jury could find that if Appellant was guilty, he was guilty only of the lesser included offense. It was therefore not error for the trial court to refuse to include the lesser included offense. Appellant’s third issue is overruled.

CONCLUSION

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


source: Caselaw Access Project

author: LESLIE BROCK YATES, Justice.

license: Public Domain

text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Appellant, v. KECK, MAHIN & CATE and Robert Plessala, Appellees.
    No. 14-03-00747-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 14, 2004.

      Michael Alan Choyke, Houston, for appellant.
    Tracy C. Temple, Tracie Jo Renfro, Houston, for appellees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant National Union Fire Insurance Company of Pittsburgh, PA (“National Union”), an excess insurance carrier, sued appellees, who represented National Union’s insured, Granada Food Corporation (“Granada”), in an underlying lawsuit. As an equitable subrogee of Granada, National Union alleged that Keck, Mahin & Cate (“KMC”) and one of its attorneys, Robert Plessala, committed legal malpractice in their defense of Granada in the underlying lawsuit. The jury returned a verdict for KMC and Plessala, and the trial court entered a final take-nothing judgment against National Union. We affirm.

Factual and Procedural Background

This is not the first time this litigation has been before this court. In 1997, we were faced with, among other things, the issue of whether summary judgment was proper for KMC. See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955 S.W.2d 120 (Tex.App.-Houston [14th Dist.] 1997), aff'd sub nom. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex.2000). Our opinion was affirmed by the Texas Supreme Court, and although we need not discuss all aspects of either opinion in detail here, we borrow liberally from both opinions to summarize the underlying lawsuit and National Union’s claims in this subrogation lawsuit.

In September of 1991, Wolf Point Shrimp and its owner (collectively “Wolf Point”) sued Granada for damages allegedly caused by Granada’s improper processing and marketing of shrimp grown and harvested by Wolf Point the previous fall. Granada hired KMC as its attorneys in the lawsuit, and KMC tendered the defense of the lawsuit to Granada’s primary insurance carrier, Insurance Company of North America (“INA”), and Granada’s excess insurance carrier, National Union. INA’s primary policy provided a limit of $1 million per occurrence. National Union’s commercial umbrella policy provided an additional $9 million in excess coverage.

INA agreed to defend Granada under a reservation of right to contest coverage, and Granada elected to keep KMC as its counsel. INA formally engaged KMC to defend Granada in the Wolf Point litigation, and Plessala was assigned primary responsibility for the defense. During the course of the litigation, Wolf Point demanded $3.6 million to settle the lawsuit. INA and National Union were both informed of the demand, but neither insurer expressed interest in settling for that amount. Plessala advised that the case could probably be settled at that time for less than half this sum.

In January of 1992, the trial court gave the Wolf Point lawsuit a preferential trial setting for April 28, 1992. Plessala’s efforts to continue the trial setting were unsuccessful, and the case proceeded to trial. On the first day of trial, INA tendered its policy limits to National Union. Two days later, National Union settled the lawsuit for $7 million, and a final judgment was later signed for that amount.

National Union filed its lawsuit against INA, KMC, and Plessala to recover some of the money it paid to settle the Wolf Point lawsuit. Under the doctrine of equitable subrogation, National Union asserted claims, including negligence, against INA and a legal malpractice claim against KMC and Plessala. INA asserted a cross-claim against KMC and Plessala for malpractice and asserted the affirmative defenses of contributory negligence and comparative responsibility against National Union. KMC and Plessala pleaded the same affirmative defenses against National Union and further pleaded that a release agreement between it and Granada barred National Union and INA’s claims against Plessala and KMC.

All of the parties filed motions for summary judgment. The trial court granted summary judgment for KMC on the two insurers’ subrogation claims for malpractice because of the KMC-Granada release agreement. The trial court also granted partial summary judgment for National Union, rejecting INA and KMC’s affirmative defenses of contributory negligence and comparative responsibility. The trial court granted INA’s motion for partial summary judgment, thereby eliminating National Union’s claims of gross negligence and violations of the Texas Insurance Code. The trial court then severed National Union and INA’s claims against KMC and rendered a final judgment that the two insurers take nothing against KMC. On appeal, the supreme court held that KMC had not met its burden of proving that the release agreement was a complete defense to National Union and INA’s equitable subrogation claims. The court also determined that KMC and INA could raise National Union’s comparative responsibility in defense to the respective negligence claims against them. The court remanded the case for trial, and the jury found that the release executed by KMC and Granada was valid and that the negligence of INA and National Union, rather than the negligence of Plessala (if any), proximately caused the loss to National Union.

In six issues, National Union argues that (1) the release is invalid as a matter of law because it covers prospective claims and Granada did not have independent representation, (2) the evidence is legally and factually insufficient to support the jury’s finding that the release is valid, (3) the trial court erred in submitting an improper jury instruction regarding proximate cause, (4) the evidence is factually insufficient to support the jury’s finding that Plessala was not negligent or did not damage National Union, (5) the evidence is legally and factually insufficient to support a finding that National Union was negligent, and (6) the evidence is legally and factually insufficient to support a finding that INA was negligent and caused National Union damages. We conclude the evidence is factually sufficient to support a finding that Plessala was not negligent. We further conclude that the release is not invalid as a matter of law and that there is sufficient evidence to support the jury’s finding that the release is valid. Therefore, we affirm.

Negligence of Plessala

A claim for attorney malpractice in Texas is based on negligence. Cosgrove v. Chimes, 774 S.W.2d 662, 664 (Tex.1989). The jury must evaluate an attorney’s conduct based on the information available at the time to determine if a reasonably prudent attorney could make the same decision in the same or similar circumstances. Id. at 664-65.

In this case, the jury was asked whether Plessala’s negligence, if any, proximately caused National Union’s loss, and the jury answered “no.” In its fourth issue, National Union challenges the factual sufficiency of the evidence to support this answer. In reviewing factual sufficiency, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside a fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We will not substitute our judgment merely because we might reach a different conclusion. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Pascouet, 61 S.W.3d at 616.

On appeal, National Union contends that Plessala was negligent in five ways, specifically, in failing to (1) depose the individual plaintiff, (2) depose Wolf Point’s experts or otherwise pin down the bases for their opinions, (3) consult with experts to help present Granada’s case on liability and damages, (4) hire local counsel, and (5) pay the jury fee.

National Union presented expert evidence on the negligence issue from Judge David West, a retired district court judge with over fifteen years of experience on the bench. Plessala did not depose Wolf Point’s owner, who was an individual plaintiff in the underlying suit. According to Judge West, this was negligent because the plaintiff needed to be “pinned down” on his allegations, such as how much shrimp was lost. Thirty days before trial, Wolf Point designated an expert on liability regarding Granada’s fault in ruining the shrimp and an expert on damages. Ples-sala neither deposed these witnesses nor requested that their opinions be reduced to writing. As a result, Plessala did not know the experts’ opinions, such as that Wolf Point had lost over $14 million in future profits. Plessala also did not personally consult with any experts to prepare a defense to liability or damages. Wolf Point’s suit was filed in Matagorda County, which Plessala acknowledged is a “plaintiffs county” based on its high jury verdicts. Wolf Point was represented at trial by two prominent attorneys with connections to the judge, Neil Caldwell. Plessala did not hire local counsel and did not pay the jury fee (which he assumed Wolf Point had paid), both of which could have helped insulate Granada from potential bias. Judge West testified that all of these failures were unreasonable under the circumstances and therefore fell below the standard of care.

Plessala responded with his own testimony as well as testimony from Tom Eas-ley, the Granada representative in charge of the Wolf Point litigation, and Fred Ha-gans, a legal malpractice expert who has been practicing law over thirty years. Plessala explained that he and Easley concluded early on that Granada had no real liability defense. Wolf Point had deposed one of Granada’s former employees, who testified to several facts that would have made challenging liability extremely difficult. After Plessala shared this testimony with Easley, Easley contacted the general manager of a shrimp farm in Panama affiliated with Granada for advice, who also expressed concern over Granada’s potential liability. Though National Union hired an expert in the malpractice trial that said Granada was not negligent, Plessala thought it unwise to attempt to find a similar outside expert because he believed that would have challenged the veracity of his own client. Therefore, Plessala decided the best strategy was to essentially concede liability and focus on containing damages. Most of the items of damages, such as the value of the shrimp, were well established, but Plessala was particularly concerned about limiting Wolf Point’s claim for lost profits, which Plessala believed to be invalid as a matter of law. He chose not to depose the individual plaintiff because Plessala had very detailed information on Wolf Point’s allegations from discovery responses and from a settlement brochure sent by Wolf Point’s attorneys. He also thought deposing the plaintiff would only make the plaintiff a better witness, and Plessala feared damages questions would have revealed his case strategy. Plessala did not depose Wolf Point’s liability expert because Granada was not contesting liability, and he did not think it was necessary to depose the damages expert because Plessala believed he knew what his testimony would be based on the settlement brochure. Plessala also chose not to hire a damages expert because his lost profits argument was primarily legal and he thought he could establish the facts he needed through cross-examination of Wolf Point’s damages expert and the individual plaintiff. Finally, Plessala testified that he did not hire local counsel because he did not think he needed it and that he was “happy” to try the case to the judge rather than a jury because he believed that would help contain damages.

Hagans testified that he believed Plessa-la not only met but exceeded the standard of care under the circumstances. He discussed each criticism of Plessala’s conduct and explained why, in his opinion, each decision was reasonable. For example, Hagans testified, and Judge West agreed on cross-examination, that whether to take a plaintiffs deposition (or any witness’s deposition) is a case-by-case judgment call. Here, Plessala had detailed information on Wolf Point’s allegations from the settlement brochure, which was the most detailed settlement brochure Hagans had ever seen and, according to Hagans, provided better information than most written discovery responses or depositions. Ha-gans took offense at National Union’s implication that it was impossible to get a fair trial in Matagorda County in front of Judge Caldwell and stated that not hiring local counsel was a reasonable decision. Hagans believed Plessala’s case strategy to focus only on containing damages was reasonable under the circumstances and that his decisions in carrying out that strategy, such as not deposing Wolf Point’s experts and not hiring his own experts, were also reasonable.

Easley testified that he was aware of Plessala’s overall strategy of not contesting liability and agreed with it. Based on the information in the depositions and Easley’s discussion with the general manager of the shrimp farm in Panama, Eas-ley concluded that Wolf Point’s shrimp were most likely ruined by Granada’s processing. Easley was completely satisfied with Plessala’s representation in the Wolf Point matter, and Granada refused National Union’s request to join it in a malpractice action against KMC and Plessala.

National Union argues that the jury’s finding that the release between Granada and KMC and Plessala is valid effectively “gutted” its malpractice claim by preventing the jury from considering all of Plessala’s conduct. The release covered all claims attributable to services rendered from June 1, 1988 through April 1, 1992, and the jury was therefore instructed “not [to] consider any conduct by [Plessala] that occurred on or before April 1, 1992.” National Union fails to delineate which of the five categories of alleged negligence it believes the jury could and could not have properly considered under this instruction. Nevertheless, even considering the full range of conduct National Union claims was negligent, we find the evidence factually sufficient to support a finding that Plessala was not negligent. Viewing the entire record, we do not find the overwhelming weight of the evidence is against the jury’s finding. Indeed, there was plenty of evidence from which the jury could have determined that Plessala was not negligent. Therefore, we overrule National Union’s fourth issue.

Because there is some risk the jury could have decided not to consider some of Plessala’s conduct in attempting to follow the trial court’s instructions once it found the release to be valid, we will address National Union’s first and second issues regarding the validity of the release. However, given our conclusion that sufficient evidence supports a finding that Ples-sala was not negligent, we need not address National Union’s remaining issues.

Validity of the Release

KMC and Granada entered into a release on April 10, 1992, about three weeks before the Wolf Point trial was scheduled to begin. Granada owed KMC over $880,000 in unpaid legal fees for matters other than Wolf Point, and in exchange for KMC’s promise to forgive these unpaid fees, Granada gave KMC an interest in certain other pending litigation KMC was handling and released KMC from “any and all demands, claims or causes of action of any kind whatsoever, statutory, at common law or otherwise, now existing or that might arise hereafter, directly or indirectly attributable to the rendition [of] professional legal services by KMC to Granada between June 1, 1988 and April 1, 1992.” The release also contains a provision stating that “KMC has advised Granada in writing that independent representation is appropriate in connection with the execution of this Agreement.” However, Granada did not seek independent representation because it thought the release was in its interest and therefore considered consulting an attorney unnecessary.

In KMC’s original motion for summary judgment, it argued that since National Union stood in Granada’s shoes as subrogee, the release between KMC and Granada barred National Union’s claims. National Union argued that the agreement was invalid because Granada did not understand the agreement and was not fully informed prior to signing the release. When the supreme court reviewed this matter, it explained that contracts negotiated during the existence of an attorney-client relationship are closely scrutinized and, because of the fiduciary nature of the relationship, there is a presumption of invalidity or unfairness attaching to such contracts. Keck, 20 S.W.3d at 699. To rebut this presumption, KMC must prove that (1) the release was “fair and reasonable” and (2) “Granada was informed of all material facts relating to the release.” Id. The record established only that Granada was advised in writing to seek independent counsel, but this “bare recitation” was inadequate to carry KMC’s summary judgment burden, therefore necessitating a trial. Id.

In its first issue, National Union contends the release is invalid as a matter of law because it covers prospective claims and Granada did not have independent legal representation, in violation of Rule 1.08(g) of the Texas Disciplinary Rules of Professional Conduct. In its second issue, National Union asserts that the evidence is legally and factually insufficient to support the jury’s finding that the release is valid.

Is the release invalid as a matter of law?

Rule 1.08(g) of the Disciplinary Rules provides:

A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client with out first advising the person in writing that independent representation is appropriate in connection therewith.

Tex. Disciplinaey R. PROf’l Conduct 1.08(g), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998). National Union contends the release is invalid as a matter of law because KMC violated Rule 1.08(g) by entering into a release with its client that covered prospective claims when the client did not first secure independent representation. KMC argues that the release covers only past conduct and therefore that legal representation was not necessary. We agree that the release is prospective, but we conclude that it is not invalid as a matter of law.

The question we must first resolve is whether a release of future claims based on past conduct is prospective. National Union contends the release is prospective because it forgives claims that had not yet accrued. KMC responds that the release is not prospective because it disposes only of past conduct not future conduct. While it is true the release covers past conduct, the disciplinary rule does not speak in terms of conduct. Rather, it speaks in terms of liability. We find the release between KMC and Granada is an agreement to prospectively limit KMC’s malpractice liability because it seeks to limit liability that had not yet accrued. See Am. Elec. Power Co. v. Pub. Util. Comm’n of Tex., 123 S.W.3d 33, 38 (Tex.App.-Austin 2003, no pet.) (noting that the part of a utility’s account attributable to fuel-cost under-recoveries “represents merely the recording of a prospective liability” that will not actually arise until the customers pay their bills).

Notably, a legal-malpractice claim does not accrue until “facts have come into existence that authorize a [client] to seek a judicial remedy.” Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex.2001). This means a legal-malpractice claim does not arise “until the client discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of a cause of action.” Id. at 121. Because damages are an element of the legal-malpractice claim, the claim does not accrue until the client discovers — or should have discovered — it was legally injured. Vacek Group, Inc. v. Clark, 95 S.W.3d 439, 443 n. 2 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In fact, a cause of action may not accrue until well after facts alluding to the malpractice have surfaced. See Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 636 (Tex.App.-Dallas 2000, pet. denied) (finding cause of action did not accrue when client learned of potential claim during deposition but only after default judgment was entered against the client); Estate of Arlitt v. Paterson, 995 S.W.2d 713, 720 (Tex.App.-San Antonio 1999, pet. denied) (dismissing claim made by deceased appellant’s estate for estate planning malpractice because no claim for legal malpractice could have accrued prior to appellant’s death).

Here, the release is broad and covers “all demands, claims or causes of action of any kind whatsoever ... now existing or that might arise hereafter.” The release disposes of all claims against KMC for malpractice attributable to legal services rendered from June 1, 1988 to April 1, 1992 in return for Granada’s release of “all present and future claims” attributable to KMC’s work during that same period. Keck, 20 S.W.3d at 698 (emphasis added). Crucially, any claims relating to the Wolf Point litigation had not accrued by the time the parties signed the release agreement because Granada had not yet suffered any injury from the alleged malpractice. No actual injury was manifested until, during settlement negotiations, it became apparent that actions or omissions of KMC may have significantly increased the settlement value of the case. We find this release, although it concerns past conduct, was an attempt by KMC to dispose of malpractice liability from causes of action that had not yet accrued. By doing so, KMC prospectively limited its potential liability, and since Granada did not have independent representation, KMC violated Rule 1.08(g).

However, a violation of Rule 1.08(g) does not automatically render the release invalid. The supreme court determined that the presumption of unfairness attached to the release in this case because it was negotiated during the attorney-client relationship. Keck, 20 S.W.3d at 699 n. 3. “Conversely, had Granada severed the attorney-client relationship with KMC and hired new attorneys before agreeing to the release, the presumption would not have arisen.” Id. Thus, the supreme court determined that the consequence of violating Rule 1.08(g) was not to invalidate the release as a matter of law but to require KMC to overcome the presumption by proving the release is fair and reasonable and that it informed Granada of all material facts. See id. Because violating Rule 1.08(g) does not invalidate the release as a matter of law, we overrule National Union’s first issue.

Is the evidence sufficient to support a finding that the release is valid?

In accordance with the supreme court’s opinion, the trial court instructed the jury that to find the release valid, “(1) the release agreement must have been fair and reasonable; and (2) [Granada] must have been informed of all material facts relating to the release agreement.” The jury determined the release is valid. In its second issue, National Union challenges both the legal and factual sufficiency of the evidence to support the jury’s finding.

A legal sufficiency review differs from the factual sufficiency review we outlined above in that in considering legal sufficiency, we view the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence. Id. at 782-83.

National Union first argues that the evidence is insufficient to establish that the release was fair and reasonable because the agreement was not supported by adequate consideration. Adequacy of consideration is one factor in assessing the fairness of a transaction involving a fiduciary. See Estate of Townes v. Townes, 867 S.W.2d 414, 417 (Tex.App.-Houston [14th Dist.] 1993, writ denied). National Union claims that since Granada could not pay its legal bills, what KMC gave up in the agreement — the right to seek payment on uncollectible bills — was of no value. However, the evidence did not conclusively establish that Granada would never be able to pay even a portion of its legal bills. Granada was experiencing severe financial difficulties and was attempting to resolve outstanding liabilities from many creditors to avoid bankruptcy. Nevertheless, KMC had the right to attempt to collect what it was owed, even through the bankruptcy process if necessary. Granada approached KMC about a plan to forgive its existing debt while maintaining their attorney-client relationship in exchange for giving KMC an interest in other litigation KMC was handling. KMC agreed, so long as Granada agreed to a release of legal-malpractice claims. KMC advised Granada several times, both orally and in writing, to seek independent representation, but Granada refused. Tom Easley, Granada’s representative in charge of the Wolf Point litigation, testified that Granada did not believe it needed legal advice because the agreement was “very favorable” and “absolutely in [Granada’s] best interest” by providing substantial debt forgiveness and allowing Granada to continue to receive KMC’s services on Wolf Point and other matters. Easley was not concerned about releasing any malpractice claims because Granada had always been satisfied with KMC’s representation, and Granada did not believe it had any malpractice claims against KMC. The jury was entitled to conclude that forgiveness of over $880,000 in debt, which eliminated a significant liability from Granada’s books, and the ability to retain KMC’s legal services, showed that the transaction was fail' and reasonable to Granada.

National Union also contends the evidence is insufficient to show that KMC informed Granada of all material facts relating to the release. National Union primarily points to the same litany of conduct it claims constituted negligence by Plessa-la, such as failing to depose the individual plaintiff or hire experts. Based on the evidence in the record discussed above, the jury could have determined that those items were not material for the same reasons it could have determined they did not constitute negligence. Further, National Union ignores all the evidence in the record of what Granada did know, including the unfavorable deposition testimony of its former employee, the unfavorable opinion of the internal expert Easley consulted, Plessala’s strategy to focus on damages rather than liability, and Plessala’s decision not to consult outside experts.

Based on our review of the evidence in the entire record and of only the evidence supporting the jury’s finding, we conclude the evidence is legally and factually sufficient upon which to base a finding that the release is valid. Therefore, we overrule National Union’s second issue.

We affirm the trial court’s judgment.

      . National Union and INA settled their claims before trial, and INA is not a party to this appeal.

      . National Union presented testimony from Judge West that each of Plessala's failures occurred both before and after April 1, 1992. For example, Judge West testified that Plessa-la could have deposed the plaintiff after April 1 and even up until a week before trial, which started on April 28, 1992.

      . In its third issue, National Union asserts error in the trial court’s jury instruction on proximate cause. Because we have concluded that the evidence is sufficient to support a finding that Plessala was not negligent, an error in the proximate cause instruction, if any, was harmless. We also need not address National Union's fifth and sixth issues challenging the jury’s findings that INA and National Union were negligent because the carriers’ comparative or contributory negligence is irrelevant in light of our determination that sufficient evidence supports a finding that Plessala was not negligent.

      . KMC contends National Union waived this issue by not seeking or securing a ruling from the trial court that the release is prospective. However, National Union attacked the jury’s finding in its motion for new trial, arguing that the release is prospective and that, because independent counsel did not represent Granada when it entered into the agreement, the evidence was legally and factually insufficient to support the jury's verdict. Thus, National Union did not waive this argument on appeal. See Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 52 (Tex.1998) ("The court of appeals erred in holding that the no-evidence point in [appellant’s] motion to disregard jury findings did not preserve the contention that no implied warranty arose under the circumstances of this case. [Appellant's] complaint on appeal is that no evidence supports the finding that it violated the DTPA. That complaint encompasses the contention that no implied warranty arose under the present facts because, if no implied warranty arose, then evidence that [appellant] failed to perform in a good and workmanlike manner is no evidence that [appellant] committed a deceptive trade practice.”).

      . National Union asserts that whether a transaction is fair and reasonable is an objective test, and since Granada’s opinions are subjective, they are irrelevant. We disagree. Assuming National Union is correct that the test is objective, Easley’s testimony about how Granada valued and benefitted from the transaction is some evidence the jury could have considered in determining whether the release was fair and reasonable.

      . National Union also asserts that KMC failed to disclose all material facts about legal matters other than the Wolf Point lawsuit that are covered by the release. However, nothing in the record suggests that there was anything KMC should have disclosed. Rather, the undisputed evidence shows that Granada was satisfied with KMC’s representation on all matters and never believed it had any malpractice claims against KMC.