author: JOHN S. ANDERSON, Justice. LESLIE BROCK YATES, Justice,

text:
    Donald WADE, Appellant v. The STATE of Texas, Appellee.
    No. 14-04-00140-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 19, 2005.

      Rosa Alexander Eliades, Houston, for appellants.
    Shirley Cornelius, Houston, for appel-lees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.

      . The cocaine recovered from the motel room weighed approximately two grams.

   OPINION

JOHN S. ANDERSON, Justice.

A jury convicted appellant of the first degree felony offense of possession of a controlled substance weighing more than four grams and less than two hundred grams. The jury found two enhancement paragraphs to be true and assessed punishment at confinement for 45 years in the Texas Department of Criminal Justice, Institutional Division. Appellant asserts the following four points of error on appeal: (1) the trial court erred in overruling his motion to suppress because Suzette Sause-da did not have authority to consent to the officers’ entry into appellant’s hotel room; (2) the trial court erred in refusing to answer the jury’s question asking whether it should continue deliberating on appellant’s detention if it did not find the State proved consent; (3) the trial court erred in not instructing the jury in the jury charge that it did not have to deliberate on the legality of appellant’s detention if it found there was no consent to enter the hotel room; and (4) the trial court erred in overruling appellant’s motion for new trial asserting ineffective assistance of counsel based on trial counsel’s failure to call a witness. We affirm.

FACTUAL BACKGROUND

Appellant does not challenge the legal or factual sufficiency of the evidence to support his conviction. A brief recitation of the facts, however, will place the points of error in proper perspective.

On July 2, 2003, while on duty, Officer James Saveli stopped a car for traffic violations. The male driver of the car was arrested for possession of cocaine. The female passenger in the car told Officer Saveli they had purchased the cocaine from a man at the Southwind Motel, and she told him she could take him to where the cocaine could be found. When they arrived at the motel, the female pointed Officer Saveli to room 108 and told him a black man, nicknamed “Reverend,” was selling cocaine out of that room. Officer Saveli knocked on the door to room 108, and Suzette Sauseda answered the door.

The testimony is contested as to whether Sauseda consented to the officers’ entry into the motel room. According to Officer Saveli, Sauseda told him the Reverend’s name is Donald Wade, the appellant, and that he was not there. Officer Saveli asked Sauseda if he and the other officers could come in and take a look around, and Sauseda invited the officers in to take a look around the room. While Officer Sa-veli was looking around the room for appellant, he saw contraband in the room, all over the place. Sauseda told Officer Sa-veli appellant had borrowed her van but did not tell her where he was going. Officer Saveli then went outside and waited for appellant to return. Sauseda testified she did not invite the officers into the room to search. According to Sauseda, the officers tricked her into opening the door after waking her up and rushed in with guns drawn.

Appellant drove into the parking lot of the motel in Sauseda’s van about twenty minutes later. Sauseda told the officers, “That’s my van. That’s him.” All of the officers were in uniform. Officer Saveli approached the van along with the other officers. When appellant became aware of the officers’ presence, Officer Saveli saw appellant immediately reach down towards his right side in the van, towards the floorboard, look behind the seat, and then stare at them. Based on appellant’s conduct, Officer Saveli thought appellant may have been hiding or retrieving a weapon; Officer Saveli testified that weapons are commonly found with narcotics. Another officer went around to the driver’s side of the van and made contact with appellant. Officer Saveli continued to make a sweep of the van to make sure there were no other weapons or occupants in the vehicle, and no weapons or contraband were found inside the van.

Once appellant got out of the van, an officer patted appellant down to make sime he did not have any weapons. During the pat-down, the officer discovered two medicine bottles in appellant’s pocket. The bottles contained several pieces of crack cocaine weighing approximately five grams.

DISCUSSION

I. Sauseda’s Consent

Appellant argues the cocaine discovered during the warrantless search of his motel room was illegally obtained and should have been suppressed because Suzette Sauseda did not have authority to consent to the officers’ search of appellant’s motel room. The State counters Sauseda’s consent was valid, and the evidence obtained as a result of the search was admissible. Additionally, the State asserts that even without consideration of the evidence recovered from the motel room, the officers were justified in temporarily detaining appellant because they had a reasonable suspicion appellant had been engaged in illegal conduct, based on events independent of the search.

The record shows appellant has failed to preserve this argument for appellate review. Appellant’s motion to suppress is a generic form motion in which appellant sought to suppress and exclude from evidence “[a]ny items seized as a result of [his] arrest; and any other item or information obtained as the result of the arrest and/or search of [appellant] by agents of the State of Texas, upon the grounds that his arrest was without probable cause and that the search and seizure was unreasonable and therefore, in violation of [the United States and Texas Constitutions].” Appellant further alleged in the motion there was no probable cause to arrest or detain him, arguing,

The search was not conducted with the consent or permission of [appellant]. [Appellant] shows that this arrest and search was administered without a warrant. [Appellant] was not competent to understand his legal rights and could not have voluntarily consented to any search or questioning by any police officer or his agent.

Appellant did not argue in his motion to suppress that Sauseda lacked authority to consent to the search of his motel room. Additionally, appellant made no argument before the trial court regarding Sauseda’s consent to the officers’ search of the motel room.

The hearing on the motion to suppress consists solely of witness testimony and no argument. The hearing took place over the course of two days. On January 7, 2004, the State introduced its evidence on the motion to suppress and rested. The trial court continued the hearing until February 3, 2004, to ensure the presence of defense witnesses, and, on February 3, the defense presented the testimony of five witnesses, including appellant. The trial court carried the motion to suppress with the trial of the case. After the first day of trial, the trial court orally denied the motion to suppress.

Texas Rule of Appellate Procedure 33.1 provides that, in- general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. Tex.R.App. P. 33.1(a); Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim.App.2004) (holding prosecutorial vindictiveness claim not preserved for appellate review because appellant never presented claim to trial court). “ ‘Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).’ ” Id. (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004)). “[I]t violates ‘ordinary notions of procedural default’ for a Court of Appeals to reverse a trial court’s decision on a legal theory not presented to the trial court by the complaining party.” Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002) (quoting State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Crim.App.1998)). This rule is based on the notions that a trial court’s decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record. Id.

On appeal, appellant’s first point of error is the following: “The trial court erred in overruling the motion to suppress when [Sauseda] did not have authority to consent to the officers’ entry into [appellant’s] hotel room.” Appellant’s complaint on appeal concerning the motion to suppress does not comport with his objections raised in the trial court. Appellant did not challenge Sauseda’s authority to consent to the search of the motel room in the trial court. Thus, there is nothing for us to review, and this argument, presented for the first time on appeal, is waived.

We overrule appellant’s first point of error.

II. Jury Instructions

Appellant’s second and third points of error focus on the trial court’s instructions to the jury. Point of error number two argues the trial court erred in refusing to answer the jury’s question asking whether it was to continue deliberating on the detention if it did not find the State proved consent. Point of error number three argues the trial court erred in not instructing the jury in the jury charge that it did not have to deliberate on the legality of the detention unless it found there was consent to enter the motel room.

Article 38.28 of the Texas Code of Criminal Procedure provides the following:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code CRiM. PROC. Ann. art. 38.23(a) (Vernon 2005). Here, the jury charge included article 38.23 instructions concerning (1) whether Officer Saveli obtained consent to enter the motel room from a person with actual or apparent authority to do so, Suzette Sauseda, and (2) whether Officer Saveli possessed specific, articulable facts, which, along with any rational inferences from those facts, lead him to conclude that appellant was, had been, or would soon be engaged in criminal activity, justifying his detention of appellant.

In his third point of error, appellant argues the trial court erred in not giving the jury sufficient instruction to apply the law to its factual conclusions regarding the legality of the search of the motel room. He further contends the charge is misleading because the charge should have explained to the jury that it was to consider the legality of appellant’s detention only if it found consent. Appellant did not object to the article 38.23 instructions in the charge.

The State asserts appellant’s complaints are barred by the invited error doctrine. Additionally, the State contends the entry into and results of the search of the motel room are not facts essential to a determination of whether the police had specific and articulable facts justifying a temporary detention. The State argues the essential facts supporting appellant’s temporary detention were undisputed: (1) the officers conducted a traffic stop earlier in the evening and received rehable, specific information from a passenger in the stopped vehicle concerning appellant selling cocaine from a certain location; (2) the informant accompanied the officers to the motel and pointed out the motel room where she had previously purchased cocaine from a black male who went by the name of Reverend; and (3) the officers corroborated aspects of the informant’s information, specifically that a black male whom others referred to as Reverend resided in the motel room identified by the informant and that the Reverend sold cocaine. The State further argues appellant’s furtive gestures inside the van, along with the officer’s past experiences linking guns to drugs, provided the officers with specific and articulable facts that reasonably led them to conclude appellant might possess a weapon, thus entitling them to conduct a pat-down search for their safety, during which the officers discovered two pill bottles containing cocaine. Based on these facts, the State argues the investigating officers had reasonable suspicion, based upon events independent of the motel room search, that appellant had been engaged in criminal activity, sufficient to justify appellant’s temporary detention. We agree with the State’s arguments.

First, appellant has failed to present us with a record reflecting which party requested the instruction at issue. Article 38.23 provides that a jury is to be instructed to resolve factual disputes over whether evidence was illegally obtained and, therefore, inadmissible. Tex.Code CRim. PROC. Ann. art. 38.23(a); Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986). Because it is possible appellant requested the instruction, no error is presented. See Ortiz v. State, 144 S.W.3d 225, 230 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). When a defendant requests a charge, and the court submits it, he cannot complain of that charge on appeal. Even if the charge is later found to be erroneous, the accused cannot first invite error and then complain about it on appeal. Id. Thus, on this basis alone, the record does not affirmatively demonstrate error requiring reversal.

Additionally, the record supports the trial court’s submission of two article 38.23 instructions to the jury; one concerning the issue of whether the officers obtained consent to enter the motel room, and the other concerning whether appellant’s detention was legal. Appellant’s asserted construction of the charge ignores the entirety of the court’s instruction and the evidence introduced at trial. The evidence showed the legality of appellant’s detention did not hinge upon whether Officer Saveli first obtained valid consent to search the motel room; the legality of appellant’s detention was a separate issue for the jury to determine apart from consent. Therefore, it was unnecessary for the trial court to give additional instructions to the jury instructing the jury that it did not have to deliberate on the legality of the detention unless it found there was consent to enter the hotel room. Accordingly, we overrule appellant’s third point of error.

Appellant’s second point is related to his third point. Appellant’s second point of error stems from the trial court’s responses to two jury notes submitted by the jury foreman to the court during the jury’s deliberation on guilt or innocence. Both jury notes asked the trial court whether the jury should continue deliberating on the legality of appellant’s detention if the jury did not find the State proved consent. The trial court responded to both notes by referring the jury to the court’s charge and instructing the jury to continue its deliberations. Appellant did not object to the court’s responses to the jury’s notes.

Article 36.27 requires the court to answer communications of the jury and give additional instructions upon questions of law when the request is proper. Tex. Code CRiM. Pkoc. Ann. art. 36.27 (Vernon 1981); Gamblin v. State, 476 S.W.2d 18, 20 (Tex.Crim.App.1972). If the request is not proper, the court should inform the jury that their request is not proper by referring to the court’s charge. Id. It is assumed that a jury will follow the instructions given, and a judgment will not be reversed without evidence the jury was actually confused by the charge. Williams v. State, 987 S.W.2d 479, 490 (Tex.Crim.App.1996).

As discussed above in our disposition of point three, the trial court did not err by not instructing the jury it did not have to deliberate on the detention if it failed to find the State proved consent. Because no such instruction was requested or required, the trial court did not err in referring the jury to the court’s charge. See Gilderbloom v. State, 160 Tex.Crim. 471, 475, 272 S.W.2d 106, 109 (1954). Accordingly, we overrule appellant’s second point of error.

III. Ineffective Assistance of Counsel

In his fourth point of error, appellant asserts he was denied effective assistance of counsel because his attorney failed to call a material witness, Saconda Anderson, who witnessed the police officer’s entry into appellant’s hotel room. In his motion for new trial, appellant alleged counsel was ineffective for failing to call six witnesses, including Anderson, during the guilt/innocence phase of trial. The trial court conducted a hearing by affidavits on appellant’s motion for new trial. Appellant’s and Anderson’s affidavits were admitted into evidence during the hearing.

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) (citing Strickland). Under Strickland, appellant must prove (1) his trial counsel’s representation was deficient, and (2) his trial counsel’s deficient performance was so serious that it prejudiced his defense. 466 U.S. at 687, 104 S.Ct. 2052; Bone, 77 S.W.3d at 833. To establish both prongs, appellant must prove by a preponderance of the evidence that counsel’s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different. Id. Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998). The alleged ineffectiveness must be firmly founded in the record. Bone, 77 S.W.3d at 835. If appellant fails to satisfy either prong of the test, we do not need to consider the remaining prong. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Judicial scrutiny of counsel’s performance must be highly deferential, and we indulge a strong presumption that counsel was effective. Id. at 689, 104 S.Ct. 2052; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). We presume counsel’s actions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). Appellant must overcome this presumption by illustrating why trial counsel did what he did. Belcher v. State, 93 S.W.3d 593, 595 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d). When evaluating an allegation of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

A reviewing court should not second guess trial counsel’s strategy in hindsight; thus, an affidavit supporting a motion for new trial can be critical to the success of a claim for ineffective assistance. Storr v. State, 126 S.W.3d 647, 651 (Tex.App.-Houston [14th Dist.] 2004, pet. ref d). In the absence of a record explaining trial counsel’s actions, a reviewing court most likely cannot conclude trial counsel’s performance fell below an objective standard of reasonableness unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001).

A claim of ineffective assistance of counsel based on counsel’s failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have ben-efitted from their testimony. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.Crim.App.1986); King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983). Without evidence to the contrary, we must presume appellant’s counsel made the decision not to call these potential witnesses in the exercise of her reasonable professional judgment. See In re J.F., Jr., 948 S.W.2d 807, 812-13 (Tex.App.-San Antonio 1997, no pet.).

At the motion for new trial hearing, appellant submitted an affidavit in which he testifies that he asked [his] lawyer to talk to several witnesses who would have proved that the police conducted an illegal search of the hotel room, [his] vehicle and [himself], and that [he] was innocent of the crime. [He] gave [counsel] the name and number or address when [he] had the information. These witnesses would have shown the state’s witnesses’ testimony were [sic] incorrect and that [he] was not guilty as the police testified.

Appellant further states he provided counsel with Anderson’s name as a witness. However, appellant does not state in the affidavit when he provided counsel with this information or whether Anderson was available to testify at trial.

Anderson states in her affidavit she was present at the Southwind Motel the night of appellant’s arrest. She saw the police arrive and go to a room near where she was staying, and she witnessed five police officers at the door. One officer knocked but did not identify himself as a policeman, and the police were hidden from the room’s -window. Anderson further states in her affidavit,

I started watching and saw that the minute the door barely opened, they rushed into the room. It was not even a second after the door cracked open. .... I could not see what happened after they entered. The next thing I observed was [appellant] arrive in a light colored van and I saw about six or seven police off[icers] immediately rush the vehicle with their guns drawn. One black officer opened the driver’s side door and he had a gun in one hand, and with the other, he pulled out the defendant from the van. Once he had him out, he slammed him against the van and the other officers joined him and they hit him and kicked him on the ground and finally pulled him up, and he was barely standing and they placed him in a chair. About five minutes later, the ambulance eventually arrived and took [appellant],

Anderson does not state in her affidavit that she would have been available to testify at trial.

Besides the affidavits, the only other reference in the record to potential witnesses for the defense is a statement made by appellant’s counsel, after the State rested its case, informing the trial court that at 4:55 p.m. that afternoon appellant had given him the names of four or five witnesses to subpoena by the next day in addition to some unnamed pai'amedics. Counsel told the court he would attempt to contact some of these individuals that afternoon. The trial court told appellant’s counsel anything filed this late would be untimely and any witnesses who want to testify should be there by 10:15 a.m. the following morning.

Based on the foregoing, there is no indication in the record appellant provided counsel with Anderson’s name prior to the afternoon preceding the last day of trial. Additionally, Anderson does not state in her affidavit that she was available to testify on behalf of appellant at trial. It is apparent from the record that appellant’s counsel conducted a pre-trial investigation of the facts as she called other fact witnesses to testify on appellant’s behalf at the motion to suppress hearing and at trial. The record contains no evidence of the reasoning behind appellant’s trial counsel’s actions in not calling Anderson as a witness. Appellant did not submit an affidavit from trial counsel on this issue, and appellant does not allege trial counsel refused to provide an affidavit. Under these circumstances, we cannot conclude counsel’s performance was deficient. See Jackson, 877 S.W.2d at 771-72; see also Thompson, 9 S.W.3d at 814 (holding when record provides no explanation as to the motivation behind trial counsel’s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). When confronted with a silent record, an appellate court is not required to speculate on the reasons behind trial counsel’s actions. Jackson, 877 S.W.2d at 771. Here, the record is silent as to whether Anderson was available to testify at trial and counsel’s strategy in not calling Anderson as a witness. Therefore, counsel’s alleged ineffectiveness is not firmly established in the record.

Considering the totality of the representation, we find appellant’s counsel’s representation was not deficient and did not fall below an objective standard of reasonableness. Additionally, appellant failed to meet his burden to prove that any deficient performance prejudiced his defense. Accordingly, we overrule appellant’s fourth point of error.

We affirm the judgment of the trial court.

YATES, J., concurring.

LESLIE BROCK YATES, Justice,

concurring.

In his first issue, appellant complains that the officers did not have proper consent from Sauseda to search his motel room, under either an actual or apparent authority theory. The majority does not address this point, concluding it has not been preserved for appeal. I believe this argument was adequately preserved and is thus properly before this court. However, because I conclude that the search was valid based on Sauseda’s apparent authority to consent to the search of appellant’s motel room, I concur.

The Court of Criminal Appeals has long held that though a party generally must make a specific objection to preserve error for appeal, “where the grounds of the objection are obvious to the court or the opposing counsel, the error will not be waived.” Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex.Crim.App.1988). Appellant’s written motion to suppress, although very general and brief, did specifically raise the issue of his consent, and the issue of Sauseda’s actual or apparent authority to consent was fully litigated at the suppression hearing. Six of the seven witnesses at the hearing gave testimony bearing directly on Sauseda’s actual or apparent authority to consent to search appellant’s motel room. Though the parties did not make any arguments at the suppression hearing, the testimony developed at the hearing clearly shows that both sides considered the issue of Sauseda’s consent to be a central part of appellant’s motion to suppress. Because the issue of Sauseda’s consent was actually litigated at the suppression hearing, I conclude that appellant has adequately preserved this issue for review. See Gallups v. State, 151 S.W.3d 196, 197-98 & n. 1 (Tex.Crim.App.2004) (finding that the issue of consent was not waived because, though not included in defendant’s written motion to suppress, consent “was the main issue litigated at the suppression hearing,” noting that “we may ... look to the issue actually litigated at a suppression hearing to determine what issues and claims were preserved”).

We review a trial court’s ruling on a motion to suppress for an abuse of discretion and afford almost total deference to a trial court’s findings of historical fact, as long as they are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). A warrantless search of a residence does not violate the Fourth Amendment if law enforcement officers first obtain the consent of a third party who possesses common authority over the premises to be searched. United States v. Mattock 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). If consent was not obtained from someone with actual authority to consent to a search, a search may nevertheless be proper if the person giving consent had apparent authority. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

I believe the record is sufficient to support a finding that Sauseda had apparent authority to consent to the search of appellant’s motel room. One of the officers testified that after Sauseda answered the door and said appellant was not there, he asked if Sauseda was staying in the room. When she said yes, the officer asked if he could search the room, and Sauseda again said yes. The officers did not know until later that the room was registered only to appellant, and though Sauseda denied giving consent, the trial court was entitled to believe the officer’s testimony. Officers are not allowed to proceed without inquiry when consent is given in ambiguous circumstances. See Whisenhunt v. State, 122 S.W.3d 295, 299 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Riordan v. State, 905 S.W.2d 765, 771 (Tex.App.-Austin 1995, no pet.). However, based on the officer’s testimony, the circumstances were not ambiguous at the time consent was given. Sauseda said she was staying in the room and gave her permission to search. That is sufficient evidence to support a finding of apparent authority in these circumstances. See Davis v. State, 93 S.W.3d 664, 668 (Tex.App.-Texarkana 2002, pet. ref'd) (affirming denial of motion to suppress based on apparent authority from consent of woman who told officers she lived in defendant’s house); Wilson v. State, No. 04-02-00805-CR, 2004 WL 624541, at *3 (Tex.App.-San Antonio Mar. 31, 2004, no pet.) (not designated for publication) (affirming denial of motion to suppress evidence seized from defendant’s vehicle after third party, who was in possession of vehicle, said he was the owner and gave permission to search); Guzman v. State, No. 14-98-01449-CR, 2001 WL 699545, at *3 (Tex.App.-Houston [14th Dist.] June 21, 2001, pet. ref'd) (not designated for publication) (“[E]ven if the vehicle did belong to someone else, Rita [Guzman]’s claim of ownership, together with the fact that the Guzman family was in possession of the vehicle when the officers stopped them, gave the officers reason to believe she had authority to consent to the search.”); Brown v. State, No. 14-95-01237-CR, 1998 WL 418758, at *5 (Tex.App.-Houston [14th Dist.] July 23, 1998, no pet.) (not designated for publication) (‘We believe it is reasonable for the officers to assume that when they arrive at a residence, awaken an occupant, and obtain his consent to search the house, he is acting with apparent authority to consent.”).

Because I believe appellant has adequately preserved his complaint regarding Sauseda’s consent but find that complaint to be without merit, I concur.

      . Appellant argues Anderson’s testimony would have "tipped the scales” in appellant’s favor due to the jury’s close examination of the suppression issue. Having determined appellant's detention did not hinge on whether or not Officer Saveli had consent to search the motel room, Anderson’s testimony concerning the manner in which the officers entered the hotel room is not dispositive of the admissibility of the cocaine appellant was charged with possessing.


source: Caselaw Access Project

author: Justice CASTILLO.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Eugene X. MERCIER, Appellee.
    No. 13-02-491-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 19, 2005.
    Rehearing En Banc and Rehearing Overruled June 23, 2005.

      Amy Howell Alaniz, Asst. Dist. Atty., Rene A. Guerra, Criminal Dist. Atty., Ed-inburg, for appellant.
    Joseph A. Connors, III, McAllen, for appellee.
    Before Justices HINOJOSA, YÁÑEZ and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

The State appeals from an order of the district court granting a motion for new trial, entering an acquittal, and entering conditional orders pendent on future appeals. See Tex.Code CRIM. Peoc. Ann. art. 44.01(a)(2), (8) (Vernon Supp.2004-05). The underlying offense is conspiracy to commit barratry. We reverse the trial court’s order and remand.

I. BACKGROUND

The trial court granted appellee Eugene X. Mercier’s motion for new trial after a jury returned a guilty verdict for criminal conspiracy and acquitted him on all other counts. By four issues, appellant, the State of Texas, asserts that the trial court erred in: (1) entering an order containing conditional post-appeal dispositions; (2) finding the evidence legally insufficient to sustain the conviction; (3) conditionally dismissing the indictment; and (4) conditionally granting a new trial. By sixteen cross-points, Mercier asserts, in general, lack of jurisdiction, failure to preserve error, insufficiency of the evidence to sustain the conviction, Brady violations, Kyles violations, limitations, and federal constitutional violations and deprivation of rights.

A. Procedural History

The indictment charged Mercier with four counts of barratry and two counts of criminal conspiracy. The State obtained the initial conspiracy indictment in this case on March 21, 2000. Mercier was reindicted on December 19, 2001. Then, on December 21, 2001, after obtaining the second indictment, the State dismissed the first indictment against Mercier. The first indictment alleged two counts of conspiracy to commit barratry under Texas Penal Code section 38.12(a) and (b). See Tex. Pen.Code Ann. § 38.12(a), (b) (Vernon 2003). The second indictment alleged the same two counts. Mercier pleaded not guilty on all counts. The case proceeded to trial in the 332nd district court of Hidal-go County. On April 11, 2002, the trial court denied Mercier’s motion to dismiss which was submitted as an application for writ of habeas corpus based on the statute of limitations. On April 18, 2002, the jury found Mercier guilty of one count of criminal conspiracy. The jury acquitted Mercier on the remaining counts. On May 6, 2002, Mercier moved to continue sentencing to allow more time to discover Brady evidence. The trial court heard Mercier’s motion on May 7, 2002. On May 22, 2002, Mercier moved the court to clarify the prior ruling, and the trial court complied on May 29, 2002. The trial court entered an order on Mercier’s motion to clarify. Mercier filed a second motion to continue sentencing, asserting he required additional time to acquire, listen to, and transcribe, if necessary, audiotapes. The trial court denied the motion on the date of sentencing. On June 14, 2002, the trial court sentenced Mercier to two years in a state jail facility and immediately suspended that sentence for a term of five years’ community supervision. The trial court assessed a $7,500.00 fine. On June 14, 2002, Mercier filed a notice of appeal. On the same day, he filed three post-sentencing motions.

B. Mercier’s Post-Verdict Motions Filed on June 14, 2002

1. Motion for New Trial-Sufficiency of the Evidence

As grounds for his motion for new trial, Mercier asserted that the evidence was legally and factually insufficient to support his conviction. The trial court set the hearing for July 16, 2002.

2.Motion in Airest of Judgment-Statute of Limitations

As grounds for his motion, Mercier asserted the following: (1) under appellate rule 22.2(a), the indictment is subject to an exception on substantive grounds because prosecution was barred by a three-year statute of limitations; (2) he preserved error by filing a pre-trial application for writ of habeas corpus which the trial court denied; and (8) the district court did not have jurisdiction because: (a) the indictment alleged an offense punishable as a misdemeanor, and (b) the offense alleged was a Class B misdemeanor.

3. Motion to Reduce State Jail Felony Punishment to Misdemeanor Punishment

In this motion, Mercier requested punishment for a Class A misdemeanor “after the court’s considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant.”

4. Motion to Set Aside Judgment and For New Sentencing Hearing

Mercier requested that the trial court order a new sentencing hearing because, in general, the suspended sentence is too lengthy.

C. Mercier’s Post-Sentencing Motions Filed on July 9, 2002

1.“First” Motion for New Trial

In this motion, Mercier generally asserted the evidence at trial was insufficient to sustain his conviction. In particular, Mer-cier requested a new trial because: (1) he did not receive a fair trial under the state and federal constitutions; (2) he was denied due process; (3) the evidence to support the conviction and sentence was legally and factually insufficient; (4) he was denied due course of law; (5) the verdict was contrary to the law; (6) the trial court misdirected the jury about the law; (7) the State and the trial court committed reversible errors at pre-trial and during trial; (8) the State did not produce Brady material; and (9) the indictment failed to allege a crime committed within the three-years limitations period and, thus, prosecution was barred by limitations.

2.“First” Motion in Arrest of Judgment

Mercier again asserted that: (1) prosecution was barred by limitations; and (2) the trial court lacked jurisdiction over a misdemeanor offense.

3.First Amended Motion for New Trial Filed on July 15, 2002

In this motion, Mercier incorporated his July 9 motion for new trial. As grounds, he asserted: (1) the trial court was re-qmred to order an acquittal because the State’s expert witness, Scott Rothenberg, testified as to the substantive barratry count; (2) the State withheld evidence tending to establish his innocence; and (3) the State knowingly presented false testimony at trial.

4. Brady Motion Filed on July 29, 2002

Mercier alleged that the State withheld additional audiotapes. By order dated July 29, 2002, the trial court granted the motion and ordered post-trial discovery of the audiotapes.

D. The Motion for New Trial Order

After evidentiary hearings on July 18 and 19, 2002, the trial court unconditionally granted the motion for new trial expressly on legal insufficiency grounds. The order acquitted Mercier. The order purported to grant a conditional dismissal of the indictment in the event of a future possible reversal by this Court of the motion for new trial. Finally, the order sought to grant a conditional new trial in the event of a second future possible reversal by this Court of the conditional dismissal of the indictment. The State’s appeal ensued.

II. CONDITIONAL ORDERS GRANTING FUTURE RELIEF

In its first issue, the State argues that the portions of the August 22, 2002 order purporting to conditionally dismiss the indictment in the event of a reversal on appeal and to conditionally grant a new trial in the event of a second reversal on appeal are void. The State argues that the scope of our review is limited to whether the evidence was legally sufficient to support the conviction, contained in the non-conditional part of the trial court’s order. Mercier responds in his first cross-point that the State has not invoked our jurisdiction because the notice of appeal is insufficient.

A. Appellate Jurisdiction

Jurisdiction is fundamental and cannot be ignored. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996) (en banc). Our jurisdiction must be legally invoked. Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App.1964). If not legally invoked, our power to act is as absent as if it did not exist. Id. When we lack jurisdiction to act, we have no power to dispose of the purported appeal in any manner other than dismissal for lack of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996) (en banc).

This appeal is from an appeal-able order. See Tex.R.App. P. 25.2(a)(1). The State timely filed a notice of appeal. Tex.Code Ceim. Proc. Ann. art. 44.01(d) (Vernon Supp.2004-05). A timely-filed notice of appeal vests a court of appeals with jurisdiction over a case. Lopez v. State, 18 S.W.3d 637, 639 (Tex.Crim.App.2000); see Olivo, 918 S.W.2d at 522. Notice of appeal is sufficient if it shows the party’s desire to appeal from the judgment or other appeal-able order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01. See Tex. R.App. P. 25.2(c)(2). We have reviewed the notice of appeal and find it is sufficient. The State appeals a trial court order granting a new trial. The order also modifies a judgment. We have jurisdiction. See Tex.Code CRiM. Peoc. Ann. art. 44.01(a)(2), (3) (Vernon Supp.2004-05); see also State v. Gutierrez, 129 S.W.3d 113, 115 (Tex.Crim.App.2004). We overrule Mercier’s first cross-point.

B. Relevant District Court Jurisdiction

The trial court granted Mercier’s amended motion for new trial. The trial court’s order conditionally dismissed the indictment in the event of a reversal by this Court and conditionally granted a new trial in the event of a second reversal by this Court. The State appeals both conditional orders in its third and fourth issues. The State may appeal an order that dismisses the indictment. Tex.Code CRiM. Peoc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004-05). By his fifth and sixth cross points, Mercier argues that the orders granting a dismissal and a new trial in the event of future appeals were proper.

In this State a district judge has jurisdiction over criminal matters conferred by virtue of the Texas Constitution. Tex. Const, art. V, § 5; State ex rel. Holmes v. Denson, 671 S.W.2d 896, 898 (Tex.Crim.App.1984) (en banc) (orig. proceeding) (citing Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex.Crim.App.1980)). The attachment of jurisdiction in the district court conveys upon that court the power to determine all essential questions “and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted district courts under established principles of law.” Denson, 671 S.W.2d at 898. A court’s having jurisdiction “embraces everything in the case and every question arising which can be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted.” Id.

The filing of a notice of appeal simply invokes appellate jurisdiction. State v. Gutierrez, 143 S.W.3d 829, 831 (Tex.App.-Corpus Christi 2004, no pet.) (citing Hall v. State, 698 S.W.2d 150, 152 (Tex.Crim.App.1985) (en banc)). The notice of appeal does not divest the trial court of jurisdiction to hear, consider, and rule on a timely filed motion for new trial. Id. The filing of the appellate record, not the notice of appeal, severs the trial court’s jurisdiction to adjudicate the case. Tex. R.App. P. 25.2(g); see Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App.1995) (“Once the trial record has been filed with the Court of Appeals or this Court, the trial court no longer has jurisdiction to adjudicate the case.”). Texas Rule of Appellate Procedure 40(b)(2) provides that in the appeal of a criminal case, when the record has been filed in the appellate court, all further proceedings in the trial court, except as provided by law or by these rules, shall be suspended and arrested until the mandate of the appellate court is received by the trial court. Tex.R.App. P. 40(b)(2); see Green, 906 S.W.2d at 939. The trial court cannot regain jurisdiction unless and until the court of appeals returns the case to that court.- Lopez v. State, 18 S.W.3d 637, 639 (Tex.Crim.App.2000). It is axiomatic that where there is no jurisdiction, the power of the court to act is as absent as if it did not exist and any order entered by a court having no jurisdiction is void. See Green, 906 S.W.2d at 939 (citing Dial, 596 S.W.2d at 528).

We apply these principles to the State’s first, third, and fourth issues, in the context of the trial court’s plenary jurisdiction during the motion for new trial proceedings.

C. Trial Court’s Authority to Grant an Amended Motion for New Trial

In criminal cases, there is no common law right to a new trial. Banks v. State, 79 Tex.Crim. 508, 186 S.W. 840, 841 (1916). The right is purely statutory. Id.; see Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App.1987) (en banc); see also Tex.R.App. P. 21.2. When the State appeals from an order granting a new trial, the proper standard of appellate review is abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993) (en banc). The trial court is granted wide latitude in exercising the decision to grant or deny a motion for new trial, and in the absence of an abuse of discretion, an appellate court should not reverse. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995).

The time for filing motions for new trial and amended motions for new trial in criminal cases is presently governed by Texas Rule of Appellate Procedure 21.4. See Tex.R.App. P. 21.4. To construe a rule of appellate procedure, we apply the rules of statutory construction. See State v. Hardy, 963 S.W.2d 516, 519 (Tex.Crim.App.1997) (en banc). Under ordinary statutory construction, we apply the plain meaning of the words contained in the rule unless such application would lead to an absurd result. Id. The rule does not authorize an amendment of a motion after the thirty days have expired. Accordingly, no amended motion for new trial may be filed after the thirty-day period, even with leave of court. Id.; see also Drew, 743 S.W.2d at 222-23 (construing former rule).

In this case, Mercier amended his motion for new trial twice. The trial court expressly considered the documents filed on June 14, 2002, July 9, and July 15, 2002. The motion for new trial and one or more amended motions were timely filed. See Tex.R.App. P. 21.4. The motions were properly before the trial court. The trial court was within its statutory authority to grant relief based on the record before it. We turn to the State’s argument that the trial court had no authority to grant conditional relief.

D. Future Relief

Granting a motion for new trial restores the case to its position before the former trial, including, at any party’s option, arraignment or pretrial proceedings initiated by that party. Tex.R.App. P. 21.9. The prior conviction must not be regarded as a presumption of guilt, nor may it be alluded to in the presence of the jury that hears the case on retrial. Id. The granting of a motion for new trial is the equivalent of an acquittal. Rodriguez v. State, 852 S.W.2d 516, 519 (Tex.Crim.App.1993) (en banc) (stating trial court no longer had jurisdiction over case after granting motion for new trial on insufficient evidence ground because granting the motion for new trial was equivalent of acquittal) (citing Moore v. State, 749 S.W.2d 54, 58 (Tex.Crim.App.1988) (en banc), overruled on other grounds Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex.Crim.App.1998)).

E. Disposition

In this case, the trial court granted the motion on legal sufficiency grounds and entered an acquittal. When a trial court grants a motion for new trial based solely on legal insufficiency of the evidence, the only further action permitted by the Double Jeopardy Clause is an entry of a judgment of acquittal. See Smith v. State, 15 S.W.3d 294, 301 n. 3 (Tex.App.Dallas 2000, no pet.); see also Gollihar v. State, 46 S.W.3d 243, 247 n. 4 (Tex.Crim. App.2001). Nothing in rule 21.9 addresses the trial court’s authority or lack of authority to grant relief in the event of future appeals. We conclude that the trial court’s orders granting relief as to future appeals are advisory and of no legal effect. See Tex.R.App. P. 21.9; see Hardy, 963 S.W.2d at 519. We sustain the State’s first issue.

In its third and fourth issues, the State challenges the trial court’s conditional orders. We have already concluded that the trial court’s conditional orders are advisory and of no legal effect. Whether the parties will file further appeals remains hypothetical. Accordingly, we do not express any opinion on the question of the trial court’s orders conditioned on further appeals. We are without authority to render advisory opinions. Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App.1991); Hargrove v. State, 774 S.W.2d 771, 773 (Tex.App.-Corpus Christi 1989, pet. ref'd). Thus, we do not reach the State’s third and fourth issues and Mercier’s fifth and sixth cross-points. See Tex.R.App. P. 47.1

Because the trial court granted relief expressly on grounds of legal insufficiency, we turn to the merits of the State’s second issue. Tex.Code Ceim. PROC. Ann. art. 44.01(2), (3) (Vernon Supp.2004-05). By his second cross-point, Mercier argues that the State failed to preserve error by not contesting all implied findings and conclusions of law supporting the order of acquittal.

III. LEGAL SUFFICIENCY OF THE EVIDENCE

By its second issue, the State argues that the evidence was legally sufficient to sustain the conviction. By his fourth cross-point, Mercier asserts legal insufficiency of the evidence. Because a legal sufficiency challenge, if sustained, results in an acquittal rather than a retrial, we must consider the issue. See Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App.1996) (en banc).

A. Scope and Standard of Review-Motion for New Trial

We review the granting of a motion for new trial under an abuse of discretion standard. See Lewis, 911 S.W.2d at 7. An abuse of discretion occurs when the trial court’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992) (en banc). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (en banc). We may not substitute our judgment for that of the trial court. Cantu, 842 S.W.2d at 682. Instead, we must decide whether the trial court’s decision was arbitrary or unreasonable. Id.; Gonzalez, 855 S.W.2d at 696. The credibility of the witnesses is primarily a determination for the trial court. Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.-Houston [14th Dist.] 1997), ajfd, 982 S.W.2d 419 (Tex.Crim.App.1998). As finder of fact, the trial judge may accept or reject any part or all of the testimony given by State or defense witnesses. Johnson v. State, 571 S.W.2d 170, 173 (Tex. CrimApp. [Panel Op.] 1978); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App.1997) (en banc). Thus, we are authorized to: (1) apply a deferential standard of review to the trial court’s resolution of historical facts; and (2) may rely upon implied findings of fact that are supported by the record to uphold the trial court’s ruling, even when the trial court is not faced with expressly conflicting affidavits or testimony. Charles v. State, 146 S.W.3d 204, 206 (Tex.Crim.App.2004).

Even so, in ruling on a motion for new trial based upon legal insufficiency of the evidence, the trial court must use the same standard of review as that used by appellate courts, as set forth below. See State v. Savage, 905 S.W.2d 272, 274 (Tex.App.-San Antonio 1995), aff'd, 933 S.W.2d 497 (Tex.Crim.App.1996). The trial court must decide, after reviewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. When a motion for new trial challenges the sufficiency of the evidence to support a jury’s finding, the trial court cannot weigh the evidence and judge the credibility of the witnesses. State v. Charlton, 847 S.W.2d 443, 446 (Tex.App.-Houston [1st Dist.] 1993, no pet.). The grant of a new trial on the basis of legally insufficient evidence is equivalent to an acquittal. See Rodriguez v. State, 852 S.W.2d 516, 519 (Tex.Crim.App.1993) (en banc). The defendant ordinarily has the burden of proof on a motion for new trial. See Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995) (en banc). Whether the trial court abused its discretion depends on the facts of each case. See Love v. State, 861 S.W.2d 899, 903 (Tex.Crim.App.1993) (en banc).

B. Standard of Review-Legal Sufficiency of the Evidence

In measuring legal sufficiency in the context of a motion for new trial, the trial court is bound by appellate legal sufficiency standards of review. See Savage, 905 S.W.2d at 274. A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (en banc). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001).

We measure the legal sufficiency of the evidence in this case against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct jury charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar, 46 S.W.3d at 254. Its scope is limited by “the statutory elements of the offense ... as modified by the charging instrument.” Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App.2002) (en banc) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000)).

When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Cherry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Johnson, 23 S.W.3d at 7. We are required to provide a remedy tantamount to an appellate acquittal only when we determine that the evidence is insufficient to support a conviction due to a failure of proof at trial with respect to the guilt or innocence of the defendant. See Fuller, 73 S.W.3d at 253 (citing Burks v. United States, 437 U.S. 1, 15-18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)); see also Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004).

In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. Tex.Code CRiM. PROC. Ann. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex.Crim.App.1992) (en banc); Butts v. State, 835 S.W.2d 147, 151 (Tex.App.-Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Crim.App.1974). It also may accept portions of a witness’s testimony and reject others. Id.; Butts, 835 S.W.2d at 151.

C. General Verdict

When the indictment alleges alternate theories of committing the same offense, it is proper for the jury to be charged in the disjunctive and to return a general verdict of guilty. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991) (en banc); TexCode Crim. PROG. Ann. art. 37.07, § 1(a) (Vernon Supp.2004-05) (verdict must be general). The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992) (en banc); Kitchens, 823 S.W.2d at 258; see Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App.1987) (en banc); Yandell v. State, 46 S.W.3d 357, 363 (Tex.App.-Austin 2001, pet. ref'd).

D. The Hypothetically Correct Jury Charge

1. The Elements of Conspiracy to Commit Barratry

The indictment charged Mereier with barratry and conspiracy to commit barratry. Tex. Pen.Code Ann. § 38.12(a), (b) (Vernon 2008); Tex. Pen.Code Ann. § 15.02(a) (Vernon 2003). The jury was charged on one count of conspiracy. The charge included an instruction on barra-try. By general verdict, the jury convicted Mercier for the offense of conspiracy to commit barratry. The elements of the offense of criminal conspiracy are: (1) a person, (2) with intent that a felony be committed, (3) agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense, and (4) he or one or more of them performs an overt act in pursuance of the agreement. Tex. Pen.Code Ann. § 15.02(a) (Vernon 2003). The elements of the underlying felony offense of barratry are as follows: (1) a person, (2) with intent to obtain an economic benefit, (3) engages in unlawful conduct. Tex. Pen. Code Ann. § 38.12(a) (Vernon 2003). The plain language of this statute demonstrates that the legislature intended to criminalize various forms of solicitation of prospective legal clients by attorneys or their representatives. State v. Mays, 967 S.W.2d 404, 408 (Tex.Crim.App.1998) (en banc).

Thus, a hypothetically correct jury charge would instruct the jury that they could find Mercier guilty of criminal conspiracy if: (1) he, (2) with the intent to obtain an economic benefit, (3) agreed with one or more persons, (4) to pay or give or offer to pay or give a person money or anything of value to solicit employment, and (5) one or more of them committed an overt act. See Tex. Pen.Code Ann. § 38.12(a)(4) (Vernon 2003); see also Lopez v. State, 846 S.W.2d 90, 92-93 (Tex. App.-Corpus Christi 1992, pet. ref'd).

An agreement constituting a conspiracy may be inferred from the acts of the parties. See Tex. Pen.Code Ann. § 15.02(b) (Vernon 2003). The essential element of criminal conspiracy is an agreement to commit a crime. Cuellar v. State, 13 S.W.3d 449, 453 (Tex.App.-Corpus Christi 2000, no pet.) (citing Williams v. State, 646 S.W.2d 221, 222 (Tex.Crim.App.1983)). Because conspirators’ work is often done in secrecy and under cover, direct evidence is not required to support a conviction for criminal conspiracy; circumstantial evidence will suffice. Id.

2. The Statutory Exception

It is an exception to prosecution that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court. Tex. Pen.Code Ann. § 38.12(c) (Vernon 2003). The general rule is that where a penal statute embraces an exception which is part of the statute itself, the State must negate the exception in the indictment. Lopez, 846 S.W.2d at 93.

D. Standards and Scope of Review-The Accomplice Witness Rule

A conviction may not be based on the testimony of an accomplice witness unless the accomplice’s testimony is corroborated by other evidence tending to connect the accused to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002) (citing Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000)). The evidence is insufficient if it proves merely the commission of the offense. Cathey, 992 S.W.2d at 462. It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Id.; Vasquez, 67 S.W.3d at 236; Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997) (en banc). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462; Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988) (en banc).

To determine whether an accomplice’s testimony is sufficiently corroborated, we eliminate from consideration the testimony of the accomplice witness and examine the remaining evidence to ascertain whether there is evidence that tends to connect the accused to the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997) (en banc). We must view the corroborating evidence in the light most favorable to the finding of guilt. Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.).

E. The Evidence

1. Exception to Prosecution

The State’s expert, Scott Rothen-berg, testified that the Texas Disciplinary Rules of Professional Conduct prohibit an attorney to pay a non-attorney for economic benefits where the non-attorney referred cases to the attorney, namely, in exchange for soliciting auto accident victims. According to Rothenberg, the conduct violated rules 7.03(b) and (c) of the Disciplinary Rules. We conclude that the State negated the exception within the statute. See Tex. Pen.Code Ann. § 38.12(c) (Vernon 2003); Lopez, 846 S.W.2d at 93.

2. Accomplice Evidence

The defense argued during the motion for new trial hearing that the State’s witness, Angelica Rhodes, was “not an accomplice witness” and that Charlie Mora was the only accomplice, based on the evidence at trial. The court’s charge instructed the jury that Mora was an accomplice. The court’s charge contained, generally, accomplice instructions. The defense argued that Brady evidence disclosed post-trial showed Rhodes was also an accomplice.

An accomplice is a person who participates in an offense before, during, or after its commission to the extent that the person can be charged with the offense or with a lesser offense. Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App.2002) (en banc) (citing Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim.App.1998) (en banc)). An accomplice acts with the required culpable mental state. See Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004). The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser-included offense. Id.

A person is an accomplice if there is sufficient evidence connecting him or her to the criminal offense as a blameworthy participant. See Blake, 971 S.W.2d at 455. “[T]he test is whether or not there is sufficient evidence in the record to support a charge against” the witness alleged to be an accomplice. Id. To determine whether the witness was an accomplice, we examine the record for evidence of the participation in the crime. See id. Whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status-what matters is the evidence in the record. Id. At trial, Rhodes recanted material testimony she provided to the grand jury. She admitted she lied to the grand jury. Nonetheless, viewed in the light most favorable to the verdict under the Jackson standard of review, the evidence at trial showed that, in September 1997, Rhodes attended a meeting between Mercier and Kent Plambeck in Mercier’s law office. At the time, Rhodes worked at Mercier’s law office as a paralegal. Previously, Rhodes had worked with Plam-beck in his chiropractic office. According to Rhodes, the meeting was called because Mercier needed to make payment on some auto accident personal injury files. Plam-beck and Mercier discussed a plan in which Plambeck would refer clients to Mercier. In exchange, Mercier was to pay one hundred percent of the medical expenses for injured patients Plambeck treated, who were also Mercier’s clients. According to Rhodes, the agreement between Plambeck and Mercier was to obtain clients. Rhodes testified that Plambeck was frustrated that, in general, personal injury attorneys requested a percentage reduction of his bill, and Plambeck wanted full payment in personal injury cases. Rhodes testified that, as part of personal injury practice, a medical narrative report was generated to assist attorneys in the settlement of the claims with insurance companies. The usual fee for a narrative was $200 to $250. Mercier agreed to pay $50 for the report; however, in reality, the fee was payment toward the $500 fee per client charged by a “telemarketer” of clients, Charlie Mora. According to Rhodes, Plambeck would pay the $450 balance of Mora’s fee.

According to Rhodes, the agreement and operation in place was (1) Charlie Mora, a “telemarketer,” would meet persons involved in motor vehicle accidents at a body shop, generally, to provide one of three property damage estimates required by insurance companies; (2) the offer to estimate the cost of repair was to get the person to go to the doctor or an attorney; (3) Mora would provide the potential client the “800 number” to Mercier’s law office, or a cell phone number, or call the office directly and allow the potential client to speak to Rhodes; (3) Rhodes would visit the caller in person and, as Mercier required, ask, “Are you asking for our services ?”; (4) she would have the person execute a contract, intake sheet, and a form confirming the person was asking for the services; (5) she would set up the client’s appointment with Plambeck’s office; (6) Mora’s work yielded ten to twenty new clients daily; and (7) Mercier would pay the $50 out of settlement funds. Rhodes further testified that Mercier’s agreement with Mora to refer clients occurred by telephone but Plambeck and Mercier met with Mora on several occasions. She heard Mercier tell Mora that the body shop should pay him as a representative of the body shop in case of an investigation. Mercier instructed Mora regarding the manner by which to approach potential clients. Mora trained his workers to refer injured persons to Mercier.

Viewed through the prism of the abuse of discretion standard required in the context of a new trial, we conclude that the trial court could have reasonably concluded that Rhodes was an accomplice witness and that conclusion was within the zone of reasonable disagreement. See Blake, 971 S.W.2d at 455; see Cantu, 842 S.W.2d. at 682. Under the accomplice witness rule, Rhodes’ testimony required corroboration. See TexCode Crim. Peoc. Ann. art. 38.14 (Vernon 1979); Vasquez, 67 S.W.3d at 236. Thus, the hypothetically correct jury charge would have instructed the jury that Rhodes, like Mora, was an accomplice witness. Malik, 953 S.W.2d at 240.

Before we review the non-accomplice testimony, we pause to consider Mora’s evidence at trial. Charles Mora testified he formerly owned Accident Care. He had an office at Plambeck’s clinic and at a body shop. He hired contract workers to market for patients. Mora obtained the names of contacts from police reports. His workers contacted persons involved in accidents to tell them they could receive a free consultation at the clinic. Mora testified that Plambeck introduced him to Mer-cier. He met with Mercier and discussed procedures “on how to approach the people on the phone, and how to sign them up as in ... how to get them to the body shop, and how to get them to say that they wanted legal assistance.” In 1997, Plam-beck paid Mora $300 for each patient referred. In turn, Mora paid the worker making the referral $100. In September 1997, after Mora began working out of the body shop, he was paid $500 per person referred. His objective in contacting vehicular accident victims was to “get them to talk to an attorney — so they could go to the doctor so they can get paid.” The attorney, in particular, was Mercier.

Mora further testified on the State’s direct examination:

Q. Whose idea was it for you to go out and give estimates for vehicles?
A. Whose idea was it?
Q. Yes.
A. Dr. Plambeck.
Q. And whose idea was it for you to move to Auto Kolors? Was that your own or Dr. Plambecks?
A. I had an office in three different locations. I had one at the doctor’s, the Body Shop.... It was more convenient for us whichever we were closer to....
Q. [W]hen you were being paid for this $500 per client ... where were the checks coming from?
A. Different locations. I had — I don’t remember the names. I know Dr. Plambeck was paying me.
Q. Okay. Anybody else that was paying you that you remember?
A. No, not necessarily.
Q. When they were paying you, were they making checks payable to you personally or payable to any of your companies?
A. Well, I had different companies.
Q. And what companies did you have?
A. ... Accident Care Services ... Independent Estimates ... CMS Construction Company....

Mora testified that the money paid through these companies was for his referral services. He further testified:

Q. Did he — was Mr. Mercier supposed to pay you for any of the clients that you referred?
A. I don’t know if he was supposed to, I said, the first time. It wasn’t like he was supposed to pay me. It was never meant to be like that ...
Q. Did Mr. Mercier pay you any money for the referrals of the clients?
A. He gave me some money, yes, ma’am.
Q. And how much was that?
A. It was $4,000....

Finally, Mora testified he met with Mer-cier. Mora acknowledged his grand jury testimony that the money from Mercier was for clients referred to Mercier and Mercier was to pay $100 per person referred to him.

Mindful that we must view the corroborating evidence in the light most favorable to the finding of guilt, we turn to the testimony of non-accomplice witnesses. Cantelon, 85 S.W.3d at 461.

3. Non-accomplice Evidence

a. Former Clients

The State called numerous former clients of Mercier. Collectively, the testimony of the witnesses showed: (1) involvement in vehicular accidents; (2) uninvited contact from one or more persons by telephone or at home; (3) within a few days of the accident (a) offering free estimates for property damage, (b) offering free consultations with an attorney, Mercier, (c) offering free initial consultation for injuries through Plambeck’s clinic; (4) signing two documents at Mereier’s law office; (5) employing Mercier but contacting primarily his staff; and (6) settling their personal injury claims. Uniformly, the witnesses testified the visiting individuals told them they obtained names and addresses from police department vehicular accident reports. As we must, we have reviewed all the evidence at trial, whether properly or improperly admitted, in the light most favorable to the verdict. See Moff, 131 S.W.3d at 492. We pause to note some of the former clients’ testimony before the jury.

Araceli Cantu testified she was involved in a vehicular accident on August 11, 1998. Two men and a woman approached her daughter at the hospital while Cantu was there in a coma after the accident. One man was named “Carlos” and the woman was “Angie.” Her family did not call Carlos or Angie to visit the hospital. Her daughter had “accepted” Mercier to handle Cantu’s claim. While recovering in the hospital, Cantu signed two documents admitted in evidence. In one, she acknowledged she requested a free consultation with Mercier’s office. The form continues, “I was referred over to this office by representatives of the body shop or a car rental agency. I never discussed any attorneys with a telemarketer.” After Cantu was released, she was referred to Plambeck’s clinic. She assumed Mercier’s office made the referral. Mercier’s office settled her case.

Omar Garza testified he was involved in a vehicular accident in 1998. Two men visited his home to provide an estimate on his truck, representing they were from a body shop. Garza did not call them. He did not ask them for an attorney. The two men did not provide an estimate. They referred him to Mercier’s office. Once there, he was referred to Plambeck’s clinic. He signed the form admitted in evidence stating, “I request a free consultation with the law office” of Mercier. He signed another document, admitted in evidence stating, “I request a free consultation with the law office of Eugene Mercier. I was referred over to the office by a representative of a body shop or a car rental agency. I never discussed any attorneys with a telemarketer.” Mercier’s office settled his case.

Esmeralda Fuentes testified that she was involved in a car accident in 1998. An adjuster named “Vicente” contacted her home. Once there, he called “Angie” who worked at Mercier’s office. Fuentes already had an attorney. At Angie’s suggestion that the attorney was not reputable, Fuentes completed a release form to release the attorney and hired Mercier. She was referred to Plambeck’s office.

Carlos Garcia testified he was involved in a car accident and, the next day, Rhodes contacted him and identified herself as Mercier’s legal assistant. He did not request the visit. She arrived unexpectedly and had forms that he signed. Garcia went to Mercier’s office and was referred to Plambeck’s clinic. He signed the forms containing the free consultation and referral information. A man named Joe Garcia from a body shop picked up his vehicle for repair but did not repair it-another body shop did. Mercier’s office settled his case.

Alonso De Leon testified that he was involved in a vehicular accident in 1998. A man from a body shop called him the following day and told him he could get his truck fixed without a problem. The caller told him he knew a lawyer who could help De Leon. They met the next day at Mercier’s office. Another man provided “Raul” from Mercier’s office an estimate of the vehicle completed at the office. “Raul” explained he obtained De Leon’s name from the police report. De Leon was referred to Plambeck’s clinic. At “Raul’s” request, De Leon signed the two forms regarding the free consultation and referral information. De Leon’s vehicle was not repaired. His case was settled.

Numerous witnesses testified similarly. Another witness, Stacie Palmer, testified that she managed Plambeck’s accounts in 1998. She recalled writing several checks in payment to Mora and to his wife. Sergeant Israel Pacheco, with the Texas Rangers, testified that he began investigating Mercier and Plambeck in 1998. He testified that Rhodes was arrested for bribing one of the Department of Public Services secretaries in Harlingen by paying the secretary money for copies of accident reports.

2. Former Employees

Raul Ortiz testified he previously worked with Mercier. He knew of one meeting lasting about two hours between Mercier and Plambeck. Rhodes was present at the meeting. Rhodes called Ortiz into the office where the meeting took place because Mercier and Plambeck were in an altercation. When Ortiz entered, he noticed Plambeck looked upset and observed Mercier fixing his tie. Ortiz, like Rhodes,'signed up clients daily. Mora referred some clients directly and others called the firm’s toll-free telephone number. In 1998, most of the referrals were from Mora and many of the firm’s referrals were to Plambeck’s clinic. Ortiz saw Mora visit the law office about twice a week. Ortiz had instructions to further refer Mora’s referrals to Plambeck’s clinic.

Armando Valdez testified he worked for Mora in 1997, telemarketing for clinics at Mora’s business, Accident Care. Valdez described his duties as calling persons involved in auto accidents to ask if they wanted a no-cost check-up at the clinic. Mora made the decision as to whom to call. The insurance of the party at fault would be billed. Eventually, Mora’s business moved to a body shop. There, Valdez contacted persons identified in police accident reports about providing a free estimate for property damage. While at the contact’s home, Valdez would refer them to an attorney if they wanted one. The referrals were mainly to Mercier. Valdez made the call to Mercier’s office, either asking for Rhodes or dialing the toll-free number. Sometimes Valdez provided transportation to the office. Mora made the decision to refer the persons contacted to Mercier. According to Valdez, from “there they would be sent to the clinic and if they needed treatment, we would get paid from the clinic.” The clinic involved was Plambeck’s clinic. Plambeck paid Mora, and Mora paid Valdez by check at the rate of one hundred dollars per person referred when the person visited the clinic three times. Mora kept a list of the persons referred. Valdez referred approximately fifteen persons every two weeks to Mercier’s office.

Carlos Herrera testified he formerly worked for Mora in 1997 at Accident Care. While there, he “telemarketed auto accident victims.” Mora gave him a list and told him to call the persons. Mora obtained accident reports from the police department. Mora paid him $75 per person and then later $100 per person he contacted who received treatment at a clinic. The “doctor” paid Mora. Herrera referred approximately twenty people a month. When the office moved to the body shop, he called persons involved in accidents to provide free property damage estimates. He referred persons to Mercier when they needed assistance securing a rental vehicle.

F. Disposition

The trial court order set aside the jury verdict of guilty, granted Mercier’s motion for new trial, and entered an acquittal based on legal insufficiency of the evidence, a ground squarely before it. We must decide whether the trial court’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu, 842 S.W.2d at 682.

The trial court was present when the witnesses testified and the evidence presented. In material parts, Rhodes’ testimony at trial differed from her testimony before the grand jury, and she admitted she lied during the grand jury proceeding. Similarly, Mora’s testimony was deferential to his grand jury testimony but noncommittal to its veracity. In the light most favorable to the verdict, the evidence showed that a system was in place to target vehicular accident victims, contact them unannounced and uninvited, refer them to Mercier’s law office, from there refer them to Plambeck’s clinic, and secure settlement of personal injury claims. According to Rhodes, Mercier and Plambeck agreed that Mercier would pay $50 toward Mora’s $500 fee. According to Mora, Plambeck paid him through Mora’s three different business entities for obtaining patients.

We are mindful that the essential element of criminal conspiracy in this case was an agreement to commit barratry. See Cuellar, 13 S.W.3d at 453. Because conspirators’ work is often done in secrecy and under cover, direct evidence is not required to support a conviction for criminal conspiracy; circumstantial evidence will suffice. Id. At trial, Mora acknowledged his grand jury testimony that Mercier paid him $4,000 for referring clients. Mora declined to testify as to the truth of the testimony. Because he was an accomplice, Mora’s testimony required corroboration. Cathey, 992 S.W.2d at 462. Rhodes testified that Mercier agreed with Plambeck to pay $50 toward Mora’s fee. Because a hypothetically correct jury charge would have instructed the jury that Rhodes was an accomplice witness, her testimony also required corroboration. Id.; Malik, 953 S.W.2d at 240. A reasonable inference is that the trial court had reason to doubt Mora’s and Rhodes’ credibility. See Charles, 146 S.W.3d at 206; see also Johnson, 571 S.W.2d at 173; Esquivel, 506 S.W.2d at 615. We must defer to the trial court’s resolution of historical facts. Charles, 146 S.W.3d at 206.

Ruling on a motion for new trial based upon legal insufficiency of the evidence required the trial court to use the same standard of review as that used by appellate courts. See Savage, 905 S.W.2d at 274; Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Viewed in the light most favorable to the verdict, evidence adduced by non-accomplice witnesses establishes that they signed documents requesting Mercier’s legal services and identifying a referral source. The witnesses did not initiate the contact they had with persons from Mercier’s law office offering post-accident services. Once contacted, the witnesses hired Mercier to represent them and were referred to Plambeck’s clinic. Some of the witnesses identified Rhodes by name. Mercier’s former employee Ortiz testified that: (1) Mora visited the law office about twice a week; (2) in 1998, most of the referrals were from Mora and to Plam-beck; and (3) Ortiz had instructions to further refer Mora’s referrals to Plam-beck’s clinic. Once, Mercier paid Mora $4,000.00.

Viewing the evidence favorably to the verdict and eliminating from consideration testimony of the accomplice witnesses, Mora and Rhodes, in the context of a legal sufficiency challenge at the motion for new trial phase, the trial court must consider whether there was evidence tending to connect Mercier to the conspiracy. Thus, the trial court must consider evidence of the essential element of an agreement to commit barratry. Mercier’s former employee, Ortiz, testified as to: (1) Mora’s presence in Mercier’s office twice weekly; and (2) the instruction that Mora’s referrals be further referred to Plambeck. See Hernandez, 939 S.W.2d at 176. The trial court could have concluded that the combined weight of the non-accomplice evidence did not sufficiently link Mercier to the offense and, thus, the requirement of article 38.14 was not fulfilled. Id.; see Hughes v. State, 24 S.W.3d 833, 840 n. 4 (Tex.Crim.App.2000). After resolving the historical facts and applying the appellate standard for legal sufficiency, the trial court could have concluded that the State did not prove the essential element of an intent to conspire. Similarly, whether the affirmative link factors, viewed in the light most favorable to the prosecution, established the essential element of criminal conspiracy, namely, an agreement to commit barratry, was squarely before the trial court. The trial court concluded the evidence was legally insufficient.

Even so, the trial court was bound by legal sufficiency standards in Jackson, 443 U.S. at 319, 99 S.Ct. 2781; see Savage, 905 S.W.2d at 274. In the light most favorable to the jury’s verdict, the evidence shows that Mercier agreed with one or more persons to “telemarket” vehicular accident victims to increase his business income. The evidence shows Mercier paid Mora, admittedly Plambeck’s employee, $4,000 for his work in identifying, contacting, and engaging vehicular accident victims. Non-accomplice evidence shows Mora paid his own employees to refer persons to Mercier’s office. A jury could reasonably infer the requisite intent from two requirements in place at the law office, that: (1) solicited persons must execute forms indicating the referral source and requesting Mercier’s legal services; and (2) persons solicited by Mora, once signed as clients, must be referred to Plambeck’s clinic.

The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex.App.-Beaumont 1996, pet. ref'd). As fact finder, the jury is free to accept one version of the facts, reject another, or reject all or any of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). Simply because the defendant presents a different version of the facts does not render the State’s evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985). As the reviewing court, we may not sit as a thirteenth juror and disregard or reweigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988) (en banc).

After reviewing all the evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. We conclude the evidence is legally sufficient. Thus, even applying deferential standards as we must, we conclude that, on this record, the trial court abused its discretion in granting a new trial and vacating the verdict on legal insufficiency grounds. We sustain the State’s second issue. We overrule Mercier’s fourth cross-point.

TV. CONCLUSION

We reverse the trial court’s order. We remand the cause for entry of judgment reflecting the jury’s verdict. We need not reach the State’s third and fourth issues. See Tex.R.App. P. 47.1. Similarly, we do not reach Mercier’s remaining cross-points. Id.

      . The cause number below is CR-3680-01-F, styled State of Texas v. Eugene X. Mercier.

      . Tex.Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp.2004-05).

      . Mercier’s cross-points are presented by alphabet. For ease of reference, we use the numerical counterpart.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

      . The indictment alleges that Mercier:
      [0]n or about the 30th day of September A.D., 1997, and before the presentment of this indictment, in Hidalgo County, Texas, with intent that a felony, to-wit: barratry be committed, did then and there agree with Kent Plambeck that they would engage in conduct that would constitute said offense, and the said Kent Plambeck did perform [an] overt act in pursuance to said agreement, to-wit: pay, give, offer to pay, and give Charles Mora money to solicit employment from auto accident victims for legal representation by Eugene Mercier;
      [0]n or about the 30th day of September A.D., 1997, and before the presentment of this indictment, in Hidalgo County, Texas, with intent that a felony, to-wit: barratry be committed, did then and there agree with Kent Plambeck that they would engage in conduct that would constitute said offense, and the said Eugene Mercier did perform an overt act in pursuance to said agreement, to-wit: offer to pay, and give Charles Mora money to solicit employment from auto accident victims for legal representation by Eugene Mercierf]

      . See Tex. Pen.Code Ann. § 15.02 (Vernon 2003). Section 15.02 states:
      (a) A person commits criminal conspiracy if, with intent that a felony be committed
      (1) he agrees with one or more persons that they or one of more of them engage in conduct that would constitute the offense; and
      (2) he or one or more of them performs an overt act in pursuance of the agreement.
      (b) An agreement constituting a conspiracy may be inferred from acts of the parties.
      (c) It is no defense to prosecution for criminal conspiracy that:
      (1) one or more of the coconspirators is not criminally responsible for the object offense;
      (2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;
      (3) one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;
      (4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or
      (5) the object offense was actually committed.
      (d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.

      . As grounds to continue sentencing, Mercier asserted the following: (1) contrary to its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the State had not produced audiotapes; (2) that he filed a motion for discovery of exculpatory and mitigating evidence in cause number CR-0452-00, the case involving the dismissed indictment; and (3) that he needed additional time to obtain, listen to, and transcribe the tapes. Mercier requested the trial court order the State to produce the tapes. The appellate record contains a pre-trial Brady motion.

      . The trial court ordered, in part: (1) sentencing postponed; (2) the State to provide to the defense all evidence that may be exculpatory, mitigative, or impeaching as to (a) the alleged co-conspirator Kent Plambeck, (b) any witnesses testifying at trial or before the grand jury, and (c) any employee of Plambeck or Mercier; (3) the prosecutor to permit the defense to listen to specified audiotape recordings; and (4) defense counsel to provide the prosecutor a final transcript of each recording. The order details specifics of post-trial discovery of Brady material between the State and the defense.

      . Texas Rule of Appellate Procedure 22.2(a) provides grounds for arrest of judgment in a criminal case. It states, in relevant part, a motion may be based on grounds that the indictment is subject to an exception on substantive grounds. See TexR.App. P. 22.2(a).

      . This is a misnomer. Mercier had already filed his motion for new trial.

      . Mercier again asserted that he did not forfeit the right to object to the defect, error, or irregularity of form or substance in the indictment because he filed a pretrial application for writ of habeas corpus.

      .Mercier alleged, "Within thirty days after the date of the trial court’s orally imposing sentence in open court, a defendant may, without leave of court, file one or more amended motions for new trial. See Tex R.App. P. 21.4(b).”

      . The order states:
      ORDER ON MERITS OF DEFENSE’S REQUESTS FOR NEW TRIAL
      It is noted by the court that the above defendant’s amended Motion for New Trial was presented to the court in open court on July 18, 2002, and that prior to that day the court had read said amended motion and its incorporated motion for new trial filed July 9, 2002.
      On July 18, and 19, 2002, the court had a hearing in the above cause on each of defense's timely presented new trial requests: namely, (1) the motions for new trial filed on June 14, 2002, on July 9, 2002, and on July 15, 2002, which last motion specifically incorporated therein all of the Motion for New Trial filed on July 9, 2002. The court considered each of those three motions as being still pending and requiring dispositive timely determinations by the court. At said hearing, appearing for the State were Criminal District Attorney Rene Guerra and prosecutor ...; and appearing for the defense were defendant Eugene X. Mercier, and his counsels....
      After not only taking judicial notice herein of all prior findings, hearings, proceedings and the jury trial in the above cause and its predecessor related causes numbered CR-441-00-F, CR-452-00-F, and CR-3 669-01-F, and after also hearing and considering evidence, counsel’s proffers, stipulations, agreements, argument and applicable law, it is ordered by the court that as to each of the above three pending requests for new trial, the following orders be and each is hereby entered.
      It is ordered by this court that the defendant's motions for new trial filed on: June 14, 2002, July 9, 2002, and July 15, 2002, be and each of them same is hereby granted and an order of acquittal is hereby entered finding defendant Eugene X. Mercier not guilty of the crime charged, for after reviewing all the evidence, in the light most favorable to the jury's verdict, against the requisites of hypothetically correct jury instructions applicable herein, the court finds that the State failed to prove each and every requisite essential element of the charged offense beyond a reasonable doubt. (Emphasis original).
      If a reviewing court determines that the above dispositive order is incorrect, then let it be know [sic] that this court has found and does find the determining facts and applicable law to be such that this court must enter the following order; and therefore in that event it is then now ordered by this court that the defendant’s motions for new trial filed on: June 14, 2002, July 9, 2002, and July 15, 2002, be and each of the same is hereby granted and an order dismissing the indictment and the prosecution herein is hereby entered. (Emphasis original).
      If a reviewing court determines that each of the above dispositive orders is incorrect, then let it be know [sic] that this court has found and does find the determining facts and applicable law to be such that this court must enter the following order; and therefore in that event it is now finally ordered that the defendant’s motions for new trial filed on: June 14, 2002, July 9, 2002, and July 15, 2002, be and each of the same is hereby granted and the cause will be promptly scheduled by the court for pretrial hearing and subsequent proceedings. (Emphasis original).
      Signed for entry today, August 22, 2002. /s/ [Judge Presiding]

      . Rule 21.4 states:
      (a) To File: The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.
      (b) To Amend: Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial. Tex.R.App. P. 21.4.

      . The charge states:
      Our law provides that a person commits the offense of criminal conspiracy, if, with intent that a felony be committed, (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement.
      An “overt act” is any act knowingly committed by one of the conspirators in an effort to effect or accomplish some object or purpose of the conspiracy. The overt act need not be criminal in nature if considered separately and apart from the conspiracy. It must, however, be an act which follows and tends toward accomplishment of the plan or scheme and must be knowingly done in furtherance of some object or purpose of the conspiracy.

      . The charge states:
      You are further instructed that a person commits the felony offense of Barratry if the person, with the intent to obtain an economic benefit,
      A. pays or gives or offers to pay or to give another person money to solicit employment.

      . "Economic benefit” means anything reasonably regarded as an economic gain or advantage, including accepting or offering to accept employment for a fee, accepting or offering to accept a fee, entering into a fee contract, or accepting or agreeing to accept money or anything of value. Tex. Pen Code Ann. § 38.01(3) (Vernon 2003).

      . Section 38.12 provides:
      (a) A person commits an offense if, with intent to obtain an economic benefit the person:

        (1) knowingly institutes a suit or claim that the person has not been authorized to pursue;
      (2) solicits employment, either in person or by telephone, for himself or for another;
      (3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;
      (4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;
      (5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or
      (6)accepts or agrees to accept money or anything of value to solicit employment, (b) A person commits an offense if the person:
      (1) knowingly finances the commission of an offense under Subsection (a);
      (2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or
      (3) is a professional who knowingly accepts employment within the scope of the person's license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).
      Tex. Pen.Code Ann. § 38.12 (Vernon 2003).

      . The argument was made in the context of the defense’s asserted harm by claimed Brady violations.

      . For disposition of the charges against Plambeck, see Plambeck v. State, No. 13-02-492-CR and 13-02-493-CR, 2004 Tex.App. LEXIS 10818 (Tex.App.-Corpus Christi, December 2, 2004, pet. filed).

      . According to Rhodes, Plambeck’s employee, Doug Friedman, conceived an idea to involve a body shop in securing client/patient referrals, and the two involved Mercier. Mora obtained traffic accident reports and called laborers or blue-collar workers.

      . The record shows both Mora and Rhodes were granted immunity for purposes of their grand jury testimony. The charge instructed the jury that Mora was an accomplice witness and on accomplice testimony generally.

      . Mora invoked his Fifth Amendment right and, when ordered to testify in part based on immunity, he acknowledged the testimony he gave to the grand jury without committing to its veracity. This occurred primarily during questioning regarding whether Mercier paid for his referral services.

      . Mora later testified that he told the grand jury what they wanted to hear and gave the $4,000 figure as an amount that came to his head.

      . The record does not establish the source of the instruction.

      . At one point, Valdez testified that Plam-beck paid him and provided an IRS form 1099 but then stated he did not recall whether Plambeck paid him directly or not.