source: Caselaw Access Project

author: Justice WRIGHT.

license: Public Domain

text:
    CENTRAL FOREST S/C PARTNERS, LTD., Appellant, v. MUNDO-MUNDO, INC., Appellee.
    No. 05-04-01461-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 7, 2005.
    Rehearing Overruled March 1, 2006.

      Catherine Kays, Geary Porter & Dona-van, P.C., Addison, for Appellant.
    Robert M. Jones, Kelvin Malone, Mun-do-Mundo, Inc., Dallas, for Appellee.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice WRIGHT.

Central Forest S/C Partners, Ltd. (Central) appeals an award of attorney’s fees in favor of Mundo-Mundo, Inc. (Mundo) following a bench trial. In five points of error, Central contends: (1) the trial court erred in awarding attorney’s fees because Mundo did not prevail on any claim for which attorney’s fees are recoverable; (2) the trial court erred in awarding Mundo declaratory relief; (3) the trial court erred in failing to award attorney’s fees to Central on its counterclaim; (4) the evidence is insufficient to support the findings of fact; and (5) the trial court erred in excluding certain evidence. We overrule Central’s points of error and affirm the trial court’s judgment.

Background

Mundo entered into an agreement to lease space in a shopping center owned by Central. Mundo used the space for its pet grooming and boarding business. Pursuant to the lease, Central was to reimburse Mundo for its build-out expenses. A dispute arose as to the last $10,000 of the build-out expenses. With respect to the money in dispute, Central claimed that it had paid $4,379.80 directly to a contractor. While negotiations for the remaining reimbursement continued, Central alleged that Mundo was in violation of the lease for failing to control the odor and noise levels. Mundo insisted it was not in breach of the lease and demanded payment and an accounting of all funds paid to any contractor.

Negotiations over reimbursement of the build-out expenses failed. Subsequently, Mundo filed suit to collect the money. Thirty-four days after suit was filed, Central sent a letter and check for $5,260.20 directly to Mundo as settlement for the $10,000. Mundo did not cash the check and the lawsuit continued. Central filed a counterclaim alleging Mundo breached the lease. Central sought termination of the lease and attorney’s fees.

Through discovery, Central finally produced evidence of the $4,379.80 payment to the contractor. Following a bench trial, the trial court issued a letter instructing Mundo to cash the check received after the lawsuit was filed in satisfaction of the money owed from Central. As a result of the trial court’s instructions, in its subsequent judgment, the trial court did not recite an award of damages to Mundo. The trial court did find that Mundo was not in breach of the lease, denied all relief requested by Central, and awarded attorney’s fees to Mundo as the prevailing party. This appeal timely followed.

Attorney’s Fees

In its first point of error, Central contends the trial court erred in awarding attorney’s fees to Mundo because Mundo did not prevail on any claim for which attorney’s fees are recoverable. Whether attorney’s fees are available under a particular statute is a question of law, which we review de novo. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999) (per curiam).

Attorney’s fees are not recoverable in Texas unless allowed by statute or by contract. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992). Attorney’s fees are recoverable in a suit on a contract. Tex. Civ. PRAC. & Rem.Code Ann. § 38.001(8) (Vernon 1997). To recover attorney’s fees under section 38.001, a party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997).

Following the trial, the trial court sent the parties a letter stating its ruling. The body of the letter states as follows:

Plaintiff will recover no damages, but only as conditioned below. The Court finds that Mr. Levering of Crawford Electric acknowledged receipt of the $4780.80 in Defendant’s Exhibit 9. As to the $5260.20, Plaintiff should negotiate that check immediately; if reissuance is required, this should be done immediately. If payment is not made on that check, or replacement check, as the case may be, then the Court will grant judgment for the $5260.20.
As to the injunction and declaratory judgment actions, Plaintiffs Declaratory Judgment request is granted. The Court finds Plaintiff, to not be in breach of the lease and further finds the Defendant’s termination of the lease to be of no force or effect. Plaintiffs request for a permanent injunction is denied.
Defendant’s request for relief is denied. As to attorney’s fees, Plaintiff will not receive attorney’s fees for the declaratory judgment. For filing the case to protect her rights under the lease, which the Court finds was immediately necessary under these circumstances, and for prevailing, the Court, after taking judicial notice of the evidence, the file, and reasonable and necessary fees in this County for eases of this type, awards the following, for Plaintiffs principal claim only: $25,000.00 through trial, $7500.00 through the Court of Appeals, $2500.00 for a Petition for Review, and $2000.00 if the petition is granted.
Plaintiffs counsel will draft a judgment for the Court’s consideration.

The trial court correctly recognized that Mundo had a valid claim at the time it commenced litigation. Mundo did as the trial court instructed and negotiated the check that Central tendered to Mundo after Mundo filed the lawsuit. The trial court’s judgment, signed twenty-seven days after its letter ruling, did not recite an award of damages because Central paid the damages prior to the entry of judgment.

The cases cited by Central are distinguishable. In Capital Metro. v. Central of Tennessee Railway and Navigation Co., 114 S.W.3d 573 (Tex.App.-Austin 2003, pet. denied), the jury found that both parties breached the contract but that Longhorn’s breach was excused. The jury awarded Longhorn in excess of one million dollars in lost profits and its attorney’s fees. Id. at 576. The court of appeals held that Longhorn did not present legally sufficient evidence of its lost profits and reversed the award. Because Longhorn was not entitled to any damages, the court of appeals held it was likewise not entitled to its attorney’s fees. Id. at 583.

Similarly, in Angelo Broadcasting, Inc. v. Satellite Music Network, Inc., 836 S.W.2d 726 (Tex.App.-Dallas 1992, pet. denied), overruled on other grounds by Hines v. Hash, 843 S.W.2d 464, 469-70 (Tex.1992), this Court reversed the damages awarded to Satellite Music on its unjust enrichment claim. Because Satellite Music was not entitled to damages, it was not entitled to recover attorney’s fees. Id. at 736. In another case out of this Court, the plaintiffs obtained a favorable jury finding on their breach of contract cause of action. However, they failed to submit a damage question to the jury. Rodgers v. RAB Investments, Ltd., 816 S.W.2d 543, 551 (Tex.App.-Dallas 1991, no pet.). This court held that without a jury finding of damages, they were not entitled to attorney’s fees. Id. Like these cases, the last case Central relies upon is also inapplicable. See Chapman Air Conditioning, Inc. v. Franks, 732 S.W.2d 737, 743 (Tex.App.-Dallas 1987, no writ). Franks merely stands for the proposition that under the Texas Free Enterprise and Antitrust Act of 1983, a party must first recover damages before it is entitled to attorney’s fees provided for in the Act. Chapman Air Conditioning, Inc. v. Franks, 732 S.W.2d 737, 743 (Tex.App.Dallas 1987, no writ).

In contrast to each of the parties in the above cases, Mundo prevailed on her cause of action and recovered something of value as a result of the lawsuit. The trial court pronounced in its letter ruling that Mundo was the prevailing party. Prior to entry of the judgment, Mundo did recover its damages as directed by the trial court in its letter ruling. Such procedure did not strip away Mundo’s status as the prevailing party. We overrule Central’s first point of error.

Breach of the Lease

In its third point of error, Central contends the trial court erred in failing to find that Mundo breached the lease and that Central was entitled to terminate the lease and recover its attorney’s fees. Central attacks the trial court’s findings in support of its conclusion that Mundo did not breach the lease in point of error four.

Findings of fact in a case tried to the court have the same force and effect as jury findings. See Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158 (Tex.App.-Dallas 1992, writ denied). We review a trial court’s fact findings by the same standards we use to review the sufficiency of the evidence to support a jury’s findings. See Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ).

When we review the findings for legal sufficiency, we consider only the evidence and inferences tending to support the finding and disregard all the evidence and inferences to the contrary. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). We uphold the finding if it is supported by more than a scintilla of evidence. Id. When reviewing findings of fact for factual sufficiency, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

Central complains of the trial court’s findings that Mundo did not breach the lease. Specifically, the trial court found that Mundo did not fail to: (1) clean up animal waste in the common areas of the property; (2) wash trash and/or waste to the appropriate sewers or drains; and (3) keep the noise of barking dogs and dog odors from emanating from the leased premises to other tenants.

The complaints regarding Bark & Purr came from Ashton Podiatry which leased the space directly next to Bark & Purr. Beth Connett is a regional property manager for Henry S. Miller. Her job responsibilities included maintaining Central’s property and policing the leases. She testified that she noticed the smell and the barking when she visited Ashton Podiatry to address the doctors’ complaints. On one visit, she said the odor was so bad she vomited. Despite this testimony, Connett wrote a letter to Dr. Roy Ashton after her visits. In this letter she stated, “we were unable to detect any evidence of odor or noise.” On cross-examination, Connett admitted the statement was not true and that she wrote the letter at the direction of her supervisors.

Dr. Scott Ashton and Dr. Roy Ashton testified that the barking and odors were a continuous problem. They also testified that these problems adversely impacted their business. In addition, the doctors testified that animal waste littered the common areas of the property.

The trial court heard conflicting testimony from Mundo’s witnesses. Two clients of Bark and Purr testified that the facilities were clean and odorless. Harley Wil-ley, a patient of Ashton Podiatry and a chent of Bark and Purr testified that he never noticed either an odor or barking at Ashton Podiatry. Kathy Whipple, another patient of Ashton Podiatry and chent of Bark and Purr, testified that she never smelled any odor at the doctor’s office. She testified that on one occasion she heard a faint barking sound.

Minerva Mundo-Mundo, co-owner of Bark & Purr, testified that her employees cleaned the common areas three or four times a day. Edgar Ivarrola, a former groomer at Bark and Purr testified that any animal waste in the common areas were immediately cleaned up. We conclude the evidence is both legally and factually sufficient to support findings of fact one, seven, eight, nine, ten, and twenty.

Central also contests the trial court’s findings that Central breached the lease by fading to pay money due under the contract. The evidence established that Central owed Mundo $5,260.20 as the remainder of the build-out allowance. Mundo filed the lawsuit to recover the money owed under the lease. After filing the lawsuit, Central tendered the $5,260.20 it admittedly owed under the lease. The trial court correctly found in its second and third findings of fact that Central breached the lease by failing to pay sums due.

Central contends the evidence is insufficient to support the trial court’s findings that it breached the lease by attempting to terminate the lease and by interfering with Mundo’s peaceful use of the premises. We have determined that the evidence is sufficient to support the trial court’s findings that Mundo did not breach the lease. Because Mundo was not in breach of the lease, Central breached the lease by attempting to terminate it. The evidence is sufficient to support findings of fact eleven, twelve, and thirteen.

In finding of fact fourteen, the trial court found that Central’s breach of the lease caused damage to Mundo. Central contends the evidence is insufficient to support this finding because the build-out allowance had been paid in full. The evidence showed that after Mundo filed its lawsuit against Central, Central tendered a check for the balance of the build-out allowance to Mundo. The check had not been negotiated. The evidence did not establish that the money owed had been paid before suit, but rather, that the money owed was tendered after the lawsuit was filed. We conclude the evidence is sufficient to support the trial court’s fourteenth finding of fact.

Finally, Central contests the trial court’s findings that Connett admitted that she considered lying permissible and that the court found her testimony was not credible. Central contends these matters are not proper subjects for fact findings.

In a bench trial, it is the duty of the trial court to pass on the credibility of the witnesses and on the weight to be given their testimony. Tex. W. Oil & Gas Corp. v. El Paso Gas Transp. Co., 631 S.W.2d 521, 524 (Tex.App.-El Paso 1982, writ ref'd n.r.e.). A trial court can reject or accept the testimony of any witness in whole or in part. Connett’s credibility was called into doubt. She first stated that she would not lie to a tenant. Later, she stated that her statement to Ashton Podiatry that she had not detected any odor on her visits was not true. She testified that she wrote the statement because her supervisor instructed her to do so. The evidence is sufficient to support the trial court’s findings as to Connett. Although not required, a trial court may make findings on evidentiary matters. See In re Marriage of Becerra, 100 S.W.3d 637, 640-41 (Tex.App.-Texarkana 2003, no pet.). We conclude the evidence is sufficient to support the trial court’s findings with respect to Connett and her testimony. We overrule Central’s fourth point of error.

Exclusion of Evidence

In its final point of error, Central complains of the trial court’s exclusion of an audiotape of barking dogs and a log of patients’ complaints maintained by Ashton Podiatry’s supervisor.

We review a trial court’s rulings in admitting or excluding evidence under an abuse of discretion standard. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). To reverse an erroneous evidentiary ruling, an appellant must not only establish error but also show the error was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Tex.R.App. P. 44.1; McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992). Before harm may be established, however, the entire record must be examined to determine whether any excluded evidence was controlling on a material issue and not cumulative of other evidence. See Williams Distrib. Co., v. Franklin, 898 S.W.2d 816, 817 (Tex.1995).

Vicki Haiduk, clinical supervisor at the podiatry office, testified as to both the noise level and complaints received from patients about both the noise and odor. Dr. Scott Ashton and Dr. Roy Ashton also testified about the noise level and odors. They testified as to the impact the barking and odors had on them, their employees, and their patients. The excluded evidence, an audiotape of the barking dogs and a complaint log, is merely cumulative of the testimony provided by Haiduk and the doctors. Therefore, any error in the exclusion of this evidence, was harmless. We overrule Central’s fifth point of error.

We affirm the trial court’s judgment.

      . In its second point of error, Central contends Mundo was not entitled to attorney’s fees under the Declaratory Judgments Act. The trial court stated that it was not awarding attorney’s fees pursuant to that Act. Accordingly, Central's second point of error is moot.


text:
    Randi PIERCE d/b/a Flowers For You, Inc. d/b/a Your Florist, Appellant, v. The STATE of Texas, Appellee.
    No. 05-04-01208-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2005.
    Rehearing Overruled March 2, 2006.

      Jules P. Slim, Irving, for Appellant.
    Phillip Ledbetter, Asst. Atty. Gen., Consumer Protection Division, Dallas, for State.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice WRIGHT.

In this interlocutory appeal, we must determine whether the trial court erred in granting the State of Texas’s request for a temporary injunction and asset freeze. In five points of error, Randi Pierce contends generally: (1) the State lacks standing to bring this action; (2) the trial court erred in granting the temporary injunction by only considering affidavit testimony; (3) the trial court erred in granting the temporary injunction in the absence of an allegation that Pierce committed any wrongdoing; and (4) the trial court erred in freezing Pierce’s assets. We overrule Pierce’s points of error and affirm the temporary injunction.

Background

Pierce operates a floral shop known as Your Florist. She allows her customers to pay for their purchases with credit/debit cards. The State received numerous complaints from customers of Your Florist about unauthorized charges on their credit/debit cards. These customers purchased flowers from Your Florist and paid for those purchases with their credit/debit cards. Subsequently these customers began noticing additional charges on their credit/debit card statements despite the fact that they had not made or authorized any additional purchases. Upon noticing these unauthorized charges, these customers complained to Pierce and sought reimbursement. Pierce was generally evasive and unresponsive to the majority of the complaints. Many customers had no recourse but to cancel their credit card accounts or obtain new account numbers. Those who did not do so, sometimes saw yet additional unauthorized charges on their accounts.

Faced with numerous complaints about these practices of Pierce’s business, the State sued Pierce alleging violations of the Deceptive Trade Practices Act. The trial court issued a temporary restraining order with asset freeze and set the case for a hearing on the State’s application for a temporary injunction. Following the hearing, the trial court issued the temporary injunction with asset freeze. This interlocutory appeal timely followed.

Temporary Injunction

1. Standing

In her second point of error, Pierce contends the Attorney General lacks standing to bring this action. Specifically, Pierce contends that making unauthorized charges on customers’ credit cards is not an unlawful practice under the DTPA.

The attorney general may bring an action in the name of the state against any person he believes is engaged in unlawful practices under the Deceptive Trade Practices Act. See Tex. Bus. & Com.Code Ann. § 17.47(a) (Vernon Supp.2005). The DTPA provides a noninclusive list of unlawful practices. Among the unlawful practices listed are:

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed; ...

Tex. Bus. & Com.Code Ann. § 17.46(b) (Vernon Supp.2005).

Pierce contends the DTPA does not authorize the State to bring an enforcement action relating to an alleged taking of money by unauthorized credit and debit card transactions. Pierce contends that the alleged unauthorized use of the customers’ credit cards is not a service within the meaning of the DTPA. We disagree.

In its petition, the State alleged that Pierce engaged in the following unlawful practices: (1) placing unauthorized charges on the florist customers’ credit cards; (2) falsely representing to credit card companies that the customers approved the unauthorized charges; (8) falsely representing that customers who purchase goods from the florist are obligated to pay for additional unauthorized charges to their credit cards; and (4) failing to disclose that Pierce, the florist, or its employees may make unauthorized charges on the customers’ credit cards in order to induce them to enter into sales transactions that they otherwise would not have entered into had that information been disclosed.

Allowing her customers to pay with their credit cards is part of the service Pierce provided in making sales transactions. Without a sales transaction, the deception would not have occurred. In the minds of the customers, payment for the goods with a debit/credit card concluded the sales transaction. However, without telling its customers, Pierce allegedly made additional charges on the customers’ credit cards for goods which were neither requested nor received. Had the customers known this information, they would not have purchased flowers from Your Florist.

These allegations do constitute unlawful practices under the DTPA. They constitute a deceptive act involving a service and a sales transaction. Therefore, we conclude the attorney general did have standing to bring this action in the name of the State. We overrule Pierce’s second point of error.

2. Evidence to Support the Temporary Injunction

In her first point of error, Pierce contends the trial court erred in granting the temporary injunction because there was no evidence to support it. Pierce argues that the only evidence at the hearing were affidavits which, as a matter of law, cannot support a temporary injunction.

To review a “matter of law” challenge, the court must first examine the record to determine whether there is any evidence to support the challenged finding. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the finding, then the court must determine whether there is evidence to support the opposite finding. Id. If there is any evidence of probative force to support the challenged finding, then the “matter of law” challenge must fail. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

In its order setting the date for the temporary injunction hearing, the trial court ordered that all testimony was to be reduced to affidavits or deposition excerpts. Pierce contends that a temporary injunction cannot issue on affidavit testimony alone. She cites two cases to support her contention. See Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683 (Tex.1968); Texas State Bd. of Educ. v. Guffy, 718 S.W.2d 48 (Tex.App.-Dallas 1986, no writ). Both cases, however, are distinguishable. In Millwrights, Rust Engineering sought a temporary injunction to prevent union members from picketing on its property. Millwrights, 433 S.W.2d at 684. Rust Engineering did not present any evidence at the temporary injunction hearing. The issue before the supreme court was whether the applicant’s sworn petition could be treated as an affidavit and constitute sufficient evidence to support the temporary injunction. Id. at 686. The supreme court analyzed the requirement of a hearing in rule 680 and concluded that “the conduct of a “hearing” implies that evidence will be offered.” Id. at 687. In reaching its holding, the supreme court noted that although a temporary restraining order may issue on a sworn petition, a temporary injunction requires evidence admitted at a hearing. Id. at 686-87; see also In re Texas Natural Resource Conservation Comm’n, 85 S.W.3d 201, 204 (Tex.2002).

In Guffy, a teacher, Freeman Guffy, obtained a temporary injunction preventing the enforcement of a new testing requirement for teachers. Guffy, 718 S.W.2d at 49. Like the plaintiff in MilVwrights, however, Guffy failed to present any evidence at the temporary injunction hearing. Id. Accordingly, following the supreme court’s holding in Millwrights, this Court dissolved the temporary injunction. Id. at 50. See also Bay Fin. Sav. Bank, F.S.B. v. Brown, 142 S.W.3d 586, 589-90 (Tex.App.-Texarkana 2004, no pet.) (temporary injunction dissolved where movant offered no evidence at the hearing and where it appeared trial court considered only the documents attached to the verified motion for temporary injunction).

In contrast to Millwrights and Guffy, evidence was introduced and admitted at the temporary injunction hearing in this case. The trial court stated that it would consider affidavit testimony and deposition excerpts at the hearing. The State presented affidavit testimony at the temporary injunction hearing. The trial court admitted the affidavits into evidence. Pierce objected to the trial court’s reliance on affidavits. Pierce wanted the opportunity to present five witnesses. In response, the trial court gave the parties the opportunity to return the following day and present five testimony. Neither party took advantage of this opportunity.

The record before this Court contains the affidavit evidence admitted during the temporary injunction hearing. We conclude a trial court may issue a temporary injunction based on affidavit testimony admitted into evidence at the hearing thereon. Pierce has not cited any authority to the contrary.

Because there is evidence to support the temporary injunction, Pierce’s “matter of law” challenge fails. We overrule Pierce’s first point of error.

3. Allegations of Wrongdoing by Pierce

In her third point of error, Pierce contends the issuance of the temporary injunction was improper because there is no verified allegation that any wrongful act was committed by Pierce herself or that she should be held responsible for the intentional wrongful acts of any of her employees.

We review a trial court’s order granting or denying a request for a temporary injunction under an abuse of discretion standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993); Walter v. Walter, 127 S.W.3d 396, 398 (Tex.App.-Dallas 2004, no pet.). The reviewing court should reverse an order granting injunctive relief only if the trial court abused its discretion in granting said relief. Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 58.

The affidavits submitted with the petition for temporary restraining order and asset freeze contain numerous allegations against Pierce. Nancy Saltzman stated in her affidavit that she spoke with Pierce about the unauthorized charges on her credit card. Pierce promised to research the unauthorized charges and call her back to facilitate reimbursement. Pierce never called her back. Mary Nicole Sladovnik testified that she too spoke with Pierce about an unauthorized charge. Although Pierce promised to credit her account for the unauthorized charge and call her back, she did neither. The State filed the affidavit of Gene Hempy prior to the temporary injunction hearing. Hempy is a freelance floral designer who worked at Your Florist on a seasonal basis. While employed at Your Florist, employees told Hempy that Pierce ran unauthorized charges on customers’ credit cards. When customers came in to complain about the unauthorized charges, Pierce told her employees to lie and say that she was not in. She also hid in the back of the store or left the store in order to avoid the complaining customers. Each of these affidavits was admitted into evidence at the temporary injunction hearing.

Contrary to Pierce’s contention, there were numerous verified allegations introduced into evidence that Pierce engaged in deceptive trade practices. We conclude the trial court did not abuse its discretion in issuing the temporary injunction. We overrule Pierce’s third point of error.

Asset Freeze

In her final two points of error, Pierce asserts the trial court erred in imposing the asset freeze. Specifically, Pierce contends this was error because the State did not request such relief and because it does not preserve the status quo.

In its petition and application for temporary restraining order and asset freeze, the State specifically requested that Pierce’s assets “be frozen during the pen-dency of these legal proceedings to preserve monies for consumer restitution upon final judgment.” This request is under the heading “Application for Ex Parte Temporary Restraining Order, Temporary Injunction, and Permanent Injunction and Asset Freeze.” The State also argued at the hearing that Pierce’s assets should be frozen in order to preserve money for repayment to victimized customers and, also, to prevent further unauthorized charges by Pierce. We find no merit to Pierce’s argument that the State did not ask the trial court to freeze the assets.

We turn now to Pierce’s second argument that the asset freeze fails to preserve the status quo. The purpose of a temporary injunction is to maintain the status quo. In re Newton, 146 S.W.3d 648, 651 (Tex.2004). Status quo is defined as “the last, actual, peaceable, non-contested status which preceded the pending controversy.” Id. By definition, continuation of illegal conduct cannot be justified as preservation of the status quo. Id. When it is determined that the law is being violated, it is the duty of the court to restrain it. Rattikin Title Co. v. Grievance Comm. of State Bar of Texas, 272 S.W.2d 948, 955 (Tex.Civ.App.-Fort Worth 1954, no writ).

At the temporary injunction hearing, the trial judge stated that the only way to prevent Pierce from continuing to make unauthorized charges to customers’ credit cards is “to prevent her access to a financial institution.” The asset freeze imposed by the trial court prevented Pierce from continuing to make unauthorized charges on customers’ credit cards. Preserving the status quo of Pierce and her business could not as a matter of law include the continuation of making unauthorized charges on customers’ credit cards. Accordingly, imposing a freeze to prevent such conduct did not disrupt the status quo. We conclude the trial court did not abuse its discretion in issuing the temporary injunction with asset freeze. We overrule Pierce’s fourth and fifth points of error.

We affirm the temporary injunction with asset freeze.

      . The temporary injunction with asset freeze prohibits Pierce from:
      A. transferring, spending, concealing, encumbering, withdrawing, removing, or allowing the transfer, removal, or withdrawal from any financial institution or from the jurisdiction of this Court, any money, stocks, bonds, assets, notes, equipment, funds, accounts receivable, policies of insurance, trust agreements, safe deposit boxes, or other property, real, personal, or mixed, wherever situated, belonging to or owned by, in the possession or custody of, standing in the name of, or claimed by said Defendant without further order of this Court; ...


author: Justice ROSS. Justice CARTER.

text:
    Carmon KENNEDY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00159-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted July 26, 2005.
    Decided Dec. 7, 2005.
    Rehearing Overruled Jan. 11, 2006.

      Stephanie Potter Black, Texarkana, for appellant.
    Adam 0. Fellows, Nicole Habersang, Asst. Dist. Atty’s, Texarkana, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Cannon Kennedy was indicted on one count of indecency with a child by exposure, four counts of indecency with a child by contact, and four counts of aggravated sexual assault of a child. He entered pleas of not guilty before a jury on all counts. The jury returned verdicts of guilty on all nine counts and assessed punishment at twelve years’ imprisonment for each of the five counts of indecency with a child, sixty years’ imprisonment for two of the aggravated sexual assault convictions, and ninety-nine years’ imprisonment for the other two aggravated sexual assault convictions. The trial court sentenced Kennedy accordingly, ordering that the nine sentences run concurrently. Kennedy now appeals the trial court’s judgment, contending the trial court abused its discretion in excluding evidence of specific instances of the complainant’s past sexual behavior and in excluding hearsay concerning what the complainant had said to her friends about needing to testify to the same stories in court. We affirm.

I. Factual Background

A. A.C.’s Account

In 1999, thirty-one-year-old Kennedy moved in with the family of eleven-year-old A.C. in Bowie .County, According to A.C., a couple of months after he moved in, Kennedy began to come into her room at night and sexually abuse her. The abuse began with back rubs under her shirt during which he would move to her front, fondling her breasts. He then began to “mess[ ] with [her] privates,” digitally penetrating her. A.C.’s family moved to Georgia for a brief period and then returned to Bowie County. Kennedy moved back in with the family and began to masturbate in front of A.C. and would place her hand on his penis to masturbate him. Then the abuse progressed to oral sex and, finally, intercourse. A.C. testified Kennedy would ejaculate on her abdomen and clean her up with a towel. She testified the abuse was frequent over the years, progressing to three or four nights a week. She testified he did not say anything to her during the abuse. After he was done, he would kiss her on the forehead and tell A.C. that he loved her. Finally, A.C. told a friend, who persuaded A.C. to talk to the friend’s mother. The friend’s mother talked A.C. into discussing the abuse with a pastor and, later, disclosing the abuse to the police.

B. State’s Medical Testimony

The trial court admitted the testimony of nurse Becky Francis. She testified that, during her examination of A.C., she noted a well-healed laceration in A.C.’s hymen and that this well-healed tear was consistent with AC.’s account of abuse.

C. Kennedy’s Contentions

Kennedy complains of the trial court’s exclusion of certain evidence that, Kennedy argues, would rebut or explain the State’s medical evidence. According to Kennedy, the trial court also excluded evidence that would demonstrate A.C. had a motive to fabricate the allegations of abuse. Kennedy relies on Rules 412 and 803(24) to support his positions. See Tex.R. Evid. 412, 803(24).

II. Exclusion of Evidence Concerning Past Sexual Activity

A. Standard of Review

We review a trial court’s decision to exclude evidence for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990). A trial court abuses its discretion when its decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Shaw v. State, 122 S.W.3d 358, 363 (Tex.App.-Texarkana 2003, no pet.).

B. Evidence of Past Sexual Activity: Rule 412 Requirements

Rule 412 of the Rules of Evidence provides the following limitation on the admissibility of a victim’s past sexual conduct:

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D)is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.

Tex.R. Evid. 412(b). Kennedy’s contentions focus on subsections (2)(A) and (2)(C), so we will concentrate our discussion on those subsections.

C. Evidence of Thirty-Three Sexual Partners

Kennedy contends the trial court abused its discretion by excluding the following testimony from Raschella Lamp-kins, a former friend of A.C.: “And [A.C.] just — I said, what about you, and she said, well, I lost [my virginity] when I was thirteen, and I’ve had sex with thirty-three guys. That’s what she told me.” Lamp-kins testified A.C. did not specify a time frame during which she had these thirty-three partners. A.C. denied ever having made these statements to Lampkins.

1. Kennedy’s Argument

Kennedy contends this testimony would rebut or explain the State’s medical testimony from Francis that the well-healed tears in A.C.’s hymen are consistent with abuse. Kennedy relies on this Court’s decision in Reynolds v. State, 890 S.W.2d 156 (Tex.App.-Texarkana 1994, no pet.), to support his contention the trial court abused its discretion by excluding such evidence. In Reynolds, the state introduced medical evidence that the victim’s vaginal opening appeared to be slightly stretched. Id. at 157. The state’s medical report also included the victim’s denial of any other sexual abuse or consensual sexual activity. Id. Employing Rule 412, Reynolds sought to question the complainant regarding three prior sexual partners and to introduce a letter from the complainant to her grandmother documenting years of sexual abuse by another man. Id. Reynolds argued that this evidence would rebut or explain the state’s medical evidence supporting the victim’s allegations. Id.

Concluding that the excluded evidence would explain the state’s evidence of vaginal trauma and would rebut the complainant’s denial of any prior sexual abuse or activity, this Court held that the trial court did abuse its discretion by excluding this evidence under Rule 412 and that the error was not harmless. See id. at 157-58. This Court reversed the conviction and remanded the case for a new trial. Id. at 158.

Further, in Hood v. State, 944 S.W.2d 743 (Tex.App.-Amarillo 1997, no pet.), the state introduced medical evidence that established two, well-healed tears in the complainant’s hymen. Id. at 745. The tears appeared to have occurred “sixty days or more” before examination. Id. The tears, according to the state’s witness, demonstrated the complainant’s vagina had been penetrated. Id. On cross-examination, defense counsel learned the witness had inquired into the complainant’s sexual history. Id. Counsel then sought, but was denied, permission from the trial court to cross-examine the state’s witness on whether the complainant had disclosed any prior sexual activity. Id.

Outside the presence of the jury, defense counsel made his offer of proof, eliciting testimony from the state’s witness that the complainant “thought that she had” sexual intercourse. Id. The court concluded that any risk of prejudice contemplated by Rule 412 was already interjected into the evidence before the jury through evidence of the complainant’s pregnancy at age fifteen and her unmarried status. Id. at 746. Additionally, the state had relied heavily on the evidence of vaginal tears to prove Hood had penetrated the complainant’s vagina. Id. Relying on Reynolds and discounting the element of age into the Rule 412 balancing test, the court held that the prejudicial effect of the excluded evidence did not outweigh the probative value the evidence would offer and that the exclusion of such evidence was harmful error. Id. at 747.

In Miles v. State, 61 S.W.3d 682, 683-84 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd), the state introduced medical evidence there were a number of healed tears to the complainant’s hymen. While the doctor was unable to conclude exactly what caused the tears and when they occurred, she did testify the tears were more than a few days old, were of the type that almost never occur in cases of oral sex or fondling, and were most likely the result of penile penetration. Id. at 684. The doctor further testified the tears were consistent with the account the complainant told to her. Id.

Defense counsel sought permission to question the complainant regarding statements she had made to her cousin to the effect that she had sexual intercourse with an individual named Timmy. Id. at 685. During the trial court’s in camera investigation, the complainant denied having had sex with Timmy, but admitted she had told her cousin otherwise. Id. After the trial court elicited the complainant’s statement that she had lied to her cousin and that the appellant was the only person with whom she had had intercourse at the time of her examination, the trial court determined the evidence would be more prejudicial than probative and disallowed any questioning on the issue of past sexual conduct with Timmy. Id. Defense counsel then made a bill of exceptions containing the testimony from two of the complainant’s cousins that the complainant had had sexual intercourse with Timmy. Id.

The First Court of Appeals relied on the rationale in Reynolds and Hood to con-elude that the excluded evidence did fall within the category of evidence that would “explain or rebut” the state’s medical evidence. Tex.R. Evid. 412(b)(2)(A); Miles, 61 S.W.3d at 686. The court noted the cousins’ testimony .would likely be inadmissible hearsay falling within the Burks holding. Miles, 61 S.W.3d at 687. The complainant’s own testimony would not be inadmissible hearsay, however. So, the court went on to weigh the probative value of such evidence against its prejudicial effect. Id. Pointing to the complainant’s admission that she lied to her cousin about having had sex with Timmy, the court concluded the jury should have had the right to weigh the complainant’s credibility against that of Miles. For this reason, the court held the trial court abused its discretion by determining the evidence was more prejudicial than probative. Id.

2. Excluded Testimony Does Not Rebut or Explain Medical Evidence

Without evidence regarding when these alleged sexual encounters occurred, we cannot conclude this excluded evidence explained the State’s medical evidence. Unlike the letter in Reynolds in which the complainant described several years of sexual abuse by another man, Lampkins’ testimony fails to explain or rebut the State’s medical evidence. We note A.C. denied having had this conversation with Lampkins, thereby distinguishing this case from Miles, in which the complainant admitted having made the statement regarding prior sexual activity. Even taking this testimony as true, we still cannot determine whether the alleged thirty-three partners may have been had after the examination revealing the injuries to A.C.’s hymen, in which case, the evidence would be of no value. By contrast, in Reynolds, the letter is authored by the complainant herself and offers a more concrete time line with which to gauge whether the testimony actually explains the state’s evidence. Here, we do not have such information. The trial court did not abuse its discretion by excluding this evidence.

3. Excluded Evidence Constitutes Inadmissible Hearsay

The Waco court addressed a similar issue concerning Rule 412 with a different approach in Burks, 40 S.W.3d 698. In defense of allegations of sexual assault and indecency with a child, the defendant sought to admit a note by the complainant that described a prior sexual encounter with a person other than the defendant. Id. at 699. The court held that the note was inadmissible hearsay and that Rule 412 could not be used as a vehicle to gain admission of otherwise inadmissible evidence. Id. at 701. We agree and conclude Kennedy cannot use Rule 412 to get otherwise inadmissible hearsay before the jury. Even if the trial court had been incorrect in its application of Rule 412, we would uphold its ruling on this alternate theory. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

D. Testimony Regarding Alleged Sexual Activity Between A.C. and C.M.

In the in camera investigation, Lamp-kins testified to the following: “And then I got home and I asked her about it, and she said, well, he never raped me — the first time, she said, he never raped me; he came in and caught me in the bed with [C.M.], and he made [C.M.] leave.” Later, outside the presence of the jury, Lampkins initially testified Kennedy did see A.C. and C.M. having sex. A short time later, she clarified, testifying that Kennedy “caught [C.M.] pulling up his pants.” Kennedy contends the exclusion of this testimony was error.

Kennedy also complains of the trial court’s exclusion of Kennedy’s own version of events on this matter. While the trial court allowed Kennedy to testify to the alleged threat A.C. made to him as retaliation against his disciplinary measures, the trial court disallowed any reference to Kennedy allegedly catching A.C. and C.M. in some kind of sexual activity. Rather, he testified A.C. threatened “to tell everyone that I had been messing with her” because Kennedy intended to inform AC.’s mother about a disciplinary problem.

1. No Offer of Proof as to What Kennedy’s Testimony Would Have Been

While we can determine the general nature of the excluded testimony from the preliminary discussions among the attorneys and the trial court, the record does not contain an offer of proof from which we can analyze the excluded testimony in detail. Kennedy may have testified that he caught A.C. and C.M. having sex. Or he may have testified, as did Lampkins, that he only saw C.M. pull his pants up. To preserve for review a ruling on evidence, the record must contain a timely, specific objection and, if the ruling excludes evidence, an offer of proof. See Tex.R. Evid. 103(a); Tex.R.App. P. 33.1(a). Simply put, we cannot determine the issue; any error in excluding this testimony was not preserved for our review. We therefore will limit further analysis to the exclusion of Lampkins’ testimony regarding the incident.

2. Probably Not Evidence of Victim’s Past Sexual Behavior

First, because Lampkins’ testimony-consists of speculation that A.C. and C.M. engaged in some sort of sexual activity, we question whether this evidence qualifies as a specific instance of “past sexual behavior” of A.C. as contemplated by Rule 412. Beyond that, it is difficult to conclude that such speculative evidence rebuts or explains the State’s medical evidence. On its face, evidence C.M. was pulling up his pants does not necessarily explain the tears in A.C.’s hymen. The excluded testimony here resembles the testimony at issue in Rankin in which “witnesses made only vague references to the complainant’s alleged sexual activity.” Rankin v. State, 821 S.W.2d 230, 233 (Tex.App.-Houston [14th Dist.] 1991, no pet.).

3. Evidence More Prejudicial Than Probative

Even taking this evidence at its most damaging, we still conclude that the prejudicial effect of the evidence outweighs the probative value it would lend. The implication of Lampkins’ testimony might shed some light on a motive to fabricate allegations against Kennedy, but only minimally more so than did Kennedy’s own testimony regarding the threat without reference to sexual activity. The excluded testimony would add only the element of speculated past sexual activity with C.M., i.e., the jury got to hear Kennedy’s testimony regarding the alleged threat A.C. issued to him in response to disciplinary action against her. Therefore, any probative value of the excluded testimony concerning suspected sexual activity between A.C. and C.M. is very limited; its main effect would be prejudicial by intimating at past sexual activity of A.C. The trial court did not abuse its discretion by excluding the testimony suggesting past sexual activity between A.C. and C.M. We overrule Kennedy’s contention.

III. Exclusion of Hearsay Evidence

A. Testimony from Lampkins Concerning “Get[ting] Stories Straight”

Kennedy also complains the trial court abused its discretion by excluding evidence from Lampkins that A.C. encouraged her friends to “get [their] stories straight.” Outside the presence of the jury, Lampkins testified A.C. told Lamp-kins and two other friends “that[,] in case we all had to testify at court[,] that we all needed to have the same story.” Lamp-kins continued, testifying A.C. “told us our stories had to be that when he walked in, after he made that guy leave, that he started touching her. She never said that they had sexual intercourse. She just said that he touched her, that’s it. That’s what she told me.” Lampkins explained A.C. then “told us that we were going to have to say that he touched her so she wouldn’t get in trouble.” Lampkins repeated much of this testimony during the trial court’s in camera investigation regarding related evidence. Testimony to this effect, Kennedy argues, is admissible as a statement against interest and, as such, an exception to the rule excluding hearsay. See Tex.R. Evid. 803(24).

B. Statement Against Interest Exception to Hearsay

The Rules of Evidence provide that a statement against interest falls outside the rule excluding hearsay and defines a statement against interest as:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex.R. Evid. 803(24). On appeal, Kennedy limits his analysis to that portion of Rule 803(24) dealing with a statement against penal interest. The State, likewise, limits its response to only that aspect of Rule 803(24) and correctly notes that any determination regarding the admissibility of a statement against penal interest in accordance with Rule 803(24) requires a two-step inquiry. See Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005). First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Bingham, v. State, 987 S.W.2d 54, 57 (Tex.Crim.App.1999). Second, the trial court must determine if there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Id.

Whether a statement is, in fact, a statement against interest under Rule 803(24) must be determined from the circumstances of each case. Drone v. State, 906 S.W.2d 608, 612 (Tex.App.-Austin 1995, pet. ref'd). We review a trial court’s decision to admit or exclude a hearsay statement under Rule 803(24) for an abuse of discretion. See Bingham, 987 S.W.2d at 57.

C. Statement Against Penal Interest Not Applicable

After reviewing A.C.’s alleged statements, we conclude the record does not demonstrate that the statements would expose A.C. to criminal liability in the manner contemplated by Rule 803(24). Here, Kennedy argues that A.C.’s admission to her friends she had been lying is perjury and subordination of perjury: “Perjury subjects the declarant to criminal liabilities and is therefore a statement against her interest.” The offense of perjury, however, as described by the Penal Code, requires that the statement at issue be made under oath. See Tex. Pen.Code Ann. § 37.02(a)(1) (Vernon 2003). Here, the statement is one A.C. allegedly made to her friends at one of their homes. The context of these statements clearly indicates they were not made under oath. Of course, A.C.’s testimony regarding the abuse was made under oath. However, this is not the statement sought to be admitted and, thus, cannot be the focus of our analysis. The statement at issue — the one allegedly made to A.C.’s friends — does not subject A.C. to criminal liability for perjury. The statement against penal interest exception, therefore, is inapplicable.

Additionally, we find nothing in the record in the way of corroborating circumstances as plainly required by Rule 803(24). Kennedy points to his own testimony about finding A.C. in bed with a boy and the accompanying threats to accuse him as circumstances that corroborate the excluded testimony. We note this is previously excluded testimony rather than corroborating circumstances. We have found no authority that would permit consideration of such testimony as qualifying corroborating circumstances under Rule 803(24). Thus, even if the first prong of the statement against penal interest exception were somehow satisfied here, Kennedy’s argument would still fail because of the absence of corroborating circumstances. As presented to us on appeal, the trial court’s exclusion of Lampkins’ testimony as a statement against penal interest was not an abuse of discretion. We overrule Kennedy’s third point of error.

IV. Conclusion

Having overruled all of Kennedy’s contentions regarding the trial court’s exclusion of testimony under Tex.R. Evid. 412 and 803(24), we affirm the trial court’s judgment.

Dissenting Opinion by

Justice CARTER.

Kennedy offered evidence from Raschel-la Lampkins that the complaining witness told her and two other friends that they needed to have the same story, that they were going to have to say Kennedy touched A.C. so A.C. would not get in trouble, and that A.C. told them what their stories had to be concerning Kennedy touching her. The majority affirms the exclusion of this evidence, to which I dissent.

The majority opinion reaches its conclusion because “Kennedy limits his analysis to that portion of Rule 803(24) dealing with a statement against penal interest.” Therefore, the majority does not analyze whether this evidence was admissible based on other portions of Tex.R. Evid. 803(24).

I believe the evidence was admissible as provided by Rule 803(24) as a statement against the declarant’s social interest and as a statement invalidating a claim by the witness. This issue was clearly presented to the trial court — the evidence was offered by Kennedy, the State objected, based on hearsay, and Kennedy countered that the evidence was admissible as a statement against interest as set out in Tex.R. Evid. 803(24). I believe the issue has been sufficiently briefed in this Court. In the brief submitted to this Court, Kennedy presents an issue that the trial court erred by not admitting evidence under Rule 803(24). In the summary of the argument, Kennedy states the court erred in finding that the testimony did not fall under the exception to hearsay for a statement against interest under Rule 803(24). Kennedy argues on appeal that such denial was error and the evidence should have been allowed to be presented to the jury. In the argument section of the brief, Kennedy repeats the issue and quotes in its entirety Texas Rule of Evidence 803(24). Kennedy then cites a case as authority, Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex.1986), which involves a statement embodying all three interests expressed in the rule (pecuniary, penal, and social). I believe that Kennedy has complied with the rule so that this issue is properly before the Court and should be addressed. Texas Rule of Appellate Procedure 38(h) requires that the brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R.App. P. 38(h). Here, the contention made is that the statement is an exception to the hearsay rule by virtue of the exceptions set out in Rule 803(24). The rule in its entirety is quoted as the authority, and a citation is given to a case and to the record. The briefing rules found in the Texas Rules of Appellate Procedure “are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.” Tex. R.App. P. 38.9. The rules are to be construed liberally, and substantial compliance with the rules is sufficient unless the court determines the rules have been flagrantly violated (in which case the court may require further briefing), or that the case has not been properly presented, or that the law and authorities have not been properly cited (in which case the court may postpone submission, require additional briefing, or make any other necessary order for a satisfactory submission of the case). Tex.R.App. P. 38.9. Kennedy’s brief does not violate Rule 38.9 and substantially complies with the Texas Rules of Appellate Procedure. Therefore, I will analyze the issues fairly raised in Kennedy’s brief.

I. EXCLUSION OF HEARSAY EVIDENCE

A. Testimony from Lampkins Concerning “Get[ting] Stories Straight”

Kennedy complains the trial court abused its discretion by excluding evidence from Lampkins that A.C. encouraged her friends to “get [their] stories straight.” Outside the presence of the jury, Lamp-kins testified A.C. told Lampkins and two other friends “that[J in case we all had to testify at eourt[,] that we all needed to have the same story.” Lampkins continued, testifying A.C. “told us our stories had to be that when he walked in, after he made that guy leave, that he started touching her. She never said that they had sexual intercourse. She just said that he touched her, that’s it. That’s what she told me.” Lampkins explained A.C. then “told us that we were going to have to say that he touched her so she wouldn’t get in troúble.” Lampkins repeated much of this testimony during the trial court’s in camera investigation regarding related evidence. Testimony to this effect, Kennedy argues, is admissible as a statement against interest and, as such, an exception to the rule excluding hearsay. See Tex.R. Evid. 803(24).

B. Statement Against Interest Exception to Hearsay

The Texas Rules of Evidence provide that a statement against interest falls outside the rule excluding hearsay and defines a statement against interest as:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex.R. Evid. 803(24). The State limits its response to only one aspect of Rule 803(24) by pointing to the rule that any determination regarding the admissibility of a statement against penal interest in accordance with Rule 803(24) requires a two-step inquiry. See Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005). However, Rule 803(24) requires much more analysis than just whether a statement is one against the declarant’s penal interest.

Whether a statement is, in fact, a statement against interest under Rule 803(24) must be determined from the circumstances of each case. Drone v. State, 906 S.W.2d 608, 612 (Tex.App.-Austin 1995, pet. ref'd). We review a trial court’s decision to admit or exclude a hearsay statement under Rule 803(24) for an abuse of discretion. See Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App.1999).

1. Invalidating a Claim by Declarant

Initially, the language involving the invalidation of the declarant’s claim against another seems to address the statement excluded here. Although no Texas case-law has developed the application of the language “render invalid a claim by the declarant against another” in these circumstances, we note that the alleged statement, if believed by the jury, would tend to invalidate A.C.’s claim of abuse. So, while there is no authority delineating the boundaries of this aspect of Rule 803(24), I conclude that Lampkins’s testimony would be admissible in that A.C.’s statement would have rendered A.C.’s claim against Kennedy invalid.

2. Statement Against Social Interest

To be admitted on the basis it would subject the declarant to disgrace, the statement must be “in the context of the declarant’s social interests” and must be against such interests “at the time it was made.” Burks v. State, 40 S.W.3d 698, 701 (Tex.App.-Waco 2001, pet. ref'd) (citing Owens v. State, 916 S.W.2d 713, 718 (Tex.App.-Waco 1996, no pet.); Bell v. State, 877 S.W.2d 21, 24 n. 2 (Tex.App.-Dallas 1994, pet. ref'd)).

There appears to be a rather narrow application of Rule 803(24)’s statement against the “social interest” exception. See Sills v. State, 846 S.W.2d 392, 397 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Sills describes the types of facts which would give rise to the application of this facet of Rule 803(24):

To be admissible, a statement against interest that makes the declarant the object of hatred, ridicule, or disgrace
must be in the context of the declarant’s social interests, such as a confession by a small-town minister of homosexual conduct, Purtell v. State, 761 S.W.2d 360, 369 (Tex.Crim.App.1988), ... or a statement by a husband that he was responsible for an automobile accident whereby his wife became a paraplegic. Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex.1986).

Sills, 846 S.W.2d at 397 (some citations omitted); see also Franklin v. State, 992 S.W.2d 698, 706 (Tex.App.-Texarkana 1999, pet. ref'd).

A type of statement that qualifies as a statement against social interest is presented when an appellant convicted of sexual assault of a child complained of the trial court’s admission of hearsay statements in which the fourteen-year-old complainant confessed to her mother to having had sexual relations with the twenty-six-year-old appellant. See Glover v. State, 102 S.W.3d 754, 766 (Tex.App.-Texarkana 2002, pet. ref'd). She made the statements reluctantly and only did so when confronted by the possibility that her mother already “knew everything,” subjecting the complainant to punishment if she were to be untruthful. Id. This Court reasoned that “a reasonable person in [the complain-antj’s position would have known that her statements would subject her to disgrace in the eyes of her mother.” Id. Therefore, the trial court did not abuse its discretion by admitting the hearsay statements.

To illustrate what evidence does not qualify as a statement against social interest, the Waco court’s opinion in Burks should be considered. There, the complainant’s note to her friend boasting about a sexual encounter with a boy was not admissible in an indecency and sexual assault of a child case. Burks, 40 S.W.3d at 701. The note did not qualify as a statement against social interest because it was not of a nature that would have subjected the declarant/complainant to “hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true.” Id.

Here, on the other hand, evidence that A.C. attempted to influence her friends to testify Kennedy touched her, so she would not get in trouble, runs directly against A.C.’s social interests. Her family, friends, and community would likely treat her with varying degrees and types of hostility, distrust, and resentment if it were revealed that she had lied about the abuse. Common sense and social norms suggest A.C. would have been subject to “disgrace, ridicule, or hatred” for having falsely accused a family friend of sexual assault. So the statement more closely resembles those deemed admissible in Glover and Purtell than it does the inadmissible statement in Burks.

Outside the presence of the jury, A.C. denied ever having made this statement. Likewise, other friends of A.C. testified outside the presence of the jury that A.C. did not make such a statement regarding “get[ting] [their] stories straight.” So, there is a conflict in the evidence. Such conflicts and related issues concerning credibility of witnesses fall squarely within the traditional purview of the jury. See Lester v. State, 120 S.W.3d 897, 902 (Tex.App.-Texarkana 2003, no pet.). The initial determination of trustworthiness is an issue of law, while the ultimate weight to be given to the testimony will be decided by the jury. I believe the court erred in excluding the testimony of Lampkins on this subject.

II. Harm Analysis

Where, as here, erroneous exclusion of evidence is the result of misapplication of the Texas Rules of Evidence and its admission is not claimed to be required by the United States or Texas Constitutions, we analyze harm under Texas Rule of Evidence 103(a), which provides that error may not be predicated on a ruling that admits or excludes evidence unless a “substantial right” of the party is affected. Tex.R. Evid. 108(a); Potier v. State, 68 S.W.3d 657, 666 (Tex.Crim.App.2002). The standard is the same as that under Rule 44.2(b). Tex.R.App. P. 44.2(b); Potter, 68 S.W.3d at 666. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001); Lester, 120 S.W.3d at 903. A criminal conviction should not be overturned for nonconstitu-tional error if the appellate court, after examining the record as a whole, has a fair assurance the error did not influence the jury, or had but a slight effect. See Tex. R.App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998) (citing King v. State, 953 S.W.2d 266 (Tex.Crim.App.1997)).

The excluded evidence, if believed by the jury, would seriously call into question the testimony of the complaining witness. A.C. was the primary witness to testify as to the guilt of Kennedy and, unless her testimony was believed, there was no direct evidence of Kennedy’s guilt. The excluded testimony went to the heart of the case — the credibility and believability of the only witness who testified Kennedy committed sexual assault. The excluded testimony attacked the credibility of the witness on the most important issue in the case, not some collateral matter or some detail of little importance. I cannot say with fair assurance that the erroneous exclusion of these statements of the complaining witness did not affect Kennedy’s substantial rights.

Under these circumstances, I believe we must reverse the case for further proceedings. I respectfully dissent.

      . We note that, regarding Kennedy’s complaints concerning Rule 412, he only raises issues relating to the four convictions for aggravated sexual assault of a child. By Rule 412’s express language, these issues do not concern the indecency with a child convictions.

      . Rule 412 further provides:
      (c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
      (d) Record Sealed. The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.

      .Rule 609 provides, in part:
      For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
      TexR. Evid. 609(a).

      . Burks v. State, 40 S.W.3d 698, 701 (Tex.App.-Waco 2001, pet. ref'd).

      . Rule 103 does allow a proponent of the evidence in question to forego an offer of proof when the substance of the excluded evidence was apparent from the context. Tex.R. Evid. 103(a)(2). Here, we maintain, the precise content of the excluded testimony was not apparent.

      . Again, with respect to the excluded testimony from Lampkins, the evidence constitutes inadmissible hearsay the exclusion of which Rule 412 cannot overcome. Burks, 40 S.W.3d at 699.

      . Rule 803(24) embraces more than just whether a statement is one against the declar-ant's penal interest. Other Rule 803(24) issues were raised before the trial court (mis-characterized by the State as "the civil part” of the rule) not addressed in this appeal. We acknowledge we are to liberally construe an appellant’s point of error to cover any "subsidiary question that is fairly included.” Tex. R.App. P. 38.1(e). We note, however, that the only reference in Kennedy’s brief to any other aspects of the rule appear in his quote of Rule 803(24) in its entirely. Beyond that, he does not mention or discuss any aspect of invalidating the declarant's claim, or of a statement against social interest, and he failed to cite to any authority analyzing those other aspects of Rule 803(24). His entire argument focuses on analysis of the excluded testimony as a statement against A.C.'s penal interest. We therefore expressly limit our holding to the portion of Rule 803(24) addressing the testimony in question as a statement against penal interest.
      The dissent contends Kennedy preserved his reliance on the other aspects of Rule 803 (24) by citing the rule, quoting the rule in its entirety, and by citing a case that references all three interests expressed in the rule. A reviewing court "should consider the parties’ arguments supporting each point of error and not merely the wording of the points.” State v. Garland, 963 S.W.2d 95, 101 (Tex.App.-Austin 1998, pet. denied) (quoting Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995)) (emphasis added). A point that is merely an abstract proposition of law is too general and indefinite to merit appellate review. Pac. Employers Ins. Co. v. Dayton, 958 S.W.2d 452, 455 (Tex.App.-Fort Worth 1997, pet. denied). And merely citing a case discussing all aspects of a rule of evidence, but arguing only one aspect in the brief, does not put the other side — or the reviewing court— on notice that the citing party is relying on all aspects of the rule. There was nothing in Kennedy's less than two pages of discussion under this point to put the State — or this Court — on notice he was relying on any aspect of Rule 803(24) other than statements against penal interests.

      . The majority opinion suggests Kennedy's brief did not put the State or this Court on notice Kennedy was relying on all aspects of Rule 803(24). Of course, I believe that both the Court and the State were properly notified as the rules require. However, if the concern is that the State should have further opportunity to respond, we could authorize supplemental briefing by the State "whenever justice requires, on whatever reasonable terms the court may prescribe.” Tex.R.App. P. 38.7.

      . The jury, as trier of fact, is the ultimate judge of the credibility of the witnesses and the weight to be given their testimony. See Tex Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury is entitled to accept or reject all or any part of the testimony by the witnesses for the State or the accused. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App.1987); Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982); Millerv. State, 909 S.W.2d 586, 593 (Tex.App.-Austin 1995, no pet.).


author: JOHN CAYCE, Chief Justice. LEE ANN DAUPHINOT, Justice,

text:
    Ex parte Vanessa Kaye LAMAR.
    No. 2-05-100-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 22, 2005.
    Discretionary Review Refused May 3, 2006.

      Crampton & Crampton, Holly Cramp-ton, Wichita Falls, for appellant.
    Michael Mask, County Atty., Jacksboro, for appellee.
    PANEL B: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
   OPINION ON REHEARING

JOHN CAYCE, Chief Justice.

On our own motion, we withdraw our memorandum opinion and judgment of November 3, 2005 and substitute the following.

Appellant Vanessa Kaye LaMar filed a pretrial application for writ of habeas corpus alleging a violation of her right to a speedy trial, and the trial court denied relief. In two issues, appellant asserts that the trial court erred by denying relief because the court’s failure to provide her a speedy trial violated the Sixth Amendment and article I, section 10 of the Texas Constitution. We affirm.

In November 2003, appellant pleaded no contest to a class B misdemeanor possession of marijuana charge and received one year of deferred adjudication community supervision. In January 2004, appellant was arrested on a second charge of marijuana possession, and the State filed a motion to proceed to adjudication on the first offense on February 2, 2004.

On February 22, 2005, appellant filed an application for writ of habeas corpus, complaining that her constitutional right to a speedy trial had been violated. The same day, the trial court stated it would set the case for trial and denied habeas corpus relief after taking notice of appellant’s evidence. Appellant then announced that she was going to appeal the trial court’s denial of relief and asked the court not to set the case for trial until the appeal had been decided. Appellant now argues, however, that the trial court erred when it denied her relief because she has not been afforded her constitutional right to a speedy trial.

The court of criminal appeals has held that a defendant may use a pretrial writ of habeas corpus in very limited circumstances. The court has further held that these circumstances do not include an attempt to seek dismissal of a proceeding on speedy trial grounds because the defendant has an adequate remedy at law and, therefore, has no need for the drastic remedy of habeas corpus. Instead, a defendant should file a motion to set aside the indictment in the trial court pursuant to article 27.08 of the Texas Code of Criminal Procedure, and, if the trial court erroneously denies the motion, the defendant may appeal from any conviction that resulted from the continued prosecution.

The dissenting and concurring opinion contends that it “makes no sense” to require the State and appellant to endure the time and expense of a trial and appeal when appellant’s speedy trial complaint can be settled in a pretrial habeas proceeding. In addressing this concern, however, the United States Supreme Court has observed:

There perhaps is some superficial attraction in the argument that the right to a speedy trial ... must be vindicated before trial in order to insure that no nonspeedy trial is ever held. Both doctrinally and pragmatically, however, this argument fails. Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a “right not to be tried” which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends the constitutional guarantee of a speedy trial. If ... an accused [is deprived] of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered.

We hold that appellant has an adequate remedy at law; therefore, she is not entitled to habeas relief. We therefore overrule appellant’s issues and affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting and concurring opinion.

WALKER, J. concurs without opinion.

LEE ANN DAUPHINOT, Justice,

concurring and dissenting.

Although I agree that the trial court’s order denying habeas relief should be affirmed, I respectfully dissent from the majority’s holding that a pretrial application for writ of habeas corpus will not lie to raise the issue of the denial of a speedy trial as guaranteed by the Constitution of the United States. As the majority concedes in a footnote, “a defendant in a criminal case may use a pretrial writ of habeas corpus: (1) to challenge the State’s power to restrain him ...; and (S) to raise certain issues, which, if meritorious, would bar prosecution or conviction.” I would follow the guidance of the Texas Court of Criminal Appeals and hold that when a “pleading is not reparable, a defendant may seek relief from a time-barred prosecution by a pretrial petition for a writ of habeas corpus.” When the State has delayed prosecution beyond the time consistent with the due process guarantees of the Constitution of the United States, the pleading that charges the defendant with the offense is not reparable; if a violation of the speedy trial right is established, the only proper remedy is the dismissal of the prosecution with prejudice. That is, a meritorious writ based on a speedy trial violation successfully challenges the State’s power to restrain the defendant and completely bars prosecution and conviction.

The majority relies on a 1978 opinion of the Supreme Court of the United States and also cites a case dealing with a pretrial writ seeking to declare a criminal statute unconstitutional. I, however, believe that we should look to more recent law dealing with the issue actually before this court in determining whether habeas relief will lie. The Texas Court of Criminal Appeals has addressed the issue of habeas relief and the appropriate appellate standard when there is no timely indictment and when the denial of a speedy trial is raised. The Martin court stated,

In Barker v. Wingo, [407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ] the Supreme Court set out a balancing test with four factors to determine when pretrial delay denies an accused of his right to a speedy trial: (1) length of the delay, (2) reason for the delay, (3) prejudice to the accused, and (4) the accused’s assertion of the right. Today we adopt a Rarfcer-like, totality-of-circumstances test for the determination of good cause under article 32.01. The habeas court should consider, among other things, the length of the delay, the State’s reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused.
Although the factors that we adopt today and the factors adopted by the Supreme Court in Barker are similar, we adopt this Barker-like test because of the similarities in the problem presented: How do courts determine when the right to be discharged in the absence of an indictment or the right to a speedy trial has been violated? The protections are different, but the problem presented is the same; a fact-intensive situation calls for a balancing of the interests served by the rule and the interests of the parties.

Indeed, when the speedy trial complaint was couched in terms of failure to indict, although technically different from a pure speedy trial claim, the Texas Court of Criminal Appeals held that Appellant had waived his claim for failure to seek habeas relief:

In his seventh point of error, appellant contends that the trial court erred in denying his writ of habeas corpus and not dismissing the indictment with prejudice for failure to comply with Texas Code of Criminal Procedure former Articles 28.061 and 32.01. The Grand Jury indicted appellant for capital murder on January 24, 1996. Appellant filed his application for writ of habeas corpus on March 21, 1997. On that same day, the State filed an affidavit of “good cause” pursuant to Article 32.01 of the Texas Code of Criminal Procedure setting forth the grounds upon which the State justified the alleged delay. There was no hearing on the writ. The trial court denied appellant relief.
We have held that Article 32.01 has no application once an indictment is returned. In this case, appellant waived his right to challenge the indictment since he filed his writ of habeas corpus almost a year and a half after the indictment was returned by the grand jury.

To require both the State and the defendant to marshal their evidence, call witnesses, pay lawyers and possibly experts to try the case in its entirety, and then endure the time and expense of appeal makes no sense when the issue can be settled in a pretrial habeas proceeding.

Because this case falls squarely within the parameters set out in Ex parte Smith, I would hold that Appellant properly raised her speedy trial claim in her application for pretrial writ of habeas corpus. I would then affirm the trial court’s order denying habeas relief because Appellant did not demand her day in court below but, rather, requested only dismissal.

      . See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991).

      . See e.g., Ex parte Smith, 178 S.W.3d 797, 801 (Tex.Crim.App.2005) (noting the limited circumstances in which a defendant may use a pretrial writ of habeas corpus: (1) to challenge the State’s power to restrain him; (2) to challenge the denial or conditions of bail; and (3) to raise certain issues, which, if meritorious, would bar prosecution or conviction); Smith v. Gohmert, 962 S.W.2d 590, 593 n. 7 (Tex.Crim.App.1998) (orig.proceeding) (holding that when relator sought writ of mandamus to compel trial court to either set his case for trial or dismiss the indictment pending against him, relator had no adequate remedy at law and was entitled to have his case set for trial (citing Chapman v. Evans, 744 S.W.2d 133, 135 (Tex.Crim.App.1988))).

        .See Smith, 962 S.W.2d at 593 (holding that when appellant claimed his state and federal rights were violated, he had an adequate remedy at law and was not entitled to habeas corpus relief); see also Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001) (noting that the court of criminal appeals has held "that an applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial"); Ex parte Williams, No. 04-05-00386-CV, 2005 WL 1458687, at *1 (Tex.App.-San Antonio June 22, 2005, no pet.) (mem.op.) (not designated for publication); In re Evans, No. 04-05-005 63-CV, 2005 WL 2012772, at *1 (Tex.App.-San Antonio Aug.24, 2005, no pet.) (mem.op.) (not designated for publication) (both holding that defendant may not use pretrial habeas corpus to obtain dismissal of criminal charges on speedy trial grounds).

      . Smith, 962 S.W.2d at 592 (citing Pope v. Ferguson, 445 S.W.2d 950, 955-56 (Tex.1969)). Of course, a defendant who successfully establishes a speedy trial claim in a motion to dismiss will not be tried. United States v. MacDonald, 435 U.S. 850, 861 n. 8, 98 S.Ct. 1547, 1553 n. 8, 56 L.Ed.2d 18 (1978).

      . Dissenting and concurring op. at 326.

      . MacDonald, 435 U.S. at 860-61, 98 S.Ct. at 1552-53 (1978); accord Smith, 962 S.W.2d at 593.

      . Majority op. at 323-24 n. 2.

      . Ex parte Smith, 178 S.W.3d 797, 799 (Tex.Crim.App.2005).

      . Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973); Show v. State, 117 S.W.3d 883, 888 (Tex.Crim.App.2003).

        .Ex parte Martin, 6 S.W.3d 524, 528-29 (Tex.Crim.App.1999) (citations omitted).

      . Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999) (citations omitted).

      . Smith, 178 S.W.3d at 801.


text:
    Jeremy Heath NEEDUM, Appellant, v. The STATE of Texas, State.
    Nos. 2-04-430-CR, 2-04-431-CR, 2-04-432-CR, 2-04-433-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 5, 2006.

      James H. Horton and J.T. Borah, Den-ton, for appellant.
    Bruce Isaacks, Criminal Dist. Atty., Catherine Luft, John Hawkins and Thelo-niaus D. Peugh, Asst. Criminal Dist. At-tys., Denton, for appellee.
    PANELF: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
   MEMORANDUM OPINION

JOHN CAYCE, Chief Justice.

Jeremy Heath Needum appeals from his sentences for aggravated assault against a public servant, endangering a child, and resisting arrest. He pleaded guilty to all of these offenses, and a jury assessed his punishment. In his sole point on appeal, appellant complains that the trial court violated his federal and state constitutional rights to effective assistance of counsel by refusing to allow defense counsel to question venire members about whether they would consider intoxication as a mitigating factor in assessing punishment. We affirm.

The relevant facts and the law applicable to this case are well known to the parties. During voir dire in the punishment phase of trial, the court refused to allow defense counsel to ask venire members the following question:

Is there anybody here that does not believe that intoxication could be a mitigating factor in a crime?

Whether a venire member considers a particular type of evidence, including intoxication, to be mitigating is not a proper area of inquiry during voir dire. A prospective juror is not challengeable for cause simply because he or she does not consider a particular type of evidence to be mitigating.

[T]he law does not require a juror to consider any particular piece of evidence as mitigating; all the law requires is that a defendant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to the evidence if the jury finds it to be mitigating. A trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions ... about particular mitigating evidence.

The dissent argues that the trial court should have allowed the question because a defendant who relies on temporary insanity as a defense is entitled to a jury instruction regarding mitigation when the evidence tends to show that such insanity was caused by intoxication. Based on the well-established precedent that we have discussed, we are unpersuaded by this argument. Moreover, the argument was not preserved for our review because the question at issue did not inform the trial court that appellant was seeking to discover a disqualifying bias against the temporary insanity defense. Therefore, we hold that the trial court did not abuse its discretion or violate appellant’s constitutional rights by disallowing the question. We overrule appellant’s point and affirm the trial court’s judgments.

LIVINGSTON, J. concurs without opinion.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

Because the majority holds that Appellant was not entitled to inquire about the venire’s bias against an area of the law upon which Appellant was entitled to rely, I must respectfully dissent.

Section 8.04 of the penal code provides in pertinent part:

(b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.
(c) When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of this section.

As the Texas Court of Criminal Appeals has pointed out, it is well established in the law that

[t]here are three possible purposes for the voir dire examination of veniremen. The first purpose is to elicit information which would establish a basis for a challenge for cause because the venireman is legally disqualified from serving or is biased or prejudiced for or against one of the parties or some aspect of the relevant law.

As the Sadler Court reiterates, both the defendant and the State may challenge for cause any juror who has a bias or prejudice against the law that either party is entitled to rely upon. “Bias against the law is refusal to consider or apply the relevant law. It exists when a venireper-son’s beliefs or opinions would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.”

Appellant was properly inquiring whether the venire members had a bias against the law upon which Appellant was entitled to rely. A juror who believes so strongly that temporary insanity caused by voluntary intoxication could never be a mitigating factor at punishment has such a bias and is subject to a challenge for cause. Appellant was absolutely entitled to inquire into the existence of such bias, and the trial court abused its discretion by refusing to allow the proper question.

For these reasons, I respectfully dissent from the majority’s opinion.

      . See Tex.R.App. P. 47.4.

      . Garcia v. State, 919 S.W.2d 370, 399-400 (Tex.Crim.App.1996) (op. on reh’g) (holding that trial court did not abuse its discretion by refusing to allow defense counsel to voir dire venire members regarding whether they could consider voluntary intoxication as a mitigating circumstance); accord Standefer v. State, 59 S.W.3d 177, 181 & n. 19 (Tex.Crim.App.2001) (reiterating that whether juror considers particular type of evidence mitigating is not proper area of inquiry and citing Garcia as example).

      . Standefer, 59 S.W.3d at 181.

      . Raby v. State, 970 S.W.2d 1, 4 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998).

      . See Tex. Penal Code Ann. § 8.04(c) (Vernon 2003). Appellant received such an instruction in these cases.

      . See Tex.R.App. P. 33.1(a) (providing that request must be sufficiently specific to apprise trial court of reason for desired ruling); Bell v. State, 938 S.W.2d 35, 54-55 (Tex.Crim.App.1996) (same), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); see also Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002) (holding that appellate court cannot reverse trial court’s judgment on legal theory not raised below), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003).

      . See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002) (applying abuse of discretion standard of review to trial court’s limitation of voir dire).

      . Tex. Penal Code Ann § 8.04(b), (c) (Vernon 2003).

        .Sanchez v. State, 165 S.W.3d 707, 710-11 (Tex.Crim.App.2005) (emphasis added); see also Tex.Code Crim. Proc. Ann. art. 35.16(b)(3), (c)(2) (Vernon Supp.2005); Sadler v. State, 977 S.W.2d 140, 142 & n. 3 (Tex.Crim.App.1998); Smith v. State, 907 S.W.2d 522, 529 (Tex.Crim.App.1995).

      . Sadler, 977 S.W.2d at 142 & n. 3; see also Tex.Code Crim. Proc. Ann. art. 35.16(b)(3), (c)(2).

      . Sadler, 977 S.W.2d at 142 (citations and quotations omitted).

      . See Tex.Code Crim. Proc. Ann. art. 3 5.16 (c) (2).