author: BEA ANN SMITH, Justice.

text:
    Ty JOHNSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00426-CR.
    Court of Appeals of Texas, Austin.
    Aug. 12, 2004.

      Alexander L. Calhoun, Austin, TX, for appellant.
    F. C. Schneider, Criminal District Atty., Melinda E. O’Neil, Asst. Criminal District Atty., Lockhart, TX, for appellee.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

A jury found Ty Johnston guilty of four counts of injury to a child causing bodily injury and one count of injury to a child causing serious bodily injury. See Tex. Pen.Code Ann. § 22.04(a)(1), (3) (West 2003). The jury also found that Mr. Johnston used a deadly weapon in the commission of those offenses in which he caused bodily injury. The court imposed a sentence of ten years’ confinement and a $5,000 fine for each of the bodily injury counts and forty-five years’ confinement and a $5,000 fine for the serious bodily injury count. Mr. Johnston challenges the legal and factual sufficiency of the evidence supporting the jury’s deadly weapon findings, and his conviction for injury to a child causing serious bodily injury. Finding the evidence sufficient, we affirm the judgments of conviction.

FACTUAL BACKGROUND

At the time of the offenses, Mr. Johnston lived with his wife Crystal Johnston, her three-year-old son C.T., and her four-year-old daughter A.S. Crystal Johnston was pregnant with the first child of her marriage to Mr. Johnston. On May 23, 2000, C.T. and A.S. accompanied Mr. Johnston and Crystal Johnston to the South Austin Hospital because Crystal Johnston was experiencing labor pains. Hospital staff noticed that C.T. appeared sick; his face was black and blue, his skin was grey in color, and he could barely hold his head up. When asked about C.T.’s condition, Mr. Johnston informed them that C.T. had been vomiting and unable to keep food down for several days. C.T. was taken to the emergency room at the suggestion of the hospital staff.

Dr. Anthony Marks examined the lethargic C.T. and found that he had a temperature of 101 degrees, dehydration, a distended abdomen, bruises of varying age all over his body, a cigarette burn on his hand, and an old laceration on his chin. Dr. Marks testified at trial that he was concerned about internal bleeding and that C.T.’s condition was “life-threatening.” Arrangements were made to transfer C.T. to the Children’s Hospital of Austin; a team that specializes in transporting critically ill children was used.

Once at the Children’s Hospital, C.T. was given intravenous fluids and became more alert. He was diagnosed as having a bowel obstruction caused by internal bleeding. The injury made it impossible for C.T. to digest food and water. It also led to a buildup of potentially toxic stomach secretions. A tube was inserted to empty C.T.’s stomach of air and fluid, and a feeding tube was surgically inserted. C.T. was hospitalized for approximately three weeks. Both his treating pediatrician and Dr. Beth Nauert, a pediatrician specializing in child abuse cases, testified that the injury was a result of non-accidental blunt force trauma. Dr. Nauert also testified that the bruising throughout C.T.’s body was caused by blunt force trauma and that various hypothetical forms of abuse would be capable of causing death or serious injury.

Dr. Teresa Vasquez examined Crystal Johnston’s other child A.S. the next day, May 24. She testified that she found bruising under A.S.’s eyes that appeared to be approximately ten days old. She also discovered bruises in various stages of healing on the forehead, chest, groin, buttocks, and the upper and lower extremities. She testified that the majority of the bruises did not appear to be the result of accidental trauma and may have been inflicted as recently as three days prior to the examination. Although none of AS.’s injury’s were life threatening, Dr. Vasquez testified that various forms of abuse that may have caused the injuries could have resulted in serious bodily injury.

Several witnesses testified about Mr. Johnston’s explanations for his stepchildren’s injuries. Austin police officer Richard Cross interviewed him both at the South Austin Hospital and the Children’s Hospital. Cross testified that Mr. Johnston told him that C.T. fell off of a jungle gym a few days prior to going to the hospital and that he had been bedridden, vomiting, and unable to eat since. Mr. Johnston later told Cross that C.T. had also fallen off of a three-foot porch and that the boy was clumsy and fell down a lot. Cross testified that Mr. Johnston gave inconsistent stories as to why C.T. was brought to the hospital. Mr. Johnston also stated that he spanked C.T. and that C.T. bruised easily. He later told Cross that he was not allowed to spank C.T. and that he disciplined C.T. by standing him in a corner. Detective Douglas Havens, a member of the Child Abuse Unit, met Cross at the Children’s Hospital and participated in the interview with Mr. Johnston there. He confirmed that Mr. Johnston attributed C.T.’s injuries to accidental falls.

Lockhart police officer David Powell and Child Protective Services (CPS) social worker Kelly Ragland interviewed Mr. Johnston on the evening of May 23, 2000. Powell testified that Mr. Johnston initially claimed that C.T.’s injuries were caused by accidental falls and that he was clumsy. Powell testified that he observed Mr. Johnston fidgeting and that his demeanor led Powell to believe that he was probably lying. Powell then confronted Mr. Johnston with probable lies that he believed Mr. Johnston had told him. Powell stated that Mr. Johnston began crying and told him that he “was a good parent, but sometimes he got angry.” Mr. Johnston then told Powell and Ragland that he would often spank C.T. with his hands or a belt. Mr. Johnston admitted having shoved C.T.’s head into a wall and pushing him, causing C.T. to fall on his boot. He explained that he would hit C.T. to try to make the child stop crying. Mr. Johnston later continued to attribute some of C.T.’s bruises to a fall from playground equipment at the park. Mr. Johnston also told Powell and Ragland that he “hit [A.S.] and treated [A.S.] the same way that he did [C,T.].”

Ragland also testified about her conversation with Mr. Johnston. She recounted that, on May 31, Mr. Johnston called her office and was upset that C.T. and A.S. had been taken into CPS custody. When she called Mr. Johnston back, he denied harming the children, told her that he had not given a written statement, and that she could not prove anything. He told her that his stepdaughter’s black eyes were caused by smeared mascara and that the children’s mother was responsible for the abuse.

The State called Crystal Johnston to testify about her husband’s abuse of the children. She explained that she and the children relied on Mr. Johnston to provide for the family. Crystal Johnston described several incidents of abuse in the weeks leading up to C.T.’s hospitalization. In April 2000, Mr. Johnston arrived home angry after work, picked up C.T. and dropped him to the floor repeatedly, kicked him in the back and head, and punched him in the stomach. She recounted another incident on May 20 when Mr. Johnston picked up C.T. and threw him to the floor, kicked him in the back, punched him in the stomach, and beat him with a belt. Crystal Johnston also described that on either May 20 or May 21, Mr. Johnston threw C.T. against a wall and a chair, kicked and punched him in the stomach, and shoved his face into a wall.

At the time of the second beating, C.T. was already bruised and sick. Crystal Johnston testified that C.T. had been vomiting for two days straight. She and Mr. Johnston gave C.T. food and liquids, but he was unable to keep them down. They discussed taking C.T. to the hospital, but Mr. Johnston told her, “We can’t take him to the hospital because if we do, the police will be called and we both will be taken to jail and arrested for the multiple bruisings on [C.T.].”

Crystal Johnston also testified that Mr. Johnston beat A.S. during the weeks leading up to C.T.’s hospitalization. She stated that Mr. Johnston would stand on top of the child, slap her in the face, punch her, kick her, and throw her across the floor. She testified that, before they went to the hospital on May 23, they dressed both children up with long sleeves and hats in an attempt to hide their injuries.

DISCUSSION

Mr. Johnston challenges the legal and factual sufficiency of the evidence supporting all of the jury’s deadly weapon findings, as well as his conviction for causing serious bodily injury to C.T. by omission.

Serious bodily injury by omission

In Mr. Johnston’s first two issues, he challenges the legal and factual sufficiency of the evidence supporting the jury’s verdict finding him guilty of intentionally or knowingly causing serious bodily injury to C.T. by fading to seek medical care and failing to provide sufficient liquids to prevent dehydration. See Tex. PemCode Ann. § 22.04(b). Mr. Johnston contends that the evidence was insufficient to establish his guilt because: (1) it was not his conscious objective or desire to cause serious bodily injury through his failure to provide medical care and sufficient liquids, (2) his failure to provide medical care and sufficient liquids did not cause the serious bodily injury, and (3) he did provide food and liquid to C.T. and C.T.’s prior injury is what caused the dehydration.

When there is a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Cidm.App. 2004) (factual sufficiency). In a legal sufficiency review, all the evidence is reviewed in the fight most favorable to the verdict; it is assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781). In a factual sufficiency review, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex.App.-Austin 1992, no pet.). Although due deference must be accorded the fact finder’s determinations, particularly those concerning the weight and credibility of the evidence, the reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000). The evidence will be deemed factually insufficient to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, at 486; see Johnson, 23 S.W.3d at 11.

Section 22.04(a) of the penal code provides, in relevant part, that a person commits an offense if he intentionally or knowingly, by act or omission, causes bodily injury to a child. Tex. Pen.Code Ann. § 22.04(a). Injury to a child is a “result of conduct” offense. Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985); Dusek v. State, 978 S.W.2d 129, 133 (Tex.App.-Austin 1998, pet. refd). Therefore, the State had to prove not only that Mr. Johnston intentionally or knowingly failed to provide medical care or fluids, but also that he intentionally or knowingly caused the injury. See Alvarado, 704 S.W.2d at 39 (contrasting “result of conduct” crimes with “nature of conduct” crimes). A person acts intentionally when “it is his conscious desire to engage in the conduct or cause the result.” Tex. PemCode Ann. § 6.03(a) (West 2003). A person acts knowingly with respect to a result of his conduct when “he is aware that his conduct is reasonably certain to cause a result.” Id. § 6.03(b).

Conscious objective or desire

Mr. Johnston contends that the evidence was insufficient because the State did.not produce evidence showing that it was his conscious objective or desire to cause serious bodily injury to C.T. through his failure to provide medical care or sufficient fluids. He cites several opinions from the court of criminal appeals and this court discussing the offense of causing serious bodily injury to a child. He contends that these cases require the State to prove that he both intended to cause the injury and that he knew that his conduct was certain to cause the injury in order to obtain a conviction. See Alvarado, 704 S.W.2d at 39; Beggs v. State, 597 S.W.2d 375, 377 (Tex.Crim.App.1980); Dusek, 978 S.W.2d at 133; Wheeler v. State, 952 S.W.2d 603, 609 (Tex.App.-Austin 1997, pet. ref'd).

In Beggs, for example, the court of criminal appeals discussed the fact that injury to a child is a “result of conduct” offense and stated:

[T)he allegation in the indictment that the appellant did “(1) intentionally and (2) knowingly engage in conduct that caused serious bodily injury” was an allegation (1) that it was her conscious objective or desire to cause serious bodily injury and (2) that she was aware that her conduct was reasonably certain to cause serious bodily injury.

597 S.W.2d at 377. In Wheeler, this court similarly described the State’s burden to prove injury to a child by omission:

[T]he State had the burden of proving beyond a reasonable doubt that appellant had the “conscious objective or desire” to cause serious bodily injury to the victim by failing to provide medical care for the victim when appellant was then and there the caretaker of the victim, and had assumed care, custody and control over the victim.

952 S.W.2d at 608. The cited language appears to require proof of the intentional mens rea, even though the statute assigns the same criminal liability to injuries that are the result of either intentional or knowing conduct.

In Dusek, this court discussed the close relationship between the intentional and knowing mens rea:

In the context of a result-type offense ... the distinction between knowing and intentional is narrow, and is preserved only because of the criminal law’s traditional creation of specific intent offenses such as burglary, arson, and theft. We say “only” because there is little difference, in terms of blameworthiness, between one who wills a particular result and one who is willing for it to occur— between, for example, one ... who shoots into a moving car, intending to kill the driver, and one who shoots into a moving car he knows is occupied. The formulated distinction between intentional and knowing, as to results, is thus between desiring the result and being reasonably certain that it will occur.

978 S.W.2d at 134 (citing Seth S. Searcy III & James R. Patterson, Practice Commentary, Tex. Pen.Code Ann. § 6.03 (West 1974)). In Dusek, however, this Court recognized that the State has provided sufficient evidence to convict a person of causing injury to a child by omission if that omission was made “either with the conscious objective or desire to cause serious bodily injury to the boy or with an awareness that serious bodily injury was reasonably certain to result.” Id. (emphasis added). Furthermore, in Alvarado, the court of criminal appeals reversed an injury to a child conviction because the jury instructions did not require “a finding that she intended or knew serious bodily injury would result.” 704 S.W.2d at 40 (emphasis added). The knowing mens rea has also been applied by the Fort Worth Court of Appeals in reviewing a conviction for injury to a child by omission. See Patterson v. State, 46 S.W.3d 294, 303 (Tex.App.-Fort Worth 2001, no pet.) (evidence is insufficient when “there is no evidence that appellant was aware with reasonable certainty that injury to the children would have been prevented had she acted”); see also Kohler v. State, 713 S.W.2d 141, 145 (Tex.App.-Corpus Christi 1986, pet. ref'd) (opinion on rehearing) (“We need not speculate on appellants’ conscious objective or desire. It is sufficient that evidence shows that appellants were aware that the circumstances existed, and that their conduct would be reasonably certain to cause death.”).

In light of Dusek, Alvarado, and Patterson, we hold that the evidence is sufficient to support Mr. Johnston’s conviction for injury to a child by omission under section 22.04(a) of the penal code if the State proves either that Mr. Johnston intended to cause the injury through his omission or that he was aware that his omission was reasonably certain to cause the injury. This standard reflects the language of the statute which assigns equal criminal liability for either intentional or knowing conduct and is consistent with the statements made in more recent cases from the court of criminal appeals, this court, and other courts of appeals. To the extent that the standard articulated in Wheeler is inconsistent with this holding, we find that standard was overruled by the subsequent opinions in Alvarado and Dusek.

We therefore consider whether the State presented sufficient evidence that it was Mr. Johnston’s conscious objective or desire to cause serious bodily injury through his omissions or that Mr. Johnston was aware that his failure to provide medical care and fluids was reasonably certain to cause serious bodily injury. The State presented evidence that Mr. Johnston discussed C.T.’s deteriorating medical condition with his wife and decided not to take C.T. to the hospital for fear that his abuse would be discovered. Although this evidence leads to the conclusion that Mr. Johnston’s objective in failing to provide medical care was to avoid detection rather than to inflict injury upon C.T., it also shows that Mr. Johnston was aware of C.T.’s dire medical condition and the need to take him to the hospital. C.T.’s sickly appearance, distended abdomen, and inability to hold himself up or hold down food and water for several days all provide ample evidence to support a jury’s determination that Mr. Johnston was aware that the failure to provide medical care was reasonably certain to cause serious bodily injury to C.T. Viewing the evidence in the light most favorable to the prosecution, it is sufficient for a rational jury to find beyond a reasonable doubt that Mr. Johnston knowingly caused serious bodily injury to C.T. through his failure to provide medical care. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781. Nor do we find after a neutral review of the evidence that the evidence is too weak or the contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, at 486.

Causation

Mr. Johnston next contends that the evidence was insufficient because C.T.’s injury was caused by Mr. Johnston’s physical abuse, rather than his failure to provide medical care. Because injury to a child is a “result of conduct” offense, the State must prove that Mr. Johnston’s failure to provide medical care caused a serious bodily injury. Because Mr. Johnston had assumed care, custody, or control of C.T., he held a separate duty to ensure that C.T.’s injury was treated, regardless of its origin. See Tex. Pen Code Ann. § 22.04(b). To the extent that Mr. Johnston’s failure to treat C.T.’s injury created a substantial risk of death above and beyond that sustained in the initial injury, Mr. Johnston was subject to criminal liability for the omission.

In Dusek, a neglected child was brought to the hospital with a broken leg. 978 S.W.2d at 131. This Court found the evidence insufficient to support a conviction for injury to a child by failing to provide medical care. Id. We explained:

There also is no evidence that appellant faded to obtain medical treatment for Billy’s broken leg or that any omission on appellant’s part aggravated the seriousness of the injury. The State’s medical witnesses did not testify that Billy’s leg appeared to have been broken for an unusual period of time or otherwise suggest that treatment had been delayed, nor did they testify that Billy’s recovery from the injury was in any way hindered by a delay in receiving medical care.

Id. By contrast, Mr. Johnston clearly delayed C.T.’s medical treatment for several days while C.T.’s health visibly deteriorated. When he was examined at the hospital, C.T.’s condition was described as “critical.” Two experts testified that the delay in treating C.T.’s injuries resulted in a life threatening dehydration and buildup of stomach secretions. There was no contrary evidence presented indicating that C.T.’s injury would have been equally life threatening had he been provided timely medical attention or that C.T.’s condition was less severe than the State’s witnesses described. We therefore conclude that there was legally and factually sufficient evidence to show that Mr. Johnston’s failure to provide medical care caused C.T.’s serious bodily injury. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781; Zuniga, at 486. Because we conclude that there was sufficient evidence to convict Mr. Johnston of injury to a child by failing to provide medical care, we need not reach Mr. Johnston’s contention that the evidence was insufficient to prove that he failed to provide adequate food and liquids to C.T.

We overrule Mr. Johnston’s first two issues.

Deadly weapon findings

In his remaining issues, Mr. Johnston challenges the legal and factual sufficiency of the evidence underlying the jury’s findings that Mr. Johnston used a deadly weapon when he physically abused both children. He contends that the findings were based on the hypothetical testimony of medical experts, not the specific facts of the abuse episode. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000); Johnston v. State, 115 S.W.3d 761, 763 (Tex.App.-Austin 2003, pet. granted). In order to establish the use of a deadly weapon during the commission of an offense, the State must show that the defendant used

a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Pen.Code Ann. § 1.07(a)(17) (West 2003). Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46). An alleged deadly weapon’s capability of causing serious bodily injury or death in the manner of its use must be evaluated in light of the facts that actually existed when the felony was committed. Rodriguez v. State, 31 S.W.3d 772, 779 (Tex.App.-Austin 2000), aff'd, 104 S.W.3d 87 (Tex.Crim.App.2003). The State need not prove that the defendant caused or even intended to cause death or serious bodily injury in order to justify a deadly weapon finding; rather the State must only prove that the actual use or intended use of the object was capable of causing death or serious bodily injury. See Garcia v. State, 92 S.W.3d 574, 575-76 (Tex.App.-Austin 2002, no pet.).

We recently reversed a deadly weapon finding in Mr. Johnston’s separate conviction for injury to a child arising out of Mr. Johnston’s inflicting a cigarette burn to the palm of C.T.’s hand. Johnston, 115 S.W.3d at 764. In that case, the State relied on expert testimony that the use of a lit cigarette could cause serious bodily injury in some hypothetical situations. Id. We explained, however, that the evidence introduced at trial demonstrated that Mr. Johnston only used the cigarette to make a single burn on C.T.’s hand and that the resulting injury was not serious. Id. We then concluded that the evidence was legally insufficient to support the deadly weapon finding:

[T]he State offered no evidence that the appellant intended to use the cigarette in any other manner that would have been capable of causing serious bodily injury. The fact that appellant could have caused serious bodily injury if he had used, or intended to use, the cigarette in a way other than he actually did does not support a deadly weapon finding.

Id.; see also McCain, 22 S.W.3d at 503. As in our prior opinion, we will examine the evidence presented at trial regarding Mr. Johnston’s actual use of his hands, a belt, and a hard surface in each deadly weapon finding to determine if they were used in a manner capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17).

Mr. Johnston’s use of his hands against A.S.

Mr. Johnston was convicted of intentionally causing bodily injury to A.S. His wife Crystal Johnston described the abuse:

I seen the Defendant, Ty Wayne Johnston, take [A.S.], when she would not read and obey him, spread her legs, hold them down, stand on top of her, put all force on her. Then I would see him take her, slap her in the face. He would also punch her, kick her, throw her across the floor.

Dr. Teresa Vasquez examined A.S. soon after the abuse was discovered. She testified that A.S. had bruising under both eyes, on her head, and throughout the rest of her body. Dr. Vasquez described a number of serious complications that could arise from the injuries A.S. sustained, but confirmed that A.S. did not suffer from them. In response to a series of hypothetical questions, Dr. Vasquez explained that a human hand can be used to strike a child with such force as to kill or cause serious bodily injury to a child of A.S.’s age. She also described how a blow from a hand to different areas of a child’s body might cause death or serious bodily injury.

Dr. Vasquez’s hypothetical testimony was coupled with uncontested evidence that Mr. Johnston used his hands to slap, punch, and throw a four-year-old child, and that this abuse caused bruising throughout A.S.’s body, including her head. In contrast to the testimony regarding the cigarette in Johnston, the actual use of the alleged deadly weapon was consistent with the expert’s hypothetical testimony. Because the State presented evidence that Mr. Johnston actually used his hands in a manner that was capable of causing serious bodily injury or death to a four-year-old child, and there was no evidence to the contrary, we find the evidence legally and factually sufficient to sustain the jury’s deadly weapon finding and overrule Mr. Johnston’s third and fourth issues. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781; Zuniga, at 486.

Mr. Johnston’s use of his hands, hard surface, and belt against C.T.

In his final issue, Mr. Johnston challenges the jury’s finding that he used his hands, a belt, and a hard surface as a deadly weapon against C.T. in several incidents of abuse. He first points to the fact that the jury acquitted him on charges that he caused serious bodily injury by striking C.T. in the incident that caused the intestinal blockage and convicted only on the lesser included offense of causing bodily injury. Mr. Johnston contends that this verdict undermines the jury’s conclusion that he possessed the specific intent to cause serious bodily injury or that he used his hands or a hard surface in a manner that was “likely” to cause death or serious bodily injury. The statute, however, did not require the jury to find that Mr. Johnston either had the specific intent to cause bodily injury or that he in fact caused such injury. The inquiry is whether the actual use or intended use was capable of causing death or serious bodily injury. Tex. Pen.Code Ann. § 1.07(a)(17); see also Garcia, 92 S.W.3d at 575-76.

Here, there was evidence that Mr. Johnston picked up C.T. and repeatedly threw him to the floor, kicked him in the back, punched him in the stomach, and beat him with a belt. This abuse led to an internal injury that caused C.T. to be hospitalized for approximately three weeks. Expert testimony confirmed that the injury was life threatening and was caused by the abuse. We conclude that a rational jury could find beyond a reasonable doubt that such treatment of a three-year-old boy was capable of causing death or serious bodily injury. See Jackson, 443 U.S. at 324, 99 S.Ct. 2781. Furthermore, this evidence is neither so weak or the contrary evidence too strong to support a finding of guilt beyond a reasonable doubt. See Zuniga, at 486.

Mr. Johnston also contends that the State did not present sufficient evidence of his use of a deadly weapon in his beating C.T. with a belt and other beatings with his hands and a hard surface that resulted in only bruising. Citing the Texarkana Court of Appeals’ opinion in Kenney v. State, he argues that evidence demonstrating that the use of a hand or hard surface could cause serious bodily injury is not sufficient to sustain a deadly weapon finding. See 750 S.W.2d 10, 11 (Tex.App.-Texarkana 1988, pet. ref'd). The cited language in Kenney, however, explained that general medical testimony that injuries could have created a substantial risk of death did not establish serious bodily injury to support an aggravated robbery conviction. Id. As we explained above, the State did not have to prove that Mr. Johnston actually caused serious bodily injury, only that his use of his hands, the belt, or the hard surface was capable of causing serious bodily injury.

In this case, the State presented Crystal Johnston’s first-hand description of the manner in which Mr. Johnston beat C.T. with a belt, hit C.T. with his hands, and threw C.T. against hard surfaces. The jury also heard hypothetical expert testimony that the abuse of a three-year-old child in such a manner was capable of causing a variety of life threatening medical conditions and death. Viewing this evidence in the light most favorable to the prosecution, we conclude that a rational jury could have made a deadly weapon finding beyond a reasonable doubt. Furthermore, because the State need only prove that an object was used in a manner capable of causing serious bodily injury to obtain a deadly weapon finding, the fact that the jury did not conclude that Mr. Johnston’s abuse of C.T. actually caused serious bodily injury does not render the State’s case so weak, or the contrary proof so strong, to support a finding of guilt beyond a reasonable doubt. See Zuniga, at 486. We therefore overrule Mr. Johnston’s final issue.

CONCLUSION

We find the evidence legally and factually sufficient to support the jury’s deadly weapon findings and its conviction of Mr. Johnston for injury to a child causing serious bodily injury. Accordingly, we affirm all the judgments of conviction.

      . Justice Jones issued a dissenting opinion in Wheeler arguing that the evidence was sufficient to sustain the conviction and emphasizing the majority's failure to consider whether Wheeler acted knowingly. Wheeler v. State, 952 S.W.2d 603, 610 (Tex.App.-Austin 1997, pet. ref'd) (“appellant was convicted of intentionally or knowingly injuring the child victim”).

      . It is likely that the focus on the intentional mens rea in Wheeler and Beggs stemmed from their citations to the indictments in those cases. See Beggs v. State, 597 S.W.2d 375, 377 (Tex.Crim.App.1980); Wheeler, 952 S.W.2d at 604. In both cases, the indictment alleged that the defendant "intentionally and knowingly” caused the injury. See Beggs, 597 S.W.2d at 377; Wheeler, 952 S.W.2d at 604. The fact that an indictment alleges alternative mens rea conjunctively, however, does not mean that the State must prove both in order to obtain a conviction. We have previously held that the State is permitted to anticipate variances in the proof by pleading intentional and knowing mens rea in the conjunctive when the proof of either will support a guilty verdict. See Belcher v. State, 962 S.W.2d 653, 656 n. 1 (Tex.App.-Austin 1998, no pet.) (citing Zanghetti v. State, 618 S.W.2d 383, 387-88 (Tex.Crim.App.1981)).

      . Mr. Johnston's use of the term "likely” misstates the current statutory definition of a deadly weapon. The historical common law definition of a deadly weapon did focus on whether an object’s use was "likely to cause death or serious bodily injury.” Thomas v. State, 821 S.W.2d 616, 617-18 (Tex.Crim.App. 1991). Since the adoption of the current penal code in 1974, however, the definition of a deadly weapon is solely governed by the statute, which focuses on whether a weapon is capable of causing death or serious bodily injury. Mat 619-20.


source: Caselaw Access Project

author: W. KENNETH LAW, Chief Justice.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Liberty Insurance Corporation, Liberty Mutual Fire Insurance Company, LM Insurance Corporation, and First Liberty Insurance Corporation, Appellants, v. Betty GRIESING, Individually and on behalf of all other persons similarly situated, Appellee.
    No. 03-03-00646-CV.
    Court of Appeals of Texas, Austin.
    Aug. 26, 2004.

      David P. Blanke, Spikes Kangerga, Vinson & Elkins, L.L.P., Austin, Russell Yager, David P. Henry, Vinson & Elkins, L.L.P., Dallas, for appellants.
    Gavin H. Mclnnis, Michael G. Maloney, Maloney & Maloney, PC, San Antonio, D.J. Powers, Law Office of D.J. Powers, Austin, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

Appellee Betty Griesing sought a partial summary judgment to determine whether appellant Liberty Mutual may lawfully impose a state-mandated fee for theft prevention beyond the automobile insurance rates filed by Liberty Mutual and approved by the commissioner of insurance under a state regulatory regime. The district court granted partial summary judgment in favor of Griesing, declaring that the collection of the theft-prevention fee in addition to the regulated rate is unlawful, that a rule of the commissioner of insurance, which Griesing alleged allowed Liberty Mutual to charge the theft-prevention fee in addition to the regulated rate, does not allow the collection of the fee in addition to the rate, that the rule is void to the extent that it could be read to permit the collection of the fee in addition to the rate, and that Liberty Mutual breached its insurance contract with Griesing. We affirm the district court’s judgment.

BACKGROUND

The legislature created the Texas Automobile Theft Prevention Authority (ATPA) in 1991 to combat automobile theft in this state. See Tex.Rev.Civ. Stat. Ann. art. 4413(37), § 2 (West Supp.2004). The ATPA is composed of seven members, including the director of the Department of Public Safety, and six other members appointed by the governor. Id. § 3. The ATPA’s statutory mission is to assess the scope of the automobile theft problem in Texas and - to analyze various methods combating the problem. Id. § 7. An insurer is required to pay one dollar per insured vehicle per year to the authority (“ATPA fee”). Id. § 10(b). By rale, the commissioner of insurance allows automobile insurers to recoup this fee from the policyholder. 28 Tex. Admin. Code § 5.205(a) (West 2002). The rule mandates that insurers must include a printed notice on policies that the fee is charged “in addition to the premium due.” Id. § 5.205(b)(1), (2).

The underlying suit in this case is a class action brought by Griesing against her auto insurer, Liberty Mutual, alleging that Liberty Mutual improperly charged the ATPA fee in addition to her auto insurance rate. She challenges only the manner in which Liberty Mutual recouped the fee — as a direct pass-through charge instead of as an expense to be considered in establishing the rates regulated under article 5.101 of the insurance code. Both parties filed motions for summary judgment, and the trial court granted partial summary judgment in favor of Griesing, declaring that Liberty Mutual may not lawfully impose the ATPA fee on Griesing outside of the rates filed and established by the insurance companies under article 5.101. It also found that rule 5.205 does not permit the collection of the ATPA fee outside the article 5.101 rate, that rale 5.205 is void to the extent that it could be read to permit the collection of the fee outside the approved rate, and that Liberty Mutual breached its insurance contract. This appeal followed.

DISCUSSION

Liberty Mutual brings three issues on appeal. First, it argues that it is authorized to collect the fee from policyholders separately from the premium rate. See Tex. Ins.Code Ann. § 21.35B (West Supp. 2004). Second, it asserts that rule 5.205 validly permits the collection of the ATPA fee in addition to the approved rate. See 28 Tex. Admin. Code § 5.205 (West 2002). Third, it states that no evidence exists on the record that it breached an automobile insurance contract or unlawfully charged the fee. Because this appeal comes from a grant of summary judgment in favor of Griesing, we begin with the appropriate standard of review.

The propriety of a summary judgment is a question of law, and we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for reviewing traditional summary judgments are: (1) the movant for summary judgment has the burden of showing that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A party moving for summary judgment must conclusively prove all elements of its cause of action or defense as a matter of law. Tex.R. Civ. P. 166a(e); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). When both sides move for summary judgment, as the parties did in this case, and the court grants one motion but denies the other, the reviewing court should review both sides’ summary-judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001).

ATPA Fee and the Article 5.101 Regulated Rate

In Liberty Mutual’s first issue, it argues that the district court erred because the ATPA fee is a tax and the insurance code expressly authorizes it to collect “taxes” from policyholders as a charge separate from the regulated rate. See Tex. Ins.Code Ann. art. 21.35B. In response, Griesing asserts that the ATPA fee is not a tax and, in any event, article 5.101 of the insurance code creates the only rate that an insurance company can charge a policyholder. Thus, she believes that any fee permitted under article 21.35B must be included in the 5.101 regulated rate.

In order to resolve this controversy, we must construe insurance code articles 5.101 and 21.35B. Statutory construction is a question of law, which we also review de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). Our objective when we construe a statute is to determine and give effect to the legislature’s intent. See Liberty Mutual Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Any resolution of an issue of statutory construction must begin with an analysis of the statute. See Renaissance Park v. Davila, 27 S.W.3d 252, 256 (Tex.App.-Austin 2000, no pet.); Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744, 762 (Tex.App.-Austin 2000, pet. denied). We must look at the insurance code as a whole instead of analyzing individual provisions in isolation from each other. See Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). We are to consider, among other factors, the language of the statute, legislative history, the nature and object to be obtained, and the consequences that would follow from alternate constructions, even when a statute is not ambiguous on its face. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). In case of conflict between a general statutory provision and a special provision dealing with the same subject, the special provision controls the general. Brazoria County v. Texas Comm’n on Envtl. Quality, 128 S.W.3d 728, 738 (Tex.App.-Austin 2004, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex.Civ.App.-Austin 1968, no writ).

In the specific context of automobile insurance, the legislature created a regulatory scheme for “standard” or “rate-regulated” insurers in article 5.101of the insurance code. In article 5.101, “rate” specifically means “the charge for a particular line for each unit of exposure.” Tex. Ins.Code Ann. art. 5.101, § 2(5) (West Supp.2004) (emphasis added). The commissioner annually sets a benchmark rate for each line of automobile insurance. Id. §§ 2(1), 3 (West Supp.2004). This benchmark rate must be a range of value that “promotes stability in that line” and “produces rates that are just, reasonable, adequate and not excessive for the risks to which they apply, and not confiscatory.” Id. § 3(b). In promulgating this rate, the commissioner may consider a number of factors, including: past and prospective loss experience; the peculiar hazards and experience of individual risks; a reasonable margin for profit; expenses of operation of all insurers; the level and range of rates and rate changes among insurers; and the investment and underwriting experience of insurers. See id. § 3(c). The list of factors the commissioner may consider is non-exclusive, and he may employ “any other factor considered appropriate” by him. Id. § 3(c)(13). The commissioner may only set the benchmark rate after holding annual public hearings, at which insurers have the opportunity to present actuarial data and make recommendations. Id. § 3(d).

This benchmark rate establishes a “flexibility band,” a range of rates from thirty percent below to thirty percent above the benchmark rates set by the commissioner, within which an insurer may increase or decrease rate levels by classification without prior approval by the commissioner. Id. §§ 2(3), 3(e). An insurer, however, must file its proposed rate with the commissioner and include with its filing “any statistics to support the rates to be used by the insurer as required by rule of the commissioner, including information necessary to evidence that the calculation of the rate does not include disallowed expenses.” Id. Filed rates within the flexibility band are presumed to be valid and in compliance with the requirements of section 3(e). Id. § 3(f). However, after holding a hearing the commissioner may find that the filing does not meet the requirements of section 3(e) and order the filed rate no longer in effect. Id. An insurer may not use a rate outside the upper and lower limits of the flexibility band without the prior approval of the commissioner. Id. § 3(g).

Article 5.101 also lists factors that may not be considered when setting the benchmark rate or a filed rate, whether within or outside of the flexibility band. Id. § 3(c)(4), (d), (e), (o). Among those factors, no rate may include insurer expenses related to administration, lobbying, advertising, damages in a suit against the insurer for bad faith or as fines or penalties for violation of law, contributions to organizations engaged in legislative advocacy or to social, religious, political, or fraternal organizations, fees and penalties imposed on the insurer for civil or criminal violations of law, or fees and assessments paid to advisory organizations. Id. § 3(o). In addition, the commissioner may disallow “any unreasonably incurred expenses,” as determined by the commissioner after notice and hearing. Id. § 3(o)(9).

The questions of unreasonably high profits or danger of insolvency are at the heart of the regulatory purpose. Id. § 3A (West Supp.2004). Rates submitted by insurers to the commission are considered excessive if “the rate is likely to produce a long-term profit that is unreasonably high.” Id. § 3A(b)(l). A rate is insufficient if it “endangers the insolvency of an insurer using the rate.” Id. § 3A(b)(2)(A). Consumers must be guaranteed a stable insurance market; article 5.101 creates stability by capping prices to ensure customers are not priced out of the market. Id. § 3A(b)(l). Conversely, the statute maintains stability by ensuring that prices are not set so low as to risk the insurer’s solvency. Id. § 3A(b)(2)(A). Finally, as a general provision no insurer — including automobile insurers — may solicit or collect any “payment” in connection with an insurance policy other than

(1) premiums;
(2) taxes;
(3) finance charges;
(4) policy fees;
(5) agent fees;
(6) service fees;
(7) inspection fees; or
(8) membership dues in a sponsoring organization.

Id. art. 21.35B(a).

When we consider articles 5.101 and 21.35B together, we note that article 5.101 creates a highly regulated environment for automobile insurance with specific goals, factors, and procedures. The commissioner may consider an insurer’s “expenses of operation” when setting the benchmark rate under article 5.101. See id. art. 5.101, § 3(c). In addition, the commissioner has wide discretion to disallow “unreasonably incurred expenses” when setting the benchmark rate, when reviewing an insurer’s filed rate, and when approving or disapproving an insurer’s application for a rate outside of the flexibility band. See id. § 3(d), (e), (i), (o). In the context of this regulatory scheme, article 21.35B acts as a limit on the ability of the commissioner to consider, or of an insurer to include, the costs of business in establishing a rate. That is, because an insurer may collect no payment other than premiums, taxes, finance charges, policy fees, and the other article 21.35B factors, insurers may only include those costs when filing rates with the commissioner. In addition, although the commissioner has broad authority to consider factors in addition to those enumerated in section 3(c) of article 5.101, he may not consider any costs not enumerated in article 21.35B.

Liberty Mutual argues that the “premiums” allowed by article 21.35B are equivalent to article 5.101 “rates.” It also asserts that article 5.101 does not cap the total charge to the insurance consumer at the article 5.101 rate. However, the comprehensive regulatory scheme the legislature created in article 5.101 supports the opposite conclusion. The rate is “the charge” for a line of insurance. Id. § 2(5) (emphasis added). Not only must the commissioner hold extensive hearings when setting the benchmark rate, but also insurers must file supporting statistics and information with their proposed rates even when that rate is within the flexibility band. Id. § 3(e). Insurers must include evidence to show that the calculation of the filed rate does not include disallowed expenses. Id. In the specific context of automobile insurance, disallowed expenses include all expenses not included in article 21.35B and all those enumerated in section 3(o) of article 5.101, even if those section 3(o) expenses would ordinarily be permitted under article 21.35B. When the legislature listed “premiums” as one of several “payments” an insurer could charge, it can only have meant that a premium is a component charge of the “rate.”

Liberty Mutual asserts that the list of allowable charges in article 21.35B includes only one article 5.101 regulated charge (premiums) and seven unregulated charges. If this interpretation were correct, it would then follow that when the Commissioner sets rates he would only be concerned with risk assessment and the appropriate dollar amounts to adequately cover those risks — what Liberty Mutual calls the “premium.” This construction, however, does not comport with the comprehensive regulatory intent expressed in the statute. When setting the benchmark rate, the commissioner is clearly allowed to consider factors other than risk-assessment — a reasonable margin for profit, expenses of operations, and any other factor he deems appropriate. See id. § 3(c). These factors, in addition to the risk-assessment, include the categories of the permissible payments of article 21.35B.

As a result, Liberty Mutual’s interpretation would yield unregulated add-ons to the price of a regulated insurance premium. Consumers would not be protected by the promises of regulation because the commissioner would not be able to exercise any oversight over an insurer’s “discretionary” addition of article 21.35B factors to a consumer’s bill. In fact, its interpretation would allow insurers to charge consumers twice for each of the unregulated factors. An insurer could first make recommendations to the commissioner for setting the benchmark rate and include those costs in its suggestions. In filing its actual rates, the insurer would also be able to include those factors. Then, when billing a consumer the insurer would be able to charge the regulated rate — already based in part on article 21.35B factors in addition to a reasonable margin for profit and the expenses of operation — and add the article 21.35B factors onto the regulated rate when generating a policyholder’s total charge. This result would undermine the regulatory structure the legislature created for automobile insurance.

We conclude that article 21.35B of the insurance code does not create a set of charges immune from the commissioner’s rate-setting procedures. Rather, it limits the broad discretion of the commissioner of insurance to include factors enumerated in article 21.35B. Although both parties briefed the issue whether or not the ATPA fee is a tax as listed in article 21.35B, we need not determine that issue at this time. Griesing does not dispute that the ATPA fee may be included in the article 5.101 rate, and in either case we have held that an insurer may not charge the ATPA fee separate from the regulated rate. We overrule Liberty Mutual’s first issue on appeal.

Validity of 28 Texas Administrative Code Section 5.205

In Liberty Mutual’s second issue, it argues that the commissioner’s rule, as adopted in 28 Texas Administrative Code section 5.205 (rule 5.205), allowing insurers to “recoup” the ATPA fee from policyholders, is a valid exercise of the commissioner’s regulatory authority. As a result, it believes that it can rely on rule 5.205 to add the ATPA fee onto the rate charged an individual policyholder. See 28 Tex. Admin. Code § 5.205.

In exercising the powers and the broad authority granted by the legislature, the only requirement of administrative agencies is that them rules and regulations must be consistent with the constitution and statutes of this state. Gerst v. Oak Cliff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.1968). In determining whether a particular administrative agency has exceeded its rule-making powers, we must ask if the rule’s provisions are in harmony with the general objectives of the act involved. Id. A rule of an administrative agency is void if it conflicts with a statute. Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 154 (Tex.App.-Austin 2001, no pet.).

By rule, the insurance commissioner authorizes each insurer to “recoup [the ATPA] fee from the policyholder.” 28 Tex. Admin. Code § 5.205(a). Any insurer recouping the fee “must include on or with each motor vehicle insurance policy ... a notice conforming with either paragraph (1) or paragraph (2)” of the rule. Id. § 5.205(b). These notices inform the policyholder that the ATPA fee “is payable in addition to the premium due under” the policy. Id. § 5.205(b)(1), (2).

To the extent that rule 5.205 allows insurers to recoup the ATPA fee within the regulated rate and mandates only that insurers include a written notice to consumers if they do so, the rule is valid. We overrule Liberty Mutual’s second issue.

Breach of Contract

In its brief, Liberty Mutual states a third issue in this way: ‘Whether there is any evidence that Liberty Mutual breached an automobile insurance contract or unlawfully charged the ATPA fee.” However, Liberty Mutual presented no argument on this issue, either in the form of cited authority or argument concerning the record. See Tex.R.App. P. 38.1(h). Bare assertions of error, without citations to authority, waive error. Trenholm v. Ratcliff 646 S.W.2d 927, 934 (Tex.1983); see also Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (appellate court has discretion to waive issues due to inadequate briefing). We overrule Liberty Mutual’s third issue.

CONCLUSION

We hold that the rate approved by the commissioner of insurance under article 5.101 of the insurance code is the only amount that an automobile insurer may lawfully charge a policyholder. In a regulated insurance industry, consumers may expect that their total charge has been approved by the commissioner. Article 21.35B of the insurance code, in permitting insurers to collect several types of “payment” from a policyholder, limits the discretion of the commissioner in considering factors when setting or approving rates. Thus, the Automobile Theft Prevention Authority fee, regardless of its status as a tax or another type of charge, must be included in the article 5.101 rate if it is to be charged to a policyholder. As a result, Liberty Mutual must include the ATPA fee in its article 5.101 rate in order to charge it to policyholders.

We also conclude that the commissioner’s rule allowing insurers to recoup the ATPA fee from policyholders within the regulated rate does not contradict the legislature’s statutory scheme of regulation. See 28 Tex. Admin. Code § 5.205. Rule 5.205 does not validate collection of the ATPA fee outside of the article 5.101 regulated rate. In addition, the rule is void to the extent that it could be read to permit that method of collection.

We affirm the judgment of the district court.

      . The department of insurance publishes the Texas Automobile Rules and Ratings Manual, in which it lists as “Rule 15” language identical to that of rule 5.205. As a result, any discussion in this opinion concerning rule 5.205 will also apply to the language contained in the Texas Automobile Rules and Ratings Manual.

      . Griesing also sued four related Liberty Mutual entities: Liberty Insurance Corporation, Liberty Mutual Fire Insurance Company, LM Insurance Corporation, and First Liberty Insurance Corporation. Because all appellants bring this appeal as one entity, we will refer to them as "Liberty Mutual.” Liberty Mutual is a rate-regulated automobile insurer subject to article 5.101 of the insurance code. See Tex. Ins.Code Ann. art. 5.101 (West Supp. 2004).

      . The district court granted permission to bring this interlocutory appeal. A district court may issue a written order for interlocutory appeal in a civil action not otherwise appealable if the parties agree that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(d) (West Supp.2004). If application is made to the court of appeals with appellate jurisdiction over the action no later than the tenth day after such order is entered, the appellate court may permit an appeal. Id. § 51.014(f). In this case, we granted Liberty Mutual’s properly submitted application.

      . "County mutual” or "non rate-regulated” automobile insurers are the other statutorily recognized form of automobile insurer and are governed by chapter 912 of the insurance code. See Tex. Ins.Code Ann. §§ 912.001-.804 (West 2004).

      . Before 1991, the insurance business was regulated by the three-member board of insurance and a commissioner of insurance, who was appointed by the board. In 1991, the legislature created the department of insurance. See Act of May 27, 1991, 72d Leg., R.S., ch. 242, § 1.01, 1991 Tex. Gen. Laws 939, 939. Two years later the legislature abolished the Board. Act of May 30, 1993, 73d Leg., R.S., ch. 685, § 1.02, 1993 Tex. Gen. Laws 2559, 2561. All statutory references to the board of insurance are now deemed to refer to the department of insurance or the commissioner of insurance, as consistent with the respective duties of each. See Tex. Ins.Code Ann. § 31.007 (West 2004).

      . In its brief. Liberty Mutual refers to the article 5.101 rate as a "premium rate.” That term does not appear in the statute. See Tex. Ins.Code Ann. art. 5.101 (West Supp.2004).

      . We note that our conclusion is consistent with American Alliance Insurance Co. v. Board of Ins. Commissioners, 126 S.W.2d 741 (Tex.Civ.App.-Austin 1939, writ refd), because our reading of articles 5.101 and 21.35B requires the commissioner of insurance to include taxes when setting the benchmark rate and when approving a filed rate.

      . Rule 5.205 requires the insurer to state on the automobile policy either
      NOTICE: A fee of $ is payable in addition to the premium due under this policy. This fee reimburses the insurer, as permitted by 28 TAC § 5.205, for the $ 1.00 fee per motor vehicle year required to be paid to the Automobile Theft Prevention Fund under Texas Civil Statutes, Article 4413(37), § 10, which became effective on June 6, 1991
      or
      NOTICE: The Automobile Theft Prevention Authority fee is payable in addition to the premium due under this policy. This fee reimburses the insurer, as permitted by 28 TAC § 5.205, for the $ 1.00 fee per motor vehicle year required to be paid to the Automobile Theft Prevention Fund under Texas Civil Statutes, Article 4413(37), § 10, which became effective on June 6, 1991.
      28 Tex. Admin. Code § 5.205(b)(1), (2) (2002).


author: DAVID PURYEAR, Justice.

text:
    SERVICE LIFE AND CASUALTY INSURANCE COMPANY, Appellant, v. Jose MONTEMAYOR, Commissioner of Insurance and the Texas Department of Insurance, Appellees.
    No. 03-03-00632-CV.
    Court of Appeals of Texas, Austin.
    Aug. 26, 2004.

      Anthony Icenogle, DeLeon, Boggins & Ieenogle, PC, Austin, for Appellant.
    Sarah C. Wells, Asst. Atty. Gen., Austin, for Appellees.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

This appeal presents a familiar issue: whether an insurance company may charge a poUcy fee in addition to the premium rate set by the Commissioner of Insurance (the “Commissioner”). Appellant Service Life and Casualty Insurance Company (“Service Life”) sought approval from the Texas Department of Insurance (the “Department”) to charge a $50 policy fee in addition to its premium rate. After the Commissioner disapproved the policy fee, Service Life sought review of the Commissioner’s decision through an administrative hearing. The administrative law judge opined that Service Life failed to establish legal authority to charge the policy fee, and the Commissioner signed an order agreeing with the administrative law judge. Service Life then sought review of that order in district court; the court denied Service Life’s request for relief. It is from this judgment that Service Life appeals. We affirm the district court’s judgment.

DISCUSSION

Service Life’s single issue on appeal is whether the district court failed to correctly interpret and apply the insurance code with regard to Service Life’s proposed policy fees. Statutory construction presents a question of law, which we review de novo. Texas Dep’t of Transp. v. Needham, 82 S.W.Sd 314, 318 (Tex.2002). Our objective when we construe a statute is to determine and give effect to the legislature’s intent. See Liberty Mut Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Any resolution of an issue of statutory construction must begin with an analysis of the statute. See Renaissance Park v. Davila, 27 S.W.3d 252, 256 (Tex.App.-Austin 2000, no pet.); Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744, 762 (Tex.App.-Austin 2000, pet. denied). We must look at the insurance code as a whole instead of analyzing individual provisions in isolation from each other. See Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). We are to consider, among other factors, the language of the statute, legislative history, the nature and object to be obtained, and the consequences that would follow from alternate constructions, even when a statute is not ambiguous on its face. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). In case of conflict between a general statutory provision and a special provision addressing the same subject, the special provision controls the general. Brazoria County v. Texas Comm’n on Evntl. Quality, 128 S.W.3d 728, 738 (Tex.App.-Austin 2004, no pet.); Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930, 933 (Tex.Civ.App.-Austin 1968, no writ).

The Act for the Regulation of Credit Life Insurance and Credit Accident and Health Insurance (the “Act”) applies to charges relating to credit life and credit accident and health insurance. Tex. Ins. Code Ann. § 1153.004(a) (West 2004). Its purpose is “to promote the public welfare by regulating credit life insurance and credit accident and health insurance.” Id. § 1153.002(a) (West 2004). To effectuate this purpose, the Act should be construed liberally. Id. § 1153.002(c).

According to the Act, the Commissioner may adopt a presumptive premium rate for various classes of business and terms of coverage after notice and a full hearing. Id. § 1153.103(a) (West 2004). The Commissioner must consider any relevant data in setting the presumptive premium rate, including “reasonable acquisition costs, loss ratios, administrative expenses, reserves, loss settlement expenses, the type or class of business, the duration of various credit transactions, and reasonable and adequate profits to the insurers.” Id. § 1153.103(d). Credit insurers may charge premiums up to thirty percent above or below the presumptive premium rate. Id. § 1153.105 (West 2004). Also, credit insurers may appeal the presumptive premium rate by filing suit in a Travis County district court. Id. § 1153.104 (West 2004). Finally, an insurer may file with the Commissioner a rate that is thirty percent higher or lower than the presumptive premium rate, which may be approved if aetuarially justified. Id. § 1153.106 (West 2004).

Service Life is currently charging the maximum thirty percent over the presumptive premium rate. It argues, however, that in addition to this premium rate, it should be allowed to charge a policy fee, citing article 21.35B of the insurance code. The article provides in pertinent part:

Art. 21.35B. Permissible Payments

(a) No payment may be solicited or collected by an insurer, its agent, or sponsoring organization in connection with an application for insurance or the issuance of a policy other than:
(1) premiums;
(2) taxes;
(3) finance charges;
(4) policy fees;
(5) agent fees;
(6) service fees, including charges for costs described under Article 21.35A of this code;
(7) inspection fees; or
(8) membership dues in a sponsoring organization.

Tex. Ins.Code Ann. art. 21.35B (West Supp.2004) (emphasis added). Service Life argues that by listing premiums and policy fees as separate items that the insurance company is permitted to charge, article 21.35B makes a clear distinction between premiums and policy fees. The Act, however, authorizes the Commissioner to establish only a premium, not a policy fee. Thus, the Act should not be construed to deny an insurer the ability to charge policy fees in addition to premiums. In other words, Service Life argues that although the purpose of the Act is intended to regulate credit life insurance and credit accident and health insurance, it may only regulate premiums, not policy fees.

Today, in Liberty Mutual Insurance Co. v. Griesing, 150 S.W.3d 640, No. 03-03-00646-CV, 2004 WL 1898239 (Tex.App.Austin Aug. 26, 2004, no pet. h.), we considered a similar issue, construing article 21.35B of the insurance code. In that case, Griesing challenged her auto insurer’s imposition of a state-mandated fee in addition to her auto insurance rate. As with the life insurance industry, the Commissioner annually sets a benchmark rate for each line of automobile insurers; auto insurers may charge rates up to thirty percent above or below the benchmark rate set by the Commissioner. In determining this rate, the Commissioner may consider a number of factors. In defense of its attempt to impose a fee in addition to the rate set by the Commissioner, Liberty Mutual, Griesing’s auto insurer, presented an argument in that case similar to the one presented by Service Life here: Because article 21.35B listed both premiums and taxes as permissible items that an insurance company may charge, Liberty Mutual should be allowed to charge its customers both the insurance rate set by the Commissioner as well as a tax (the state-mandated fee). We concluded, however, that the rate is “the charge” for a line of insurance. Article 21.35B acts only “as a limit on the ability of the commissioner to consider or of an insurer to include the costs of business in establishing a rate,” and that an insurer “may only include those [21.35B] costs when filing rates with the commissioner.” Id. at 10.

Similarly, we conclude that article 21.35B is not intended to allow insurers to raise revenues by circumventing rate-regulation requirements. Rather, article 21.35B speaks only generally to the types of payments that insurers are permitted to solicit or collect and forbids all types of payments other than those listed in the statute. It does not, however, entitle insurers to charge policyholders for every item listed in the statute. Indeed, the statute is included under the subchapter, “Miscellaneous Provisions,” suggesting that it is a general provision and not part of a specific regulatory scheme.

The Act, in contrast, specifically sets out the manner in which insurers may collect payment. And under the more specific Act, credit life insurance and credit accident and health insurance are strictly regulated. In keeping with the Act’s regulatory purpose, the Commissioner is authorized to determine a presumptive premium rate, which is “the charge” for credit life insurance and credit accident and health insurance. In determining this rate, the Commissioner must consider any relevant data. See id. at 9. And among the data that may be considered are the items listed in article 21.35B that a credit life insurance company or a credit accident and health insurance company may charge; these items, if allowed, would be included in the presumptive premium rate, not as separate fees, because the presumptive premium rate is the method by which the Act authorizes these insurance companies to collect their payments.

We note that among the items listed as permissible charges, article 21.35B includes “agent fees.” Tex. Ins.Code Ann. art. 21.35B(a)(5). Section 1153.103(e) of the Act, however, also authorizes the Commissioner to consider agent fees in determining the presumptive premium rate. Tex. Ins.Code Ann. § 1153.103(e) (“In determining the presumptive premium rate, the commissioner ... may request from an insurer or agent any relevant data relating to the presumptive premium rate, including information relating to compensation paid for the sale of credit insurance, expenses, losses, and profits.”). Assuming the Commissioner did consider agent fees in determining the presumptive premium rate, Service Life’s reading of article 21.35B would allow insurers to collect agent fees twice — once as part of the presumptive premium rate and again as an additional fee authorized by article 21.35B. Such an interpretation conflicts with the Act’s stated intent of promoting public welfare by regulating credit life insurance and credit accident and health insurance.

Finally, even if article 21.35B and the Act could not be construed so as to avoid conflict, because the Act is more specific than the general article 21.35B, the provisions in the Act must prevail as an exception to the general provision. See Brazoria County, 128 S.W.3d at 738. We therefore overrule Service Life’s single issue on appeal.

CONCLUSION

We hold that the Act for the Regulation of Credit Life Insurance and Credit Accident and Health Insurance authorizes the Commissioner to set the presumptive premium rate for credit life insurers and credit accident and health insurers. Insurers may charge up to thirty percent above this rate, but may not charge additional fees in order to exceed the thirty percent ceiling. Article 21.35B does not allow the insurers to circumvent the presumptive premium rate by charging additional fees listed in that statute. We therefore affirm the district court’s judgment, denying Service Life’s request to reverse the Commissioner’s order.

      . Service Life also directs us to the finance code in support of its argument. Section 348.202 of the code permits the sale of credit life insurance and credit health and accident insurance in connection with a loan and provides that the cost of the insurance as well as a policy or agent fee charged in connection with the insurance may be included in the loan contract. Tex. Fin.Code Ann. § 348.202(c) (West Supp.2004). Service Life contends that this statute evidences the legislature’s intent to permit credit life and credit health and accident insurance companies to charge both a premium rate and an additional policy fee. Section 342.407 of the code, however, sets out the requirements for including an insurance charge in a loan contract, including that the insurance must be written "in accordance with the Insurance Code.” Id. § 342.407 (West Supp.2004). Thus, the finance code specifically defers to the insurance code for authorization of insurance charges. We therefore disagree with Service Life’s contention that section 348.202 of the finance code is dispositive of the issue presented here.