author: SHERRY RADACK, Chief Justice. EVELYN V. KEYES, Justice,

text:
    HOUSTON PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION, Local 341; Steven D. Williams, Individually and as President of Local 341, Appellants, v. CITY OF HOUSTON; Fire Chief Christopher Connealy, Appellees.
    No. 01-03-00582-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 2005.

      Richard C. Mumey, Houston, TX, for Appellants.
    John E. Fisher, Houston, TX, for Appel-lees.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellees, former Fire Chief Christopher Connealy and the City of Houston (“the City”). Appellants, Houston Professional Fire Fighters Association et al. (“HPFFA”), filed a suit challenging the City’s practice of assigning Houston Fire Department (“HFD”) cadets to ambulance duty in contravention of the Texas Local Government Code, Chapter 143 and the Code of Ordinances of the City of Houston, Section 4-9. On appeal, the issue is whether fire department cadets, by being assigned to HFD ambulances to perform emergency medical services, are performing functions reserved for classified fire fighters, thereby displacing classified fire fighters in contravention of Chapter 143 and Section 4-9. We affirm.

BACKGROUND

Starting in the early 1970s, classified fire fighters exclusively delivered emergency medical services for HFD. Fire department cadets were not permitted to deliver emergency medical services within the City of Houston. The cadets at issue in this case are certified Emergency Medical Technicians (“EMT”), but are not yet state-certified as firefighting personnel. On November 16, 2001, Fire Chief Christopher Connealy distributed a memorandum describing a new HFD program (“EMT program”) that became effective on November 17, 2001. The EMT program permitted the assignment of fire department cadets to HFD ambulances. Pursuant to the EMT program, cadets now perform emergency medical functions on HFD ambulances. Cadets and classified fire fighters are currently performing the same kind of work in terms of patient care while assigned to HFD ambulances.

HPFFA filed a suit for declaratory judgment contending that only classified fire fighters may perform the functions and jobs regularly performed by classified fire fighters. HPFFA also sought to permanently enjoin the City (1) from using non-elassified employees, which includes cadets according to HPFFA, to do functions regularly performed by classified fire fighters and (2) from denying HFD fire fighters their back pay and benefits. HPFFA contends that the City was displacing classified fire fighters in contravention of both Chapter 143 of the Texas Local Government Code, commonly referred to as the Police Officers’ and Fire Fighters’ Civil Service Act, (“Chapter 143”) and Section 4-9 of the Code of City Ordinances of the City of Houston (“city ordinance”). HPFFA argues that the EMT program violates Chapter 143 because the statute requires positions within HFD to be filled by classified fire fighters. HPFFA claims that cadets are not classified fire fighters because (1) cadets have not been appointed in substantial compliance with the requirements of Chapter 143, (2) cadets are not included in the city’s classification ordinance, and (3) cadets have not completed the fire training curriculum required by Chapter 419 of the Texas Government Code. HPFFA argues that the EMT program violates Section 4-9 of the Houston City Ordinance because the ordinance prohibits anyone except HFD’s classified fire fighters from delivering medical services while driving HFD ambulances in Houston.

The City filed a motion for summary judgment attacking HPFFA’s arguments regarding Chapter 143 and the city ordinance. HPFFA filed a response and a partial motion for summary judgment. On March 19, 2003, the court granted the City’s motion for summary judgment and denied HPFFA’s partial motion for summary judgment. HPFFA filed a motion for new trial, but the trial court denied its motion after a hearing.

In its sole issue on appeal, HPFFA contends that the trial court erred by denying its partial motion for summary judgment and granting the City’s motion for summary judgment. HPFFA argues that cadets are not classified fire fighters and, pursuant to the EMT program, cadets are displacing classified fire fighters in violation of Chapter 143 and Section 4-9 of the Houston City Ordinance.

DISCUSSION

In reviewing a summary judgment, an appellate court must consider whether the successful movant at the trial level carried its burden of showing that there was no genuine issue of material fact and that judgment should be rendered as a matter of law. Tex.R. Civ. P. 166a(e); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We assume all of the non-movant’s evidence is true and indulge every reasonable inference in favor of the non-movant. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If the movant can show it is entitled to judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex.App.-Houston [1st Dist.] 1991, writ denied). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented. See Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997). The reviewing court should render such judgment as the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). When the trial court’s order does not specify the grounds on which a motion for summary judgment was granted, we will affirm the summary judgment if any of the theories advanced in the motion is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

Because this appeal requires us to interpret sections of the Local Government Code, we restate the basic principles of statutory construction. Interpreting statutes is a legal matter, subject to de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). The overriding goal of statutory interpretation is to determine the legislature’s intent. Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the Legislature. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998 & Supp.2004); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex.2002).

What is a HFD Cadet?

The threshold issue is whether, by assigning cadets to HFD ambulances to perform emergency medical services, non-classified HFD employees are performing the functions reserved for classified fire fighters, in contravention of Chapter 143.

Section 143.003 of Chapter 143 provides:

“Fire fighter” means a member of a fire department who was appointed in substantial compliance with this chapter or who is entitled to civil service status under Section 143.005 or 143.084. The term includes employees who perform:
(A) fire suppression;
(B) fire prevention;
(C) fire training;
(D) fire safety education;
(E) fire maintenance;
(F) fire communications;
(G) fire medical emergency technology;
(H) fire photography;
(I) fire administration; or
(J) fire arson investigation.

Tex. Loc. Gov’t Code Ann. § 143.003(4) (Vernon Supp.2004-2005). Section 143.021 provides, “The commission shall provide for the classification of all fire fighters and police officers. The municipality’s governing body shall establish the classifications by ordinance. The governing body by ordinance shall prescribe the number of positions in each classification.” Tex. Loc. Gov’t Code Ann. § 143.021(a) (Vernon Supp.1999).

The outcome of this case is determined by whether a cadet is a classified position within the HFD. HPFFA argues that cadets are not classified fire fighters. In support of its motion, the City argues that a cadet is a classified position and that there is no genuine issue of material fact.

According to Fire Chief Connealy, a cadet is “an individual that’s hired by the City to be trained as a firefighter.” Under the EMT program, cadets are first trained at the fire academy for approximately five weeks solely for emergency medical care at the level of an emergency medical technician. Once a cadet has been certified by the State as an EMT, the cadet is assigned to an HFD ambulance where he works with an engineer operator EMT or a state-certified fire fighter EMT. On these ambulances, cadets are “doing the same job in the capacity of patient care” as classified fire fighters. It is only after the cadets have worked on HFD ambulances for approximately 20 weeks in compliance with the EMT program that they return to the academy to complete training in fire fighting techniques in order to gain their state-certification as fire fighting personnel.

Historically, cadets or trainees were treated as non-elassified employees. Before January 1, 2002, HFD cadets or academy trainees were not administered the civil service entrance examination until after they had completed their training at the fire academy. However, as a result of a Consent Decree and the settlement of litigation in Nugent v. City of Houston, challenging the timing of HFD’s administration of its civil service examination, the City, since 2002, has administered the entrance examination prior to the cadet’s entry into the academy as part of the initial hiring process under Chapter 143. See Nugent v. City of Houston, 159 F.Supp.2d 529, 534 (S.D.Tex.2001) (finding that City of Houston’s administration of entrance examination after fire department cadets have received six months of academy training violated Chapter 143 of Texas Local Government Code).

Classification Analysis

A. Definition of Fire Fighter

To determine whether a cadet is a classified position, we must determine whether cadets are “fire fighters” within the protection of Chapter 143. Chapter 143’s statutory definition of a “fire fighter” includes “a member of a fire department who was appointed in substantial compliance with this chapter” and includes, but is not limited to, those employees who perform “fire medical emergency technology.” Tex. Loc. Gov’t Code Ann. § 143.003(4) (Vernon Supp.2004-2005). Chapter 143 does not provide a definition for “fire medical emergency technology.”

Our primary goal in interpreting a statute is to ascertain and to effectuate the Legislature’s intent. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). In doing so, we begin with the statute’s plain language before resorting to rules of construction. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We begin with the plain language because we assume that the Legislature attempted to say what it meant; therefore, the statute’s words should be the surest guide to the Legislature’s intent. Fitzgerald, 996 S.W.2d at 866. In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001); see Tex. Gov’t Code Ann. 311.011 (Vernon 1998) (instructing courts to construe words and phrases in context).

In interpreting section 143.003(4), we start with its plain language. See Wilkins, 47 S.W.3d at 493. Only if we find that section 143.003(4)’s plain language is susceptible of two or more reasonable interpretations will we hold that the statute is ambiguous. See In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 217 (Tex.1999). We construe section 143.003(4) to include cadets as members who perform “fire medical emergency technology” and, thus, within the statutory definition of a fire fighter. Tex. Log. Gov’t Code Ann. § 143.003(4) (Vernon Supp.2004-2005).

B. The City’s Classification Ordinance

In addition to the requirement that a member of the fire department must be a “fire fighter” under Section 143.003, Section 143.021 provides the second requirement for a position within the fire department to become a classified position. It states that the Fire Fighters’ and Police Officers’ Civil Service Commission “shall provide for the classification of all fire fighters” and that the “municipality’s governing body shall establish the classifications by ordinance.” Tex. Loc. Gov’t Code Ann. § 143.021(a) (Vernon 1999).

Houston’s classification ordinance does not expressly mention “cadets” as a classified position. Therefore, HPFFA argues that the cadet positions must be civilian, i.e., non-classified. However, HPFFA’s argument does not comport with the language of Chapter 143. Chapter 143 clarifies that the failure of the municipality’s governing body to establish a position as classified “does not result in the loss of civil service benefits by a person entitled to civil service protection or appointed to the position in substantial compliance with this chapter.” Tex. Loc. Gov’t Code Ann. § 143.021(b) (Vernon 1999). Section 143.031(b) clarifies that the Houston classification ordinance’s exclusion of cadets as an enumerated classified position does not necessarily indicate the cadets’ status as civilians. Although it is unclear from the language of the statute whether a position excluded from a city’s classification ordinance can still be classified, Texas courts have found that they can be. See Lee v. City of Houston, 807 S.W.2d 290, 295 (Tex.1991).

C. Alternative to the Classification Ordinance

When a municipality creates an unclassified position, i.e. a position that should be classified under Chapter 143, Texas courts will deem it to have been properly created and treat the position as classified. See Lee v. City of Houston, 807 S.W.2d 290, 295 (Tex.1991) (holding that placing unclassified employees in certain positions that must be classified contravened Chapter 143) (“Lee /”); see also Lee v. Downey, 842 S.W.2d 646, 649 (Tex.1992) (subsequent mandamus action where court ordered that plaintiffs, who were at the top of the eligibility list when unclassified civilian employees took jobs, receive those positions even though city council did not specifically create positions as classified positions) (“Lee II ”). In Lee I, the supreme court established a test to determine whether a position must be classified under Chapter 143. The Lee I test, as applied to police department employees, states:

If a particular position requires substantial knowledge of “police work and work in the police department,” then it must be classified. Conversely, if a position requires no knowledge of such work, then the position need not be classified. Where the duties and functions entailed by a particular job are undisputed, the determination of whether that job requires knowledge of police work and work in the police department is a question of law for the court.

Lee v. City of Houston, 807 S.W.2d at 294 (citing to Tex. Log. Gov’t Code Ann. § 143.025(b)). In Lee II, the Texas Supreme Court granted mandamus requiring the trial court to reverse its failure to apply the test it set out in Lee I to determine whether the positions at issue must be classified. 842 S.W.2d at 648. Although the positions at issue in Lee I and Lee II were within the police department, Chapter 143 applies to both fire and police departments, and thus, these cases provide analogous rules for applying Chapter 143 to positions in the fire department. See Tex. Loc. Gov’t Code Ann. §§ 143.001-.003 (Vernon Supp.2004-2005). The court also added that where the duties and functions entailed by a particular position are undisputed, the determination of whether that position requires knowledge of police (or fire) work and work in the police (or fire department) is a question of law for the court. Id. Applying the test set out by the Texas Supreme Court to our facts, we hold that cadets should be deemed “classified” if the record reveals that the position of cadet requires a person’s knowledge of fire fighting and work in the fire department. See Tex. Loc. Gov’t Code Ann. § 143.025(b) (Vernon 1999). We, therefore, turn to whether the position requires such knowledge.

According to Chapter 143, before a cadet can attend the fire academy, every cadet must have taken and passed a civil service entrance examination that, by statute, must be based on “the person’s knowledge of and qualifications for fire fighting and work in the fire department.” Tex. Loc. Gov’t Code Ann. § 143.025(b) (Vernon 1999). This prerequisite for becoming a cadet suggests that every cadet is required to know about fire fighting and working the fire department. Once the cadet has passed the examination, the cadet attends emergency medical technician training in order to provide emergency medical services on a HFD ambulance. After obtaining state-certification as an EMT, each cadet assigned to a HFD ambulance takes the place previously filled by a state-certified, classified fire fighter EMT, who is instead assigned to a fire truck to fight fires.

According to Fire Chief Connealy, under the EMT program, while riding on HFD ambulances, HFD cadets have been performing the same job and functions as state-certified, classified fire fighter EMTs. In his deposition testimony, Fire Chief Connealy testified that although cadets do not “do any firefighting at all,” they do respond to fires in order to “to provide EMS services to any firefighters or civilians that may get injured at the fire.” To perform their in-the-field work on HFD ambulances, cadets, even though they are not state-certified firefighters and do not fight fires while in the back of an ambulance, must know about fire fighting in order to render the emergency services necessary to save those affected by the fires. Furthermore, cadets must know about the role of the ambulance on which they serve within the overall workings of the fire department. Referring to the role of the EMS ambulances in the fire department, Fire Chief Connealy stated that “80% of our business is EMS.” Therefore, we find that the cadet position requires “knowledge of fire fighting and work in the fire department.” Thus, although the city classification ordinance fails to expressly include the cadet position as a classified position and because cadets are fire fighters within the civil service hierarchy of Chapter 143, cadets must be deemed classified by this Court. See Lee v. City of Houston, 807 S.W.2d at 295 (“All positions in the civil service hierarchy— that is, all classified positions, and all positions entailing the supervision of classified employees — -must be classified, and all appointments to those positions must be made in accordance with the Act.”) (citation omitted); Tex. Loc. Gov’t Code Ann. § 143.021 (Vernon 1999).

Because the EMT program merely assigns cadets, who are properly characterized as “classified fire fighters,” to perform functions alongside other classified fire fighters, and we find that cadets are not civilians, we cannot say that civilians are displacing classified fire fighters. Therefore, the EMT program does not contravene Chapter 143.

City of Houston Code of Ordinances § 4-9

HPFFA also claims that the trial court erred in granting summary judgment for the City because it properly pleaded and offered evidence to show the existence of a material fact in that Section 4-9 of the Houston city ordinance is violated by the EMT program. This contention is without merit. Section 4-9(a) states as follows:

It shall be unlawful for any person or persons other than members of such fire department in its classified civil service, while driving emergency ambulances operated by the fire department, to furnish or attempt to furnish ambulance service or to operate or drive or cause to be operated or drive any ambulance on the streets of the city for the purpose of furnishing emergency ambulance service.

Houston, Tex., ORdinances § 4-9(a) (1968) (emphasis added). By its express terms, the ordinance does not apply to any HFD fire fighters in a classified position. Because the City presented evidence that demonstrates that cadets must be deemed classified fire fighters of the fire department, Section 4-9 does not apply to cadets. Therefore, the EMT program does not violate the city ordinance.

Indulging every reasonable inference in HPFFA’s favor, the evidence demonstrates no genuine issue as to the fact that fire department cadets are classified fire fighters and thereby, not violating Chapter 143 or Section 9 of the city ordinance.

CONCLUSION

Because the trial court did not err in granting summary judgment, we affirm the trial court’s judgment.

Justice KEYES, concurring.

EVELYN V. KEYES, Justice,

concurring.

At issue in this case is the legal status of cadets or fire fighter trainees under the Fire Fighters’ and Police Officers’ Civil Service Act, Chapter 143 of the Texas Local Government Code. In two points of error, the Houston Professional Fire Fighters Association (HPFFA) argues that the trial court erred in granting the City of Houston (the City) summary judgment on HPFFA’s claims. HPFFA contends that although Houston Fire Department (HFD) cadets are non-classified civilian employees, under a City program that became effective November 17, 2001, they are performing emergency ambulance services reserved for classified employees; they are thus displacing classified fire fighters in contravention of Chapter 143 and section 4-9 of the Houston Code of Ordinances, entitling the displaced fire fighters to reinstatement of these functions, back pay, and other damages. I agree with the majority that the trial court properly granted summary judgment in favor of the City.

As I see it, the questions for this Court are (1) whether cadets are civilian employees of HFD, or whether, although they are not separately listed as classified employees in the City’s classification ordinance (as the City points out), they are nevertheless classified members of the fire department, and, if the latter, (2) whether, by implementing a program under which cadets furnish emergency ambulance services, the City is violating section 4-9 of the Houston Code of Ordinances, which reads:

Sec. 4-9. Persons authorized to engage in emergency ambulance service.

(a) The operation of emergency ambulances on the streets of the city for the furnishing of emergency ambulance service is hereby declared to be a governmental function of the city to be performed by the fire department in accordance with the terms of this chapter. It shall he unlawful for any person or persons, other than members of such fire department in its classified civil service, while driving emergency ambulances operated by the Fire department, to furnish or to attempt to furnish emergency ambulance service or to operate or drive or cause to be operated or driven any ambulance on the streets of the city for the purpose of furnishing emergency ambulance service.

Houston, Tex., ORDINANCES § 4 — 9(a) (emphasis added.)

Chapter 143, the Fire Fighters’ and Police Officers’ Civil Service Act, defines a fire fighter as “a member of a fire department who was appointed in substantial compliance with this chapter” or who is entitled to civil service status under sections of the Act not applicable here. Tex. Local Gov’t Code § 143.003 (Vernon Supp. 2004-2005). “The term includes employees who perform.... (G) fire medical emergency technology....” Id. Since a fire fighter is, by definition, a person who was appointed in substantial compliance with Chapter 143 and who, inter alia, performs “fire medical emergency technology,” the question becomes whether HFD cadets who perform emergency ambulance services are members of the HFD who were appointed in substantial compliance with Chapter 143; if so, they are, by definition, classified members of the fire department under the Fire Fighters’ and Police Officers’ Civil Service Act, and not mere civilian employees of the fire department.

Section 143.021 of the Act provides that (a) the civil service commission “shall provide for the classification of all fire fighters”; that (b), with certain exceptions inapplicable in this case, “each fire fighter ... is classified as prescribed by this sub-chapter and has civil service protection”; and that (c) each position or classification may be filled “only from an eligibility list that results from an examination held in accordance with this chapter.” Id. § 143.021. Section 143.023 sets out the requirements for eligibility for a beginning position in the fire department; section 143.025 provides for entrance examinations; and section 143.026 prescribes the procedure for filling beginning positions in a fire department by appointment from among those persons having the highest grade on the eligibility list. Id., §§ 143.024,143.025,143.026.

Since HFD cadets must, by law, be appointed in compliance with the requirements of Chapter 143 for beginning positions in a fire department, and since, under the plain language of section 143.021, each is consequently “classified as prescribed by this subchapter and has civil service protection,” HFD cadets necessarily satisfy Houston City Ordinance section 4-9’s requirement that persons “driving emergency ambulances operated by the Fire department” be “members of such fire department in its classified civil service” — unless there is evidence in the record that HFD cadets are not, in fact, appointed as prescribed by Chapter 143, which there is not.

As the City has pointed out in its briefing, HPFFA’s argument that cadets are not classified fire fighters, but civilian employees, is based on nothing more than the City’s failure to list “cadets” in its Fire Department classification ordinance and the former practice of the HFD of not administering the civil service examination to cadets until after they had been hired and completed their training — a practice found to violate Chapter 143 in Nugent v. City of Houston, 159 F.Supp.2d 529 (S.D.Tex.2001), and subsequently changed. There is no allegation and no evidence in this case that the HFD cadets alleged to have performed the emergency medical services contemplated by section 4-9 were, in fact, hired by HFD without compliance with the terms of Chapter 143 and are, therefore, civilians and not classified employees protected by the Civil Service Act. Cf. Lee v. City of Houston, 807 S.W.2d 290 (Tex.1991)(appointment of unclassified civilians who did not meet requirements of Chapter 143 into police department positions that had same supervisory responsibilities as deputy chiefs of police and lieutenants contravened Fire Fighters’ and Police Officers’ Civil Service Act). Nor does HPFFA even make such a complaint. Rather, HPFFA’s complaint is that only fully trained fire fighters may perform emergency medical services and that the performance of such functions by trainees contravenes Chapter 143 and section 4-9. However, neither Chapter 143 of the Local Government Code nor section 4-9 of the City’s Code of Ordinances requires that only classified fire fighters who have completed their training as fire fighters may perform emergency medical services. Thus, there is no statutory bar to the HFD’s program of using cadets to perform emergency ambulance services. HPFFA’s suit is without merit.

Because I agree with the majority that the trial court did not err in granting summary judgment for the City, I concur in the judgment of the panel.

      . Section 143.021 of the Texas Local Government Code requires that the local Civil Service Commission provide for the classification of all fire fighters and that the municipality’s governing body establish the classifications by ordinance. Tex. Loc. Gov't Code Ann. § 143.021(a) (Vernon 1999).

      . Section 419.032 of the Texas Government Code requires completion of a fire training curriculum of all classified fire fighters, except for those appointed to the fire department “on a temporary or probationary basis.” Tex. Gov't Code Ann. § 419.032(a) (Vernon 1998).

      .During the proceedings below, appellants argued that the City had improperly characterized its motion for summary judgment as a no-evidence motion for summary judgment under Texas Rule of Civil Procedure 166a(i). However, the trial court treated the City’s motion as a traditional motion for summary judgment. The trial court’s treatment is not challenged on appeal.

      . Because cadets have not yet completed the state-certification training for fire fighting personnel when they are assigned to HFD ambulances in accordance with the EMT program, this last stage of training is not part of our analysis.

      . HPFFA cites to Section 419.032 of the Texas Government Code for the proposition that such training is required of all classified fire fighters. However, the section contains an exception to these training requirements for those persons appointed to the fire department “on a temporary or probationary basis.” Tex. Gov’t Code Ann. § 419.032(a) (Vernon 1998). Chapter 143 expressly requires all cadets or academy trainees to serve a probationary period for one year beginning on their date of employment. Tex. Loc. Gov’t Code Ann. § 143.027(a) (Vernon 1999). Therefore, a cadet’s lack of state-certification training for fire fighting personnel does not affect whether a cadet is a classified position within the fire department.

      . The terms "trainee” and "cadets” are used interchangeably.

      . Thus, the position of a fire fighter, i.e. in the narrow sense of one who actively fights fires, is not the only position within the fire department capable of classification. Op. Tex. Att’y Gen. No. GA-0041 (2003).

      . An Attorney General Opinion issued in March 2003 clarifies that, even if a member of the fire department is not appointed in substantial compliance with Chapter 143, "each fire department member whose position requires a substantial knowledge of fire fighting and work in the fire department” falls within the statutory definition of a fire fighter and is entitled to civil service protection. Op. Tex. Att’y Gen. No. GA-0041(2003) (emphasis in original); see also Lee v. City of Houston, 807 S.W.2d 290, 294 (Tex.1991) (determining that jobs that require knowledge of police work and work in the police department must be classified); Int'l Ass’n of Firefighters Local 624 v. City of San Antonio, 822 S.W.2d 122, 129 (Tex.App.-San Antonio 1991, writ denied) (applying Lee’s "logic, reasoning, and holding” to position in fire department).

      . The classification ordinance does mention a position entitled "firefighter, probationary,” but this position does not refer to cadets. Section 143.027 makes clear that all fire fighters, police officers, and academy trainees (i.e.cadets) that are appointed to a beginning position "must serve a probationary period of one year beginning on that person's date of employment.... ” Tex Loc. Gov’t Code Ann. § 143.027(a) (Vernon 1999). Therefore, a "firefighter, probationary” as listed in HFD’s classification ordinance refers to employees of HFD who have completed their firefighting training, thus state-certified fire fighting personnel, and are still in their first year of employment since their appointment. See Tex Loc. Gov’t Code Ann. § 143.027(a) (Vernon 1999). Moreover, in his deposition testimony, Fire Chief Connealy indicated that a “trainee” and a “probationary firefighter” are two separate positions within the classification system.

      . Dr. David E. Persse, the physician director of EMS for HFD, as the one "responsible for making sure that the curriculum they are taught both in their initial training and their continuing education is adequate and appropriate,” recognized in his deposition testimony the diversity of what is involved in fire fighting ranging from the typical "house on fire" to a "hazardous materials incident” or "a car wreck with leaking fuel.”

      . We do not reach HPFFA’s contention that the City’s actions amounted to abolition of existing classified positions. Cf. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960) (held classified positions were abolished by city and replaced with "civilian-ized” positions in contravention of the precursor to Chapter 143).

      . The City’s prior practice of treating fire department cadets as civilian employees until they had completed their training was based on its interpretation of the term "beginning positions” in section 143.025 of the Local Government Code, which requires that the civil service commission "shall provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the fire and police departments.” Tex Gov't Code § 143.025 (emphasis added).; hence Nugent’s holding, "Chapter 143 of the Local Government Code contemplates that trainees at the police and fire academies are beginning positions in their departments.” 159 F.Supp.2d at 534. As the City points out, "The Nugent Court’s legal conclusion that the cadet position is a beginning position under § 143.025 simply meant that the cadet position was not and legally could not be a civilian position, even though the City had treated it as such for years.” The record of this case establishes that the City settled the Nugent litigation by entering into a Consent Decree which required, inter alia, that all successful fire department applicants take and pass the Civil Service entrance examination prior to employment pursuant to Chapter 143. This requirement has been in effect since January 1, 2002. Thus the evidence affirmatively refutes the City’s contention that HFD cadets are civilians rather than classified employees of the fire department appointed in compliance with Chapter 143 and entitled to civil service protection.


source: Caselaw Access Project

author: SHERRY RADACK, Chief Justice.

license: Public Domain

text:
    HARRIS COUNTY, TEXAS, Appellant, v. Juan Luis CABAZOS, Jr., Appellee.
    No. 01-03-00772-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 2005.

      Edward J. Mahar, Assistant County Attorney, Houston, TX, for Appellant.
    Richard M. Grimes and Julian J. Fertit-ta, III, Grimes & Fertitta, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

This is an accelerated appeal from the trial court’s order, denying appellant, Harris County, its plea to the jurisdiction on the grounds of governmental immunity. Appellee, Juan Luis Cabazos, Jr., filed a negligence action against Harris County and Sheriff Deputy Matthew Haynes under the Texas Tort Claims Act for injuries appellee sustained from a gunshot fired by Haynes. On appeal, the issue is whether the trial court erred in denying appellant’s plea to the jurisdiction. We reverse.

BACKGROUND

On October 27, 2000, Harris County Sheriff Deputy Matthew Haynes saw ap-pellee make an illegal turn and attempted to pull him over. Appellee failed to stop, and a short chase ensued with appellee driving at a high rate of speed through neighborhoods and a shopping mall area, where he struck a car before he missed a turn and crashed into a ditch. Haynes pulled up behind appellee’s vehicle, got out of his patrol car, and walked toward the driver’s side door of appellee’s vehicle with his pistol drawn. Beverly Ewer, an eyewitness, testified under oath that Haynes, with both hands on the pistol, put his pistol in the driver’s side window before shooting appellee.

Appellee subsequently pleaded guilty to evading arrest in a separate criminal action and then filed suit in federal court against Harris County and Haynes pursuant to 42 United States Code section 1983, but that suit was remanded. See 42 U.S.C.A. § 1983. Appellee filed suit in state court, alleging that Harris County is liable for Haynes’ actions under the doctrine of respondeat superior. Moreover, appellee alleged that Harris County negligently implemented policies and procedures for the arrest of a suspect, and that Haynes negligently discharged his pistol to assault appellee and negligently effectuated appellee’s arrest while acting in bad faith. Appellee argues that these actions preclude Harris County from entitlement to immunity. However, Haynes was never served with process and, therefore, is not a party to this suit.

On December 19, 2002, Harris County filed a plea to the jurisdiction. On June 30, 2003, the trial court signed an order denying Harris County’s plea. This appeal followed.

Discussion

In its sole issue presented, appellant challenges the trial court’s denying its plea to the jurisdiction.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Id. at 446; Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex.1967).

The existence of subject-matter jurisdiction is a question of law. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Immunity

Under the doctrine of sovereign immunity, a governmental entity cannot be held liable for the actions of its employees unless there is a constitutional or statutory provision waiving such immunity. See City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.1998). Sovereign immunity can be waived only through the use of clear and unambiguous language. County of Cameron, 80 S.W.3d at 554; Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994); City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). The Texas Legislature enacted the Texas Tort Claims Act (“TTCA”) to waive sovereign immunity in certain limited circumstances. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998). The TTCA provides as follows

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be hable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). A county, such as Harris County, as a political subdivision of the State, falls within the parameters of the TTCA. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.001 (3)(B) (Vernon Supp.2004-2005).

For a governmental entity such as Harris County to be held hable for the acts of its employee under the TTCA, (1) the claim must arise under one of the three specific areas of liability listed in section 101.021 (property damage, personal injury, and death); and (2) the claim must not fall within an exception to the waiver of sovereign immunity. See Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.] 1995, no writ). The applicable exceptions to the waiver of sovereign immunity are found in section 101.057 of the Texas Civil Practice and Remedies Code, which provides

This chapter [waiving sovereign immunity] does not apply to a claim:
(1) based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion; or
(2) arising out of assault, battery, false imprisonment, or any other intentional tort, including a tort involving disciplinary action by school authorities.

Tex. Crv. Prac. & Rem.Code Ann. § 101.057 (Vernon 1997) (emphasis added). Thus, a governmental entity does not waive its sovereign immunity to a party’s claim for personal injury or death if that claim arises out of an intentional tort. See Morgan v. City of Alvin, No. 01-02-01212-CV, 2004 WL 2005968, at * 5 (Tex.App.-Houston [1st Dist.] Sept. 9, 2004, no pet.); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). Although a governmental unit is immune from claims arising out of intentional torts, an injured party may still pursue a separate negligence claim arising out of the same facts. Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex.1990) (“Although a governmental unit is immune from claims arising out of intentional torts, petitioners’ negligent employment and entrustment claims arise out of the alleged negligence of the city employees supervising the officer, not out of the officer’s intentional tort.”) (citations omitted). However, the intentional tort exception cannot be circumvented merely by alleging that the governmental unity was negligent in supervising the employee-tort-feasor. Delaney v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex.1992).

Parties’ Contentions

In his pleadings, appellee alleged that the court has jurisdiction over these claims under the TTCA because (1) the TTCA waives governmental immunity for personal injury caused by a state employee’s negligent use of governmental property;

(2) Deputy Haynes is not entitled to official immunity for his bad faith acts of negligence, and (3) Harris County is liable for Haynes’ actions under the doctrine of respondeat superior and appel-lee alleges that Harris County is liable for negligent supervision of Haynes. Employees of governmental units are entitled to official immunity solely for actions or omissions arising out of the performance of discretionary duties, in good faith, and when the employee is acting within the scope of his or her authority. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Although appellee concedes that Haynes was performing a discretionary duty for Harris County, appellee contends Haynes acted in bad faith when he negligently discharged his pistol and negligently effectuated the arrest of ap-pellee, and, therefore, Haynes is not entitled to official immunity; since Haynes has no official immunity, Harris County is hable for his negligent actions under the doctrine of respondeat superior. Moreover, appellee alleged that Harris County acted negligently in implementing its policies and procedures by failing to adequately train and supervise Haynes, whose negligence was a proximate cause of appellee’s injuries. Finally, appellee argues that Harris County is not protected by the exception to the waiver of sovereign immunity under TTCA for intentional torts. Rather, Haynes negligently shot appellee; he negligently used his pistol; he failed to properly use his patrol car to box in appellee, and he negligently endangered appellee and those people in the vicinity.

In its plea to the jurisdiction, Harris County alleges, first, that appellants failed to circumvent the intentional tort exclusion of the TTCA, section 101.057(2). See Tex. Civ. Prac. & Rem.Code Ann. § 101.057 (Vernon 1997). Because claims arising out of intentional torts committed by government employees are barred as a matter of law, Harris County contends that it is immune from appellee’s claims, which allege what are actually intentional tort claims despite appellee’s efforts to mask the claims in terms of negligence. Harris County further alleged that appellee cannot circumvent the intentional tort exclusion by alleging that the governmental unit, Harris County, was negligent in supervising the employee-tortfeasor, Haynes. See Delaney, 835 S.W.2d at 60. Citing Texas Department of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex.2001), Harris County argues that its sovereign immunity was not waived by appellee’s claim that Haynes negligently ignored police procedure and policies in his pursuit of appellee or his shooting of appellee because such acts are intentional acts. Finally, Harris County alleged that even if appellee’s claims are not for intentional torts, his claims are barred because his injuries were not caused by “a condition or use of tangible personal or real property.” See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(2) (Vernon 1997). Rather, Harris County argues that the pistol used by Haynes was used in furtherance of his tortious acts as alleged by appellee and did no more than furnish a condition that made the injury possible. See City of Laredo v. Nuno, 94 S.W.3d 786, 790 (Tex.App.-San Antonio 2002, no pet.) (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex.1988)).

Therefore, the first question for this Court is whether appellee’s injuries were proximately caused by Haynes’ intentional tort or by his negligence.

Intentional Tort Exclusion

While the TTCA waives the sovereign immunity of a governmental entity for personal injury and death arising out of the use of tangible personal property, it specifically excludes waiver of immunity for a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021(2), 101.057(2). Here, Hands County claims that it has immunity because Haynes’ actions were intentional and appellee has failed to circumvent the intentional tort exclusion. Appellee, on the other hand, contends that the intentional tort exception does not apply because appellant’s injuries were proximately caused by Haynes’ negligent performance of his official duties. Citing Delaney, 835 S.W.2d at 60, appellee claims that the intentional tort exception of TTCA cannot be read so broadly as to except from the waiver of immunity any claim for injuries resulting from an intentional tort when negligent and intentional acts both contribute to the occasion of injury.

In Delaney, the Texas Supreme Court held that a negligence action by a rape victim against a public university was not barred by sovereign immunity where the plaintiffs cause of action was based on the university’s alleged failure to provide her a secure residence and to fix a broken lock. Id. The supreme court noted that section 101.057(2) of the TTCA precludes the extension of the TTCA’s waiver of immunity to claims “arising out of assault, battery, false imprisonment, or any other intentional tort.” Id. at 59. However, it stated that the phrase “arising out of’ in section 101.057(2) requires a certain nexus for the provision to apply; that nexus is between the claim and an intentional tort, and the intentional tortfeasor must be the governmental employee whose conduct is the subject of complaint. Id. In that case, the intentional tortfeasor, the rapist, was not the governmental employee whose conduct was the subject of Delaney’s claims against the university. Distinct negligence claims that focus on the actions of the governmental defendant are not barred. Id.

Here, the gravamen of appel-lee’s claim is that a Harris County sheriff wrongfully shot appellee. Thus, in contrast to Delaney, the tortfeasor is the governmental employee whose conduct is the subject of the complaint, thereby satisfying section 101.057(2)’s requirement of a nexus between appellee’s claims against Harris County and the intentional tort. If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA. See Petta, 44 S.W.3d at 580; Nuno, 94 S.W.3d at 789; Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 450 (Tex.App.-Fort Worth 2001, no pet.); Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.). A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence. See Huong v. City of Port Arthur, 961 F.Supp. 1003, 1008-09 (E.D.Tex.1997) (plaintiffs cannot circumvent intentional tort exception to waiver of liability by simply pleading negligence when shooting event upon which they base their claims is actually intentional tort); Petta, 44 S.W.3d at 580 (plaintiffs claim that officer was negligent in ignoring police procedure did not obviate fact that conduct was intentional; conduct complained of — officers hitting car window, aiming gun, blocking car in with police cruiser, and firing at car’s tires — was clearly intentional; despite plaintiffs claim that injuries were proximately caused by officer’s and department’s negligence, plaintiffs .allegations fit squarely within section 101.057’s exclusion); Nuno, 94 S.W.3d at 788 (despite plaintiffs efforts to phrase claims in terms of officer’s negligent failure to properly place plaintiff in police vehicle and negligent indifference of other officers and city, focus of plaintiffs claims against city was officer’s intentional tortious acts of using excessive force to arrest plaintiff and to illegally seize ear, and was barred); Medrano, 989 S.W.2d at 144 (where focus of claim was on officers’ alleged violent and negligent beating of handcuffed driver, intentional tort exception could not be circumvented merely by alleging negligent hiring, negligent training, and negligent failure to train).

In this case, appellee alleged in his petition that Haynes was negligent in discharging his pistol and in effectuating ap-pellee’s arrest, thus injuring appellee. Appellee also alleged that Harris County was negligent through implementation of its policies and procedures by failing to train and supervise Haynes and through the doctrine of respondeat superior. However, despite appellee’s efforts to phrase his claims in terms .of negligence, his focus is on the shooting, of appellee. Appellee is attempting to circumvent the intentional tort exception in the manner expressly disapproved by the Texas Supreme Court in Delaney. See 835 S.W.2d at 60 (“[T]he intentional tort exception could not be circumvented merely by alleging that the government was negligent in supervising the employee-tortfea-sor_”); Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.) (although plaintiffs’ alleging negligent hiring, negligent training, and negligent failure to train claims against officer who used flashlight to beat a handcuffed suspect, court found officer acted intentionally and held plaintiffs’ could not circumvent the intentional tort exception by mere allegations of negligence against the City).

Despite Haynes’s alleged negligence in shooting appellee, the pleadings and other evidence pertinent to determining jurisdiction demonstrate that Haynes intended to shoot appellee. In his petition, appellee pled, “The Plaintiffs vehicle was stopped in a ditch, at which point Haynes exited his patrol car, drew his pistol and walked directly to the driver’s side door of the vehicle occupied by the Plaintiff and shot the Plaintiff in the neck.” Thus, on appellee’s own recounting, Haynes moved toward ap-pellee’s vehicle after it had crashed into the ditch, he pulled his pistol as he approached appellee’s vehicle, and Haynes aimed it at appellee before shooting him. Although appellee also pled, “Haynes contends that Plaintiff was attempting to back over him with his car, that he fired a shot to stop the reverse motion of the car,” eyewitness Beverly Ewer testified at her deposition, under oath, that Haynes “took aim because he had both hands on the gun and [his hands] went into the car.” Ewer further implied that Haynes’s acts were intentional when she denied that Haynes was merely “standing on the road and firing a shot in the general direction of Mr. Cabazos’s car.” Thus, both the pleadings and the evidence relevant to the jurisdictional issue raised demonstrate that Haynes’s acts were intentional torts intended to cause injury to appellee, not acts of negligence. The injuries alleged by appellee arose out of Haynes’s intentional acts, and not from a distinct act of negligence by Harris County. The use of Haynes’s pistol, as a consequence of his intentional tort, cannot be attributed to Harris County as negligence. Because Haynes’s actions were intentional rather than negligent, they do not fall within the waiver of sovereign immunity.

Appellee does not allege an accidental shooting, such as the inadvertent discharge of the pistol; nor does the pleading and evidence indicate that the shooting of appellee was anything but intentional. Thus, as in most cases, the intent to injure can be inferred from the actor’s conduct. Although Haynes may not have intended his initial action, he did intend the ultimate injury-shooting appellee. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (difference between negligence cause of action and intentional tort is not whether defendant intended the acts, but whether defendant intended resulting injury). Because the focus of appellee’s claims is on Haynes’s intentional tortious conduct, Harris County’s immunity is not waived. See Nuno, 94 S.W.3d at 789; Medrano, 989 S.W.2d at 141.

After looking to the jurisdictional evidence and allegations, taking them as true, and construing them in favor of the appel-lee, we conclude that appellee’s petition does not present a claim for which immunity is waived by the TTCA. Therefore, the trial court erred in denying Harris County’s plea to the jurisdiction. We sustain appellant’s sole issue.

Because we conclude that Harris County has sovereign immunity under the intentional tort provision of the TTCA, section 101.057, we do not discuss appellee’s additional claims.

CONCLUSION

We reverse the judgment of the trial court and render judgment granting Harris County’s plea to the jurisdiction.

      . Appellee's subsequent state suit contained substantially the same claims as the federal suit.

      . In its plea to the jurisdiction, Harris County states, "The Plaintiff's claims are actually intentional tort claims barred by the Texas Tort Claims Act and/or an attempt to circumvent the Texas Tort Claim Act by pleading intentional tort actions performed negligently.”

      . In Petta, the Texas Supreme Court stated:
      We have also said, however, that the Tort Claims Act waives sovereign immunity from suit for claims that an officer negligently carried out governmental policy. But Petta does not allege facts demonstrating that Rivera negligently implemented policy. To support her negligence claim, Petta alleges that Rivera negligently ignored police procedure by continuing the pursuit, and that Rivera negligently ignored an order not to shoot at her car. But these too are intentional rather than negligent acts, and thus do not fall within the waiver of sovereign immunity.
      44 S.W.3d at 580.

      . A similar argument was rejected by the Texas Supreme Court in Petta:

      To support her negligence claim, Petta alleges that Rivera negligently ignored police procedure by continuing the pursuit, and that Rivera negligently ignored an order not to shoot at her car. But these too are intentional rather than negligent acts, and thus do not fall within the waiver of sovereign immunity.
      44 S.W.3d at 580. The court recognizéd its holding in Young that a claim for negligent supervision or training such as that alleged here, was a distinct cause of áction; but it held that a governmental entity’s negligence in failing “to furnish the proper training, instruction, training manuals, and documents” was negligent failure to furnish information for which immunity was not waived by the TTCA. Id. at 580-81 (citing Young v. City of Dimmitt, 787 S.W.2d 50 (Tex.1990)).

      . See Durbin v. City of Winnsboro, 135 S.W.3d 317, 324 (Tex.App.-Texarkana 2004, pet. denied) (fundamental difference between negligence cause of action and intentional tort is whether defendant intended resulting injury).


author: ELSA ALCALA, Justice.

text:
    Penny BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-0066-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 27, 2005.

      Brian W. Wice, Houston, for Appellant.
    Lori Deangelo Fix, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty-Harris County, Houston, for appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellant, Penny Baker, pleaded not guilty to the misdemeanor offense of driving while intoxicated (DWI). The jury found him guilty. In accordance with an agreed recommendation between the State and appellant, the trial court assessed a suspended punishment of 180 days in jail, and a fine of $1,000, and placed appellant on community supervision. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). In four points of error, appellant contends that the trial court erred by (1) admitting into evidence what appellant contends is effectively a copy of a page of an offense report and declining to give a limiting instruction concerning the exhibit, and (2) overruling appellant’s objection and overruling appellant’s motion for a mistrial on the grounds that the State allegedly argued matters outside the record. Appellant also contends, in his fifth point of error, that the evidence is factually insufficient to sustain his conviction. We affirm.

Background

At approximately 2:30 a.m. on February 8, 2002, Houston Police Department (HPD) Officer Green stopped appellant on Westheimer Road in Houston for driving 61 miles per hour in a 35 mile per hour zone. Officer Green asked appellant for his driver’s license and proof of insurance. Appellant produced his insurance card, but was unable to locate his driver’s license.

Officer Green noticed that appellant had a strong odor of alcohol on his breath and “fair to slurred” speech. Upon questioning, appellant revealed that he had consumed three beers in four hours and that he had drunk his last beer 30 minutes before he was stopped. Officer Green asked appellant if he had any medical problems. Appellant first said he had no medical problems, but later indicated he was taking medicine for high blood pressure.

Officer Green conducted the Horizontal Gaze Nystagmus (HGN), Rhomberg, walk- and-turn, and one-leg-stand field-sobriety tests on appellant. Appellant’s performance on the field-sobriety tests was recorded on videotape by Officer Green, who had videotape equipment in his police car. Each of the field-sobriety tests indicated that appellant was intoxicated, and Officer Green formed the opinion that appellant had lost the normal use of his mental and physical facilities due to the introduction of alcohol into his body.

After appellant’s arrest, Officer Green conducted an inventory search of appellant’s car and found appellant’s wallet and driver’s license in the “driver’s compartment area.” While at the police station, appellant refused to submit a breath specimen into an intoxilyzer instrument. Officer Green did not offer appellant the opportunity to perform the field-sobriety tests at the station because he believed they were not necessary, due to the earlier recording of appellant’s performance on the field-sobriety tests at the scene.

At trial, appellant challenged Officer Green’s assertions that he was intoxicated by introducing medical records showing that appellant’s right ankle had been fractured in 1989 to explain why appellant had difficulty performing the field-sobriety tests. Appellant’s defense consisted of testimony from friends and coworkers who were with him during the night that he was arrested and who testified that he was not intoxicated.

Factual Sufficiency

In his third point of error, appellant contends that the evidence is factually insufficient to sustain the jury’s verdict. When conducting a factual-sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). In conducting this review, we must discuss evidence that appellant contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Unless the available record clearly reveals that a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the jury’s determination concerning what weight to give conflicting testimony because resolution often turns on evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

Testimony by Officer Green

Appellant contends that the evidence is factually insufficient because Officer Green’s own testimony established that (1) nervousness could account for an individual’s mental and physical mistakes, (2) an odor of alcohol would remain on a person who had consumed three beers in over six hours, (3) it would have been important to know that appellant had a preexisting ankle injury that weakened his right ankle and affected his ability to perform field-sobriety tests, (4) appellant performed the counting test perfectly twice and performed the heel-to-toe walk correctly, (5) many people speed on Westheimer Road, (6) appellant did not weave while driving and complied with the officer’s request to pull over, (7) no medical evidence equated an inability to correctly estimate 30 seconds, within a margin of error of five seconds, with a loss of normal use of mental or physical faculties, (8) very few people can hold up a leg for 30 seconds, (9) the officer could not say whether appellant’s performance on the field-sobriety tests was “him being normal or him being intoxicated,” (10) the officer was not familiar with appellant’s normal mental and physical faculties, and (11) in contravention of general practice, no station-house video of appellant was made.

Although appellant’s nervousness, the odor of alcohol, the effect of his preexisting ankle injury on his performance of the field-sobriety tests, and his performing parts of the field-sobriety tests properly constitute evidence that could be consistent with sobriety, it was within the province of the jury to reconcile these discrepancies, to the extent that they conflicted with Officer’s Green’s testimony, in determining what weight to give his testimony that appellant was intoxicated. See id.; see also Speer. v. State, 890 S.W.2d 87, 90 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (stating that jury is free to believe or disbelieve all or any part of a witness’s testimony). Concerning appellant’s driving characteristics — his speeding, not weaving, and pulling over as requested, as Officer Green explained, these neither prove nor disprove that an individual is intoxicated. As the factfinder, the jury was likewise free to consider these circumstances in evaluating whether appellant was intoxicated. See Johnson, 23 S.W.3d at 8; Speer, 890 S.W.2d at 90.

Appellant has misstated Officer Green’s testimony in asserting that the officer acknowledged that no medical evidence establishes a correlation between underestimating 30 seconds and a loss of normal use of mental or physical faculties. The record shows that Officer Green merely acknowledged that there was “no medical article” on the subject; Officer Green never stated that there was no medical evidence. The record is unclear concerning Officer Green’s response to the question asking whether very few people can hold up a leg for 30 seconds. In the context of the record, however, it appears that the officer’s testimony focused on difficulties that intoxicated people, rather than sober people, encounter in attempting to hold up a foot for 30 seconds. Regardless, we defer to the jury, which was in the best position to judge the officer’s credibility and demeanor, and its resolution of any inconsistencies in the testimony concerning appellant’s performance on the field-sobriety tests in deciding whether appellant was intoxicated. See Johnson, 23 S.W.3d at 8; Speer, 890 S.W.2d at 90.

The record reflects that, although Officer Green agreed that he did not know whether “it was him being normal or him being intoxicated,” because he had no prior contact with appellant, the officer refused to go so far as to agree that appellant could have been either “intoxicated” or “normal.” No law, however, requires that an officer have prior contact with a defendant. Prior knowledge of the defendant’s normal state is not a prerequisite to testimony by an officer that he believed that the defendant was intoxicated. See Railsback v. State, 95 S.W.3d 473, 484 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see also Massie v. State, 744 S.W.2d 314, 316 (Tex.App.-Dallas 1988, pet. ref'd) (holding that, if evidence exists “that appellant could not use his faculties on the occasion in question, in the manner in which the normal non-intoxicated person would be able to use his. faculties, the evidence is sufficient to convict.... ”).

Finally, the question whether station-house videotapes of a defendant’s performance of field-sobriety tests at the police station are customarily made, or not made, is also an issue properly left to the jury to assess in determining both Officer Green’s credibility as a witness and the weight to give his testimony. See Johnson, 23 S.W.3d at 8.

Testimony by Appellant’s Witnesses

Appellant also contends that the evidence is factually insufficient to sustain his conviction because he presented testimony that (1) he drove his car without any problems, (2) his friend would not have allowed him to drive if he had been intoxicated, (3) he did not slur his speech, (4) he performed the field-sobriety tests in a manner that was normal for him, (5) he was not intoxicated, and (6) he appeared nervous, but not intoxicated, on the videotape.

The jury was free to accept the testimony presented by the defense witnesses or to reject it, and the jury chose the latter. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Because this ease is based exclusively on whether Officer Green or appellant’s witnesses were more credible, which testimony was more persuasive, and what weight to give conflicting versions of vital facts, we cannot and should not circumvent the jury’s finding. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 407.

Videotaped Evidence

Appellant further contends that the videotape taken at the scene does not show that he (1) slurred his speech, (2) swayed during the tests, (3) had any trouble walking, and (4) performed the field-sobriety tests normally, except for starting one test prematurely, and using his hands “a bit” during the one-leg-stand test. The jury viewed the videotape. Because it was a videotape only, with no audio, the tape does not demonstrate whether appellant’s speech was slurred. No tape recording captured appellant’s speech that night. What weight to give to the videotape and to Officer Green’s descriptions of appellant’s performance of the field-sobriety tests that appellant performed on the videotape were all matters properly left for the jurors’ resolution based on their evaluation of the credibility of the testimony. See Johnson, 23 S.W.3d at 8; Cain, 958 S.W.2d at 407.

Evidence of Intoxication

Officer Green testified that, in his opinion, based on appellant’s performance on the field-sobriety tests, appellant was intoxicated by the introduction of alcohol into his body. Officer Green found six out of six possible clues on the horizontal gaze nystagmus (HGN) field-sobriety test administered to appellant at the scene. For the Rhomberg field-sobriety test, appellant estimated 30 seconds as 19 seconds and exhibited a one-inch, front-to-back, sway that was outside the normal range for the test. During his performance of the one-leg-stand field-sobriety test, appellant stood on his left foot and raised his right foot. Appellant had three of the four possible clues for intoxication by swaying, using arms for balance, and hopping. He did not, however, exhibit the fourth clue by dropping the raised foot.

Appellant also performed the walk-and-turn field-sobriety test. Of eight possible clues for intoxication on the walk-and-turn test, appellant had four clues. He began too soon, used his arms for balance, made an improper turn, and, at the turn, “kind of staggered” off the line.

Having reviewed all the evidence in a neutral light and in accordance with appellant’s challenges, we cannot say either that the evidence supporting the jury’s finding appellant guilty is so weak that the verdict is clearly wrong and manifestly unjust, or that appellant’s contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. See Escamilla v. State, 143 S.W.3d at 817. We hold that the evidence was factually sufficient to support appellant’s conviction for DWI.

We overrule appellant’s third point of error.

Offense Report Admitted as Demonstrative Evidence

In his first point of error, appellant contends that the trial court erred by admitting, as State’s Exhibit four, a large chart that approximated a page of an offense-report form, as demonstrative evidence. When offered as demonstrative evidence, the chart had preprinted categories on it, on which entries were to be placed, but there were no entries on it.

Pursuant to our abatement of this appeal, the trial court provided a copy of State’s Exhibit four for the record on appeal. Exhibit four was entitled, “Evidence of Intoxication.” The top third of the page began with title, “Observations Regarding Defendant.” Under this section, the form had blanks for “Clothing Condition”: “Mussed, Orderly, Soiled, Disorderly.” An empty oval appeared before each of the four words describing the clothing condition. Next to that section was “Type/Col- or” of “Hat/Cap,” “Jacket/Coat,” “Shirt/ Dress,” and “Pants/Skirt,” and blank lines after each of the topics for information to be filled in. The form then had the following words listed with a blank line next to the words: “Breath, Walking, Balance, Attitude, Turning, Speech.” Below that section, another section called for the following information by providing a blank line next to the subject as follows: “Suspects [sic] Medical Condition,” “Suspect Taking Medication? Yes/No”; “If Yes, What?”; “Suspect Admits to Drinking?” “Yes/No How Much?”; “Type (Brand & Size)”; “Time Took 1st Drink”; “Time Took Last Drink”; ‘When Ate Last”; “Ate What?”; and “Suspect’s Statements.”

The top middle section of the chart was entitled, “Driving Observations,” and the following information was listed in that section: “Liquor Found in Vehicle Yes No”; “Other Passengers in Vehicle Yes/No (Adult Children_)”; “Road Type”; “Weather”; “Traffic Condition”; “Driving Manner Speeding Yes No”; “How Fast”; ‘Weaving Yes No”; and “Ran Stop Sign/Red Light Yes No.” Ovals appeared before each of the ‘Yes” and “No” choices, and the other areas had blank lines next to the words.

The State offered Exhibit four as “demonstrative evidence purely for the jury just to — for visual aid so they understand what exactly the police officer is looking for when he’s going through the steps about intoxication.” Appellant’s trial eoun-sel objected that the State would be effectively offering an offense report into evidence if the State intended to have the officer testify to the information on the form and then add information to the form as the officer testified before the jury. The trial court admitted the exhibit as “demonstrative evidence only.”

As Officer Green testified, the prosecutor filled in the blanks under the “observation section” on the chart without any objection from appellant’s attorney to the written entries’ being added to the exhibit. The oval next to “orderly” for the clothing condition was thus darkened. The word “white” was written on the blank line next to shirt/dress,” and “tan” was written on the blank line next to “pants/ skirt.” As Officer Green continued to respond to the prosecutor’s questions, information was added to the chart to show that no liquor was found in the vehicle; one adult was found in the vehicle; the road was concrete; and the weather was cool. The oval next to “yes” was filled in to show that appellant was speeding, but the “no” ovals were filled in to show that appellant was not weaving and did not run a stop sign. In addition to showing that appellant had a strong odor of an alcoholic beverage on his breath, the chart also displayed a description of appellant’s walk- and-turn as “unsteady,” a description of his balance as “poor,” a description of his attitude as “fair,” and a description of his speech as “fair/slurred.” The chart showed that appellant was not taking medication, that the space “medical condition” was left blank, and that appellant admitted that he had consumed three beers, with his first beer at 8 p.m. and his last beer 30 minutes before he was stopped by Officer Green. Under the section, “Suspect’s Statements,” the officer wrote that appellant later stated that he was taking high blood pressure medicine. There is also a notation next to the blank for when appellant had last eaten, but the notation is illegible.

The record reflects that the chart, with its entries added as Officer Green testified before the jury, was never admitted into evidence for any purpose other than demonstrative evidence. The chart was never offered or admitted into evidence for all purposes and was admitted as “demonstrative evidence only” before the prosecutor added entries as the officer testified. Once the blanks in the chart were filled out, appellant’s trial counsel represented to the court that the chart before the jury was an “exact duplicate” of page two of Officer Green’s offense report “through the observation section.” When appellant’s trial counsel offered Officer Green’s offense report into the record for “appellate purposes,” the trial court ordered the offense report included in the appellate record. As supplemented following abatement, the record reflects that the trial court was of the opinion that all of that information on the chart exhibited before the jury was the same information contained in the corresponding section of the police report.

We review trial-court rulings admitting evidence under an abuse of discretion standard. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993). Abuse of discretion occurs when a decision by the trial court is “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

Public records and reports, in any form, of public offices or agencies setting forth matters observed pursuant to a duty imposed by law as to which matters there was a duty to report are not hearsay, even if the declarant is available as a witness. Tex.R. Evid. 803(8)(B). An exception controls criminal cases, however, in which records and reports concerning matters observed by police officers and other law enforcement personnel are inadmissible hearsay. See id.; Cole v. State, 839 S.W.2d 798, 804-07 & n. 8 (Tex.Crim.App.1990) (op. on reh’g) (holding that full-time forensic chemists employed by Texas Department of Public Safety were law-enforcement personnel whose reports were not admissible under either the public-record hearsay exception, rule 803(8)(B), or the business-record hearsay exception, rule 803(6)); Bermen v. State, 798 S.W.2d 8, 12 (Tex.App.-Houston [1st Dist.] 1990, pet. dism’d) (holding that records referring to defendant as escaped prisoner and escape risk were not admissible because exception for public records, rule 803(8)(B), specifically excluded them as records of law enforcement personnel; further holding that specific exclusion controlled over business-record hearsay exception, rule 803(6)).

Accordingly, had the State attempted to offer Officer Green’s actual report into evidence to prove that the observations contained in it were true, the report would properly have been excluded as inadmissible hearsay under rule 803(8)(B), given that Officer Green is a law-enforcement officer and that the report he prepared contains his observations. See Tex.R, Evid. 803(8)(B); see also Tex.R. Evid. 801(d) (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial, that is offered in evidence to prove the truth of the matter asserted in the statement”). In keeping with rule 803(8)(B)’s prohibition, the officer’s actual offense report here was not admitted into evidence for any purpose, and appellant does not complain that the actual offense report was erroneously admitted.

Rather, appellant contends that, once completed and filled in as a result of Officer Green’s testimony, the contents of the chart approximated the contents of the inadmissible police report. Accordingly, appellant argues, the trial court erred by admitting the blank chart, which had the same categories as the offense report, as demonstrative evidence, because the completed chart essentially recreated the officer’s offense report before the jury as he testified and admitting the chart as demonstrative evidence allowed the State to circumvent the hearsay prohibition.

Appellant’s issue presents an interesting question concerning how a police officer may testify. Although a law-enforcement officer’s report is inadmissible under rule 803(8)(B), well-settled precedent interpreting rule 611 of the Rules of Evidence recognizes that the officer may refer to his report to refresh his memory and may then testify in open court from his refreshed memory. See McCoy v. State, 877 S.W.2d 844, 845 (Tex.App.-Eastland 1994, no pet.). It is not unreasonable, therefore, to anticipate that a police officer will refer to the offense report during trial to refresh his memory of the events and that the officer will testify consistently with his police report. Thus, to a large extent and in most instances, the officer’s testimony will likely be similar to the contents of his offense report. An officer’s testimony is not inadmissible merely because his testimony is identical to the contents of his offense report. Johnson v. State, 846 S.W.2d 373, 376 (Tex. App-Houston [14th Dist.] 1992), rev’d on other grounds, 853 S.W.2d 574 (Tex.Crim.App.1993) (noting that officer referred to, but did not read from, offense report not in evidence when stating that admitted photocopy of $10 bill was identical to $10 bill referred to in offense report).

As initially offered by the State, the chart falls under the category of demonstrative evidence used as a visual aid or illustration. See 1 Steven Goode et al. Guide to the Texas Rules of Evidence § 401.5 at 127 (3d ed. 2002) (Goode). The trial court’s discretion to permit the use of visual aids, charts, and diagrams during trial is well-established. See Markey v. State, 996 S.W.2d 226, 231 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (listing numerous cases). To be admissible, objects offered as demonstrative evidence must meet the tests of relevancy and materiality, as well as the limitations imposed by rule 403. See Goode § 401.5 at 128. In contrast to mere demonstrative evidence, which is admitted solely for purposes of illustration, the trial court may, in the exercise of its discretion, admit into evidence for all purposes either “real” evidence, for example, the actual objects involved in a case, or “reproduced real” evidence, for example, photographs, maps, or drawings that approximate the actual objects or places involved in a case. See id.; Markey, 996 S.W.2d at 231 (holding that trial court erred, but harmlessly, by admitting into evidence, for all purposes, chart summarizing officer’s testimony).

Appellant objected to the chart when it was first offered and had not yet been filled in on the grounds that it was hearsay. Nothing in the hearsay provisions of the rules of evidence prohibited the State from introducing the chart as demonstrative evidence. As noted above, “hearsay” is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted in the statement. See Tex.R. Evid. 801(d) (emphasis added). When the prosecutor offered the chart as demonstrative evidence, it contained no assertions of any kind because the chart consisted of mere blanks and ovals to which information was yet to be added. The chart made no assertions until the officer responded to questions by the prosecutor. As the officer responded, the prosecutor inserted the responses into the blanks and ovals. The information on the chart was thus tendered to the jury in open court as the officer testified. By definition, the information offered by the officer as he testified was not an “out of court statement” offered to prove the truth of the matter asserted. See id.

Moreover, because nothing in the record shows that the chart was an actual copy of the offense report itself — as opposed to a chart that contained the same information — the chart was not inadmissible under rule 80S(8)(B) of the Rules of Evidence. See Tex.R. Evid. 803(8)(B).

We cannot conclude that the chart showing information similar to that contained in a police report is inadmissible as demonstrative evidence solely because the officer used the same words that he used in his offense report to describe appellant’s actions. Under the circumstances presented here, therefore, we conclude and hold that the demonstrative use of the chart was not inadmissible hearsay.

We overrule appellant’s first point of error.

Limiting Instruction

In his second point of error, appellant contends that he was entitled to a limiting instruction cautioning jurors that State’s Exhibit four, the chart addressed above, was admitted solely for demonstrative purposes. Rule of Evidence 105(a) states that, “when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Limiting instructions ensure that the jury does not rely on admitted evidence for an impermissible purpose. Lewis v. State, 815 S.W.2d 560, 566 (Tex.Crim.App.1991). The court need not provide a limiting instruction when the evidence can be considered on any relevant issue in the case. Lane v. State, 822 S.W.2d 35, 40 (Tex.Crim.App.1991).

We conclude that the trial court erred by not instructing the jury that the chart on which the prosecutor recorded Officer Green’s responses was admitted into evidence for demonstrative evidence only. The chart was used as a visual aid to assist the jury while the officer testified, but it was not admitted into evidence for the jury’s use while they deliberated. See Markey, 996 S.W.2d at 231. Accordingly, the trial should have instructed the jurors that the chart had a purpose limited to assisting them, if it did, in understanding the officer’s testimony as he testified in court.

To warrant reversal of the judgment of the trial court, error must affect the substantial rights of the parties. Tex.R.App. P. 44.2(b). A substantial right is affected “when the error had a substantial and injurious effect or influence in determining a jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). We should not overturn a verdict if we have fair assurance that the error in question either did not influence the jury or, if it did influence the jury, that its effect was only slight. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

We disagree with appellant’s contention that the trial court committed harmful error by not providing a limiting instruction because the chart bolstered the officer’s testimony. As addressed above, the chart was a visual aid that merely recorded, in written form, what the officer stated orally. Because the officer attested, through his oral testimony, to all of the information on the chart, the contents of the chart were properly admitted for all purposes before the jury. We therefore conclude that the trial court’s error in not instructing the jury that the chart was limited to use as a visual aid during the officer’s testimony was harmless.

We overrule appellant’s second point of error.

State’s Closing Argument

In his fourth and fifth points of error, appellant contends that the trial court erred by overruling appellant’s objections that the prosecutor asserted matters beyond the record in closing argument to the jury. Proper jury argument is limited in scope to the following: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the argument of opposing counsel; and (4) pleas for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997); Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App.1991).

NHTSA Standards

Appellant contends that the State argued outside the record and injected new facts that harmed appellant when the prosecutor stated that Officer Green performed the HGN test exactly as NHTSA standards dictate. The State counters that its argument was a summation of the evidence and a reasonable deduction from the evidence.

During closing argument, the prosecutor stated, “Now the Defense would have you believe that the [HGN] test was performed incorrectly. Now according to N.H.T.S.A. standards ... that officer did it exactly....” When appellant’s trial counsel objected that the NHTSA standards were not in evidence, the trial court overruled the objection.

Officer Green had previously testified (1) that he is a certified practitioner in the HGN test; (2) that, as part of his training, he was taught the HGN, walk-and-turn, one-leg-stand, and Rhomberg standardized field-sobriety tests; and (3) that, the “N.H.T.S.A. sets the standards for these tests.” The State’s argument to the jury that the officer performed the tests according to NHTSA standards was not a reasonable deduction from evidence that was properly before the jury. Accordingly, the trial court erred by overruling appellant’s objection to the prosecutor’s argument.

Rule 44.2(b), which now governs reversible error in criminal case, requires that we disregard all error, except constitutional error, “that does not affect [appellant’s] substantial rights.” See Tex.R.App. P. 44.2(b). Appellant does not contend that the trial court’s error was constitutional. The Court of Criminal Appeals has identified three relevant factors for assessing the impact of harm arising from non-constitutional jury-argument error under rule 44.2(b), as follows: (1) the “severity of the conduct (the magnitude of the prejudicial effect of the prosecutor’s remarks)”; (2) the “measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge)”; and (3) the “certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” See Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex.Crim.App.2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998)).

The first harm factor, the degree of misconduct, was mild to insignificant in this case. Although the trial court overruled appellant’s objection to the argument, the prosecutor proceeded in closing argument as if the objection had been granted and switched to an entirely different topic for argument, which he continued without any additional references to the NHTSA. Appellant did not request that the trial court instruct the jury to disregard the comment, and the trial court therefore did not provide instructions to disregard. Regarding the third factor, the certainty of conviction without the prosecutor’s fleeting reference to NHTSA standards, given the evidence of appellant’s guilt, we cannot say that the improper argument played a major part in the jury’s finding appellant guilty. The record of the trial of this case shows that the major issue in dispute was whether the jury should believe appellant’s version of the facts or Officer Green’s. Because no testimony in the record established what the NHTSA standards were or explained the significance, if any, of compliance or noncompliance with those standards, the prosecutor’s erroneous statement could not reasonably have affected the jury’s decision to convict appellant.

Accordingly, although the prosecutor went beyond the record by referring to the officer’s compliance with NHTSA standards, we cannot say that overruling the objection was harmful error under the record presented here. See Threadgill, 146 S.W.3d at 666.

Videotape

Appellant also complains that the State’s attorney improperly argued matters outside the record when he stated, “Now, Mr. Trichter gets up here with that video tape and says, wouldn’t you like to have the original? Wouldn’t you like to have the original? That officer gets on the stand and says this is an exact duplicate of the original.... He recycles those tapes after transferring it to another tape which is standard practice throughout the county and it has been.” The trial court sustained appellant’s attorney’s objection, instructed the jurors to disregard the statement, and denied appellant’s motion for mistrial. Appellant contends that the trial court erred by not declaring a mistrial.

An instruction to the jury to disregard improper jury argument generally cures the error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.1994). Moreover, we may presume that the jury will obey the trial court’s instructions to disregard. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987). A trial court errs by denying a motion for mistrial if the improper argument is extreme or injects new and harmful facts into the record. Wilkerson, 881 S.W.2d at 327. Officer Green testified at trial that “we recycle our tapes.” Although he does not state that this is standard practice, by choosing to say “we,” the officer implies that all police officers recycle their tapes. We disagree, therefore, that the State’s attorney’s argument was extreme or injected new and harmful facts into the record. See id. Accordingly, we conclude that the trial court’s instruction to the jury to disregard the prosecutor’s allegedly improper jury argument cured any possible harm from the statement. See id.

We overrule appellant’s fifth point of error.

Conclusion

We affirm the judgment of the trial court.

      . Officer Green explained that it would be important to know that a suspect had a preexisting ankle injury because the officer would document the injury and instruct the person to stand on the uninjured foot during the performance of the field-sobriety tests. Although Officer Green acknowledged that a "bad ankle” could possibly affect physical field-sobriety tests, depending on the severity of the injury, the record shows that appellant stood on his left leg and raised his right leg with the "bad ankle.” Accordingly, the jury could have reasonably believed that any injury to that ankle would have been irrelevant to that test.

      . Attorney for appellant: Did you learn in your training that very few, a very small num-her of people can hold their foot up for thirty seconds if they’re intoxicated?
      Officer Green: They’re likely to drop their foot when they’re intoxicated, yes, sir.

      Attorney for appellant: Sir, did you learn in your training that very few people can hold their foot up for thirty seconds?
      Officer Green: It’s common for intoxicated people to drop their foot, yes, sir.
      Attorney for appellant: Did you understand my question?
      Officer Green: Yes, sir.
      Attorney for appellant: Is it true that your training manual says that very few people can hold their foot up for thirty seconds?
      Officer Green: I don't remember that exact quote but something along that, yes, sir.

      . During cross-examination, appellant's attorney questioned Officer Green as follows:
      Attorney for appellant: And you do not know if how he performed the night that you arrested him was exactly how he would perform on any occasion?
      Officer Green: No, sir, I have no prior contact with him.
      Attorney for appellant: So you don’t know how he performed was just him being normal, do you?
      Officer Green: I don't know if it was him being normal or him being intoxicated.
      Attorney for appellant: Could be either? Is that what you are saying, it could be either?
      Officer Green: If the injuries-—
      Attorney for appellant: My question was, could it be either?
      Officer Green: I disagree with that.

      . Appellant was instructed to stand with his feet together, arms to his side, and was told to tilt his head back, close his eyes and estimate 30 seconds.

      . Appellant was instructed to tilt his head, keep his arms to his side, elevate one foot six inches off the ground, look down at the foot, and count out loud by one thousands for 30 seconds.

      .Appellant was instructed to put his left foot on the painted line of the roadway, to put his right foot directly in front of it, to take nine heel-to-toe steps, make a turn making a series of small steps, and walk nine heel-to-toe steps back down the same line. Appellant was also told to keep his arms to his side and look at his feet as he counted each step out loud.

      . Appellant objected only once as the prosecutor filled in the form pursuant to the officer's testimony. When the prosecutor asked Officer Green how he indicated appellant's fair to slurred speech on the offense report, appellant objected on hearsay grounds and argued that Officer Green was taking the answer “right off the report.” The court sus-tamed appellant's objection, granted appellant’s motion to strike the officer’s answer, but denied appellant’s motion to strike Exhibit four. This objection was the only objection that appellant offered until the officer concluded his responses to the questions that the prosecutor drew from Exhibit four.

      . Even if we had determined that the trial court erroneously admitted the chart, any error would have been harmless. As the Beaumont Court of Appeals has concluded, when a witness testifies about the contents of a report, as here, any error in admitting an offense report into evidence is not reversible. Clark v. State, 704 S.W.2d 561, 565 (Tex.App.Beaumont 1986, no pet.). Because the contents of Exhibit four were cumulative of testimony by Officer Green to which appellant did not object, any error by the trial court in admitting State's Exhibit four as demonstrative evidence was harmless.

      . "NHTSA” stands for the National Highway Traffic and Safety Administration.