author: WANDER McKEE FOWLER, Justice. EDELMAN, Justice,

text:
    Walter Francis KALISZ, Appellant, v. The STATE of Texas, Appellee.
    No. 14-99-00092-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 2, 2000.

      Terrence A. Gaiser, Houston, for appellants.
    S. Elaine Roeh, Houston, for appellees.
    Panel consists of Justices FOWLER, EDELMAN, and BAIRD.

       Former Judge Charles F. Baird sitting by assignment.

   MAJORITY OPINION

WANDER McKEE FOWLER, Justice.

Over his plea of not guilty, appellant was convicted of driving while intoxicated. See Tex.PeN.Code AnN. § 49.04 (Vernon Supp. 2000). After considering evidence which included a videotape of a police officer reading appellant his Miranda rights, the jury assessed punishment at thirty years’ imprisonment in the Texas Department of Criminal Justice, Institutional Division. Appellant appeals his conviction on one point of error. We reverse and remand.

BACKGROUND

At or around 9:20 p.m. on May 25, 1998, Memorial Day, Pasadena Police Officer R.J. Anderson was directing traffic around a multi-car accident. He and other officers had set out a pattern of flares to direct traffic off the road and through a parking lot. Suddenly, Officer Anderson saw a car swerve into oncoming traffic, through the flares, and almost hit his patrol car. After the car stopped, appellant exited the vehicle and began to shout expletives at everyone at the accident scene.

Officer Anderson approached appellant and started a conversation with him. He noticed appellant was walking unsteadily, had slurred speech, and had a strong smell of alcohol on his breath and person. Officer Anderson asked appellant whether he had been drinking, to which appellant responded, “Don’t worry about it.” Thereafter, Officer Anderson concluded that appellant was intoxicated and asked appellant to perform some field sobriety tests. When appellant refused to cooperate, Officer Anderson arrested him for driving while intoxicated and transported him to the city jail. At the jail, appellant further refused to. take a “breathalyser” test. With the assistance of another officer, Officer Anderson then videotaped appellant as he asked appellant to perform certain motor skills exercises and gave him verbal Miranda warnings.

Before and during trial, appellant disputed the admissibility of the videotape. Prior to trial, appellant moved to suppress portions of the videotape on the grounds that he had invoked his right to remain silent and terminate the interview at the very beginning of the tape by attempting to leave the video room. Appellant also moved to suppress those portions of the videotape in which he invoked his right to counsel. The trial court granted the motion only in part. It ruled that every question and answer regarding appellant’s Miranda rights, including the officer’s inquiry into whether appellant understood he had a right to have counsel of his choice, was admissible. Only the audio portion of the tape where appellant invoked his right to counsel was held inadmissible.

The State offered testimony from Officer Anderson and another officer, each of whom opined that, given his state on the night in question, appellant had lost the normal use of his mental and physical faculties because he had consumed alcohol. When the State attempted to introduce the videotape into evidence at trial, appellant renewed the same objections raised in his motion to suppress. The trial court overruled appellant’s objections, but instructed the jury that a portion of the audio accompanying the videotape was not admissible for its consideration. The trial court explained that the bailiff would press the “mute” button for seventeen seconds during the inadmissible portion of the tape, and that the jury was not to speculate about what was being said.

Appellant testified in his defense. He denied consuming any alcohol, but admitted taking two valium that afternoon and three seconal that night with little sleep. He also presented the testimony of two friends and his ex-wife, each of whom had seen him that evening — his ex-wife only 30 minutes before his arrest. In contrast to the testimony by the officers, these witnesses testified that appellant did not have any alcoholic beverage and did not smell of alcohol, although his ex-wife did report that appellant took a prescription pill and needed to get home before it took effect. The jury ultimately found him guilty. In rendering its guilty verdict and assessing appellant’s punishment, the jury also had before it appellant’s four previous convictions for driving while intoxicated.

DISCUSSION

In his sole point of error, appellant contends that the trial court erred in allowing the jury to view and listen to the videotape because it showed appellant receiving his Miranda warnings and invoking his right to remain silent, to counsel, and to terminate the interview. In particular, appellant argues that any seventeen second redaction of the tape is insufficient to remove the jury’s perception that appellant was invoking his right to counsel.

An individual may not be penalized for exercising his Fifth Amendment rights when he is under police investigation; evidence of his invocation of his right to counsel is inadmissible as evidence of guilt. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991) (citing Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966)); Mathieu v. State, 992 S.W.2d 725, 729 (Tex.App.—Houston [1st Dist.] 1999, no pet.). However, police requests to perform sobriety tests, directions on how to perform the tests, and queries concerning a suspect’s understanding of his rights do not constitute interrogation. See Mathieu, 992 S.W.2d at 729. “A D.W.I. videotape should not be suppressed unless the police seek to elicit a testimonial response not normally incident to arrest and custody, or the police conduct is reasonably likely to elicit a response.” Id. The audio portion of a videotape is admissible only when it does not include compelled testimony resulting from interrogation. See Miffleton v. State, 777 S.W.2d 76, 81 (Tex.Crim.App.1989). We review the trial court’s decision whether to admit evidence for an abuse of discretion. See Burke v. State, 930 S.W.2d 230, 235 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd).

Here, the trial court explained to the jury that seventeen seconds of the inadmissible portion of the tape would be muted. However, we do not know the exact point at which the trial court muted the tape. The videotape reflects the following events:

(1) The tape begins at 10:29:30 p.m., with Officer Anderson asking appellant to put his feet together and keep his hands by his side.
(2) At 10:30:07 p.m., without saying a word to Officer Anderson, appellant begins to stagger out of the room when he is pulled back by Officer Anderson. Appellant does not resist or otherwise object.
(3) At 10:30:22 p.m., the officer begins reading appellant his Miranda warnings, asking appellant after each right if he understands it, to which appellant— after long pauses during which he sways — responds, “Yes.”
(4) At 10:31:52 p.m., the officer first asks appellant if he understands his right to have an attorney appointed to advise him before and after questioning.
(5) At 10:31:55 p.m., again without saying a word, appellant begins to exit the room a second time, and again is brought back.
(6) At 10:32:08 p.m., appellant attempts to exit the room a third time and is returned.
(7) At 10:32:38 p.m., appellant finally mumbles, “I’ve got a lawyer” or “I have a lawyer.”
(8) At 10:32:59 p.m., appellant again shuffles toward the door. Officer Anderson asks, “Are you terminating the interview? [No response.] Are you terminating the interview? [No response.] Very good then.” Officer Anderson then terminates the interview and the videotape stops.

The right to terminate questioning is among the procedural safeguards established by Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Watson v. State, 762 S.W.2d 591, 596 (Tex.Crim.App.1988). If an individual indicates in any manner at any time before or during questioning that he wishes to remain silent, the interrogation must cease. See Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627. Anything said or done by the appellant that could reasonably be interpreted as a desire to invoke that right is sufficient to halt questioning. See id.

Appellant argues that he attempted to terminate his interview when he first tried to leave the room. Based on appellant’s conduct throughout the interview, we disagree. As Officer Anderson asked appellant if he understood each right, appellant would not respond for several seconds, would appear confused, and would sway slightly while standing in place. Ultimately he answered each question. In addition, each time appellant was brought back into the room, he did not object and continued to answer questions. It appears that appellant did not really know what was going on and, because appellant spoke only in response to direct questions and did not object to being returned to the center of the room, it is difficult to tell what, if anything, he was thinking when he tried to wander off. As a consequence, we do not find that appellant’s actions could be reasonably interpreted as a desire to terminate the interview and, thus, the trial court did not abuse its discretion in admitting this portion of the videotape.

In addition, all the Miranda questions and appellant’s answers (as to whether he understood his rights), were admissible-except for the question regarding appellant’s right to counsel. As we stated, the following do not constitute interrogation: requests to perform sobriety tests and queries to determine whether a suspect understands his rights. See Mathieu, 992 S.W.2d at 729. Anderson’s initial questions to appellant allowed the jury to observe appellant’s demeanor and speech without delving into appellant’s substantive rights. Thus, the portions of the videotape including Anderson’s reading of the Miranda warnings and questions whether appellant understood each right—except the right to counsel—was admissible before the jury.

However, as we have noted above, we agree with appellant that the trial court erred in introducing that portion of the tape that contains the questions regarding his right to counsel and everything thereafter. Taken as a whole, Officer Anderson’s questions regarding this right, and Officer Anderson’s comments to appellant as he was leaving the room, make it appear that appellant was invoking his right to counsel and to terminate the interview. Significantly, at trial, the jury heard Officer Anderson inform appellant of his right to counsel. The tape was then muted and shortly thereafter, appellant once again began to slowly shuffle away. But, as appellant was shuffling toward the door, the audio was turned on again and the jury could hear Officer Anderson ask twice “Are you terminating the interview?” When appellant offered no response, Officer Anderson remarked, “Very good then,” and terminated the interview. Even if appellant was not terminating the interview, which is difficult to tell, the officer’s comments made it appear that appellant did want to stop the interview to talk with his lawyer. The jury should not have seen or heard this last exchange because, viewing the tape in its entirety, it creates an impression that appellant had, indeed, invoked his right to counsel and to terminate the interview. See Mathieu, 992 S.W.2d at 730 (holding that a sufficient period of time between the reading of appellant’s Miranda rights and a videotape’s sound deletion must exist to preclude the jury from concluding that appellant invoked his right to counsel); see also Dumas v. State, 812 S.W.2d 611, 614 (Tex.App.—Dallas 1991, pet. ref'd) (holding that the State’s action in deleting the videotape’s volume, after the interrogating officer gave Miranda warnings and asked whether the defendant wished to invoke those rights, led the jury to the inescapable conclusion that the defendant had exercised his constitutional privilege to remain silent). Because evidence of an accused invoking his constitutional right to counsel may be construed adversely to a defendant and may improperly be considered as an inference of guilt, the trial court erred in admitting Officer Anderson’s query concerning the right to counsel and everything that followed. See Hardie, 807 S.W.2d at 322; Dumas, 812 S.W.2d at 614 (citations omitted).

HARM ANALYSIS

Having concluded that the trial court erred in admitting the portions of the videotape regarding appellant’s right to counsel, we must determine if the error has harmful. This error, which involves the right to be free from self-incrimination, is constitutional error. See Hardie, 807 S.W.2d at 322; see also Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 2333, 147 L.Ed.2d 405 (2000). Accordingly, our analysis is governed by Rule 44.2(a) of the Texas Rules of Appellate Procedure, which provides as follows:

If the appellate record in a criminal case reveals constitutional error that is subject to a harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

Tex.R.App.P. 44.2(a) (Vernon Supp.2000). Texas courts have applied the harmless error rule to Miranda violations of the type alleged by appellant. See, e.g., Mayes v. State, 8 S.W.3d 354, 361-62 (Tex.App.—Amarillo 1999, no pet.); Gray v. State, 986 S.W.2d 814, 815-16 (Tex.App.—Beaumont 1999, no pet.). In applying that rule, we are guided by the following factors: (1) the source of the error; (2) the nature of the error; (3) the extent the error was emphasized by the State; (4) its probable collateral implications; (5) the probable weight a juror would place upon the error; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. See Gray, 986 S.W.2d at 815 (citing Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989)). In analyzing these factors, we may not focus on the propriety of the outcome of the trial. See Harris, 790 S.W.2d at 587. As the Texas Court of Criminal Appeals has explained,

[T]he reviewing court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the jurors’ decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict. Consequently, the reviewing court must focus upon the process and not on the result. In other words, a reviewing court must always examine whether the trial was an essentially fair one. If the error was of a magnitude that it disrupted the juror[s’] orderly evaluation of the evidence, no matter how overwhelming it might have been, then the conviction is tainted. Again, it is the effect of the error and not the other evidence that must dictate the reviewing court’s judgment.

See Harris, 790 S.W.2d at 587-88. In conducting this analysis, a reviewing court must first isolate the error and all its effects and then ask whether a rational trier of fact might have reached a different result if the error had not occurred and its effects had not resulted. See id. at 588.

In this case, the error stems from the videotape which reflects Officer Anderson reciting appellant’s right to counsel under Miranda, followed by seventeen seconds of muted audio and the decision shortly thereafter to terminate the interview. The State, as the videotape’s proponent, is the source of the error. As noted above, the nature of the error is one of constitutional proportion in that it creates an inescapable conclusion that appellant has invoked his right to counsel and to terminate the interview. See Dumas, 812 S.W.2d at 614. Although the State did not emphasize the error in any way, and the trial court did offer an instruction on the excluded audio portion of the tape, the probable collateral implication is that the jury- may have adversely or improperly considered evidence of an accused invoking a constitutional right or privilege as an inference of guilt. See Hardie, 807 S.W.2d at 322; Dumas, 812 S.W.2d at 614. Because the evidence of whether appellant imbibed any alcoholic beverage was conflicting, it is difficult to gauge how much weight a juror would probably place on the error even in light of the trial court’s instruction. We note that, while the presentation of the evidence took only three hours, it took the jury six hours to decide appellant’s guilt. During its deliberation, the jury specifically asked to review the videotape a second time.

The State claims there is “overwhelming” evidence of appellant’s guilt and, therefore, the error, if any, was harmless. We agree that, in this case, there was compelling evidence to show that appellant lacked the normal use of his mental and physical faculties on the night in question. However, there was conflicting evidence presented regarding whether appellant had, in fact, consumed alcohol on that night. In fight of the foregoing factors, and the conflicting nature of the evidence, we are unable to conclude beyond a reasonable doubt that the error did not contribute to appellant’s conviction. See Tex. R.App.P. 44.2(a). Accordingly, appellant’s sole point of error is sustained on that basis and the judgment of the trial court is reversed and remanded for additional proceedings.

EDELMAN, Justice,

dissenting.

Appellant was charged and tried for driving while being intoxicated by alcohol only, i.e., not drugs (even though the latter would have also been an offense ). As the majority opinion reflects, the evidence left no doubt that appellant was intoxicated, but only whether he had consumed alcohol to reach that condition. The majority opinion concludes that the trial court erred in admitting portions of the videotape showing: (i) an officer’s questions and appellant’s answers about his right to counsel; (ii) appellant’s subsequent attempt to leave the room; and (iii) the officer’s comments about appellant thereby terminating the interview. The majority holds that admitting this evidence was error because it can be interpreted as an attempt by appellant to invoke his right to remain silent and/or have an attorney to advise him.

The majority opinion further concludes that appellant was harmed by the admission of these portions of the videotape because the jury could consider such evidence of a defendant invoking his constitutional rights as an implied admission of his guilt. However, as the majority opinion reflects, harm is shown by whether the error might have prejudiced the jurors’ decision making, their application of the law to the facts, and their orderly evaluation of the evidence. Ultimately, it is a question of whether a rational trier of fact might have reached a different result without the error.

In this case, nothing in the inadmissible portions of the videotape was probative of the only real issue in this case: whether appellant became intoxicated from alcohol or something else. Thus, whatever the jury relied upon in resolving the conflicting evidence presented by the officers and appellant’s witnesses on that question, there is no indication that it could have been the videotape. Therefore, there is no reason to believe that the inadmissible portions of the videotape prejudiced the jurors’ decision making or that a rational trier of fact might have reached a different result without them. Accordingly, I would conclude that the error was harmless and affirm the conviction.

      . Based on the judge’s comments, we believe that the tape was muted here, just before appellant mumbled, "I have a lawyer”. We know the judge muted only 17 seconds, so the audio must have been turned back on just before appellant started to walk off a final time (number (8) above), and the jury would have heard the officer's comments about terminating the interview.

      . See Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon Supp. 2000) (defining "intoxicated” to include loss of faculties from introduction of controlled substance or drug as well as alcohol).


source: Caselaw Access Project

author: Opinion by PAUL W. GREEN, Justice.

license: Public Domain

text:
    Andrew Payne LONGAKER, Appellant/Appellee, v. Andrew Reed EVANS, Individually and as Temporary Administrator of the Estate of Marion Longaker Evans, Appellee/Appellant.
    No. 04-97-01046-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 22, 2000.

      Earle Cobb, Jr., Thomas H. Crofts, Jr., Crofts, Callaway & Jefferson, P.C., San Antonio, for Appellant.

      Lewin Plunkett, Cathy J. Sheehan, Plunkett & Gibson, Inc., San Antonio, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LOPEZ, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   ON MOTION FOR EN BANC RECONSIDERATION

Opinion by PAUL W. GREEN, Justice.

The motion for rehearing of the July 7, 1999 panel opinion is overruled. However, the motion for en banc reconsideration is granted. Accordingly, the panel opinion dated July 7, 1999 is withdrawn and the en banc court substitutes the following opinion. The judgment remains unchanged.

This case involves a will contest and a judgment for damages against a fiduciary. Andrew Payne Longaker (Longaker) appeals from the trial court’s judgment disposing of certain assets of the estate of his sister, Marion Longaker Evans (Marion). Marion’s son, Andrew Reed Evans (Evans), cross-appeals to contest the trial court’s failure to find that Longaker exerted undue influence over Marion in the creation of her 1995 will. Evans alternatively asserts Marion’s estate is entitled to damages for Longaker’s breach of fiduciary duty and legal malpractice in the event Longaker is successful on appeal. We reverse those portions of the judgment pertaining to Longaker’s complaints and render judgment in his favor; we affirm those portions of the judgment pertaining to Evans’s complaints.

BACKGROUND

Marion and her husband, John, moved to San Antonio in 1979, after John was diagnosed with a terminal illness. To provide for Marion’s support, John created Trust A, a marital deduction trust funded by securities. John established the trust with the legal counsel of Ben Chilcutt and arranged for the trust to be administered by Frost Bank through its trust officer, William Clyborne.

After John died in 1980, Marion routinely sought financial advice from Bill McEn-tire, an accountant, and legal advice from Chilcutt. In 1988, Chilcutt drafted a new will for Marion. Under the 1988 will, Marion’s siblings would each inherit $50,000, while $100,000 would be placed in trust for Marion’s grandson. Furthermore, Marion’s son, Evans, would inherit Marion’s tangible personal property and the residuary estate, which included the assets of Trust A.

Marion had a close relationship with Evans and his family and spent summers with them in New Hampshire. During the summer of 1994, however, Marion’s health declined and she spent much of her visit resting in bed. In May 1995, Marion was diagnosed with uterine cancer, for which she underwent surgery on May 30. Marion subsequently received radiation treatment from June 20 through July 3. The radiation made Marion “deathly ill,” causing abdominal complications and dehydration. Furthermore, Marion’s medications caused her to be sedated,' confused, and lethargic. The severity of these side effects was disputed in the court below.

On July 6, 1995, Marion executed a new will drafted by her brother, Longaker. Longaker is a licensed attorney, although he has not practiced since the 1940s. At trial, Longaker testified he simply adopted the majority of the 1988 will’s provisions while changing selected dispositions at Marion’s direction. Longaker further insisted he acted not as Marion’s attorney but simply as her brother and “advisor.” The evidence showed, however, that Lon-gaker drafted correspondence to Frost Bank on his attorney letterhead and signed correspondence as Marion’s attorney.

Marion signed the will, which was witnessed and notarized, in the waiting room of Dr. Walthall, her family physician. One of the witnesses was Marion’s friend and practical nurse, Ila Rodriguez, who had accompanied Marion to the doctor’s appointment. At trial, Rodriguez testified that Marion expressed, while waiting to see the doctor on July 6, a wish to die because she was experiencing overwhelming pain and discomfort. Furthermore, Rodriguez stated she was unsure Marion read the will before signing it or even knew it was her will she was signing. It was undisputed the will was not read aloud at its execution. According to Rodriguez, Marion often submitted to Longaker’s demands and sometimes feigned sleep to avoid him. Dr. Walthall said Marion appeared capable of making decisions on the day of their visit. Finally, Longaker testified he neither sought estate planning or tax advice when drafting the will nor informed Marion she should seek such advice on her own.

Although Marion’s gifts to her sister and grandson remained the same under her new will, her bequest to Longaker was notably more generous than the $50,000 bequest provided by the 1988 will. Under the new will, Longaker was entitled to receive the following items he would not have received under the 1988 will:

1. $100,000 in cash;
2. any Certificates of Deposit in banks;
3. any United States issued securities: bonds, bills, and notes;
4. any corporate stocks and bonds not in present trusts;
5. any cash in banks not involved in existing trusts;
6. all automobiles which [Marion] may own; and
7. all transferable memberships in clubs.

Under the 1995 will, Evans would receive Marion’s tangible personal property, the Frost Bank management agency account that held the proceeds from the sale of Marion’s New Hampshire home, and the residuary estate, which included the assets in Trust A.

The day after Marion signed her new will, she was admitted to the hospital for treatment for dehydration. She went home on July 28, only to be admitted again on July 30 for a broken hip and pneumonia. Because she required rehabilitation and an additional hospital stay, Marion could not go home until September 15. Once home, Marion required living assistance.

In October, Longaker, purporting to act on Marion’s behalf, began the process of dismantling Trust A and to channel its assets to accounts over which he had joint control. First, he notified bank trust officer Clyborne that Marion wished to terminate Trust A as soon as possible. Cly-borne informed Longaker of his intent to contact Chilcutt, the trust’s attorney of record, to determine whether Marion had authority to remove all the assets from the trust. Clyborne also informed Longaker the bank required Marion’s personal authorization. Concerned about the tax consequences associated with dismantling the trust and not knowing the contents of Marion’s 1995 will, Clyborne also suggested Marion confer with financial consultant McEntire and attorney Chilcutt.

In response, Longaker notified Cly-borne, by letter dated November 15, that Marion would not be available for conference. Because Clyborne was unable to meet personally with Marion, he hired attorney Nancy Nowlin Kerr, a probate and estate planning specialist, to visit Marion at home. Kerr testified the purpose of her visit was to formulate a lay opinion about whether Marion had sufficient mental capacity to terminate Trust A. During her fifteen to twenty-minute visit with Marion on November 25, Kerr inquired whether Marion understood that the trust assets, once removed, would no longer be subject to Frost Bank’s management. Kerr further asked whether Marion had confidence in Longaker in light of his potential control over the assets. Marion indicated she was aware that terminating the trust and channeling the assets in the intended fashion would enable her brother to exert control over her property. Although Marion never expressed any unhappiness with the bank’s administration of the trust, she preferred the assets to be under her control, or that of her brother, rather than the bank’s control. Apparently, Longaker had discussed with Marion the possibility of increasing the value of the trust corpus by investing in the stock market. Longaker was present at this meeting between Marion and Kerr, but Kerr reported that Longaker remained quiet during the discussion. He did, however, refuse Kerr’s suggestion that Marion meet with Clyborne. In the end, Kerr obtained a written authorization from Marion to terminate Trust A.

Clyborne also received a letter from Marion, dated December 19, directing the trust’s termination. Marion signed the typewritten letter, which Longaker testified he composed at Marion’s direction. Clyborne never had the opportunity to discuss this letter with Marion, nor did Cly-borne ever see a copy of Marion’s 1995 will.

Upon the termination of the trust, Lon-gaker transferred Trust A’s assets— $309,771.17 in cash and securities valued at $142,912.75 — into two of Marion’s Frost Bank accounts. The cash went into a money market checking account, which listed Longaker as a signatory. The securities were placed into a brokerage account, which named Longaker as a joint tenant with the right of survivorship. Longaker subsequently made additional deposits to the checking account from Marion’s Bank One account, Marion’s First New Hampshire Bank account, the proceeds from a City of Concord bond, and additional cash from an unspecified source. The balance in the Frost Bank money market account eventually totaled over $550,000. Finally, Longaker charged Marion $10,000 for his services associated with dismantling Trust A and transferring its assets.

On October 17, 1996, six days before Marion’s death, Longaker withdrew $557,603.75 from the checking account which he then placed in a Frost Bank safekeeping account in his name. These funds were later used to purchase $570,000 in U.S. Treasury bills. A balance of $4500.75 was left in Marion’s checking account.

During the two days preceding Marion’s death, Evans and McEntire asked Longaker to produce the 1995 will and to identify the location of Trust A’s former assets. McEntire reviewed the will and opined it was drafted by Longaker to increase its bequest to him. When Marion died on October 23, Evans obtained a restraining order preventing Longaker from removing funds from the safekeeping and brokerage accounts which held Trust A’s former assets.

Evans contested the 1995 will and sought to have the 1988 will admitted to probate. He alleged that Longaker procured the 1995 will by undue influence and, further, damaged Marion’s estate by terminating Trust A and by transferring estate funds into his own bank account. Longaker said Trust A was terminated according to Marion’s wishes and he denied any exclusive right of ownership to Marion’s funds.

The Findings of Fact

The trial court found no undue influence by Longaker in the creation of the 1995 will and admitted it to probate. However, it found that Longaker breached his fiduciary duty to Marion, causing her to terminate Trust A without advising her that, by doing so, the trust assets might go to Longaker instead of Evans. The trial court also found that Longaker converted the cash and securities that had been the assets of Trust A, and breached his fiduciary duty to Marion by transferring the assets into accounts he controlled. Pursuant to these findings, the trial court re-characterized the cash and securities into choses in action belonging to the estate that passed to Evans under the residuary clause of the will. Alternatively, the court found that Longaker committed legal malpractice that caused $550,000 in damages to Marion’s estate. Finally, the court found that Longaker returned the Trust A assets to the estate.

The Judgment

The final judgment directs that Longaker is to receive forty-five shares of DuPont stock, cash in the Bank One account, cash in the Citizens Bank (formerly First New Hampshire) account, automobiles, and $100,000. Evans is awarded the Fidelity Municipal Bond Fund account; the Colonial Group Mutual Funds account; the City of El Campo, Texas bonds; furniture, fixtures, and household goods; the Frost Bank management agency account holding the proceeds from the New Hampshire home sale; the treasury bills Longaker bought with the $557,603.75 transferred from Marion’s account to his own; and the securities held in the brokerage account. Finally, the judgment dismisses the estate’s damages claim as moot since the Trust A assets had been returned to the estate.

The parties have raised the following issues: First, whether the finding that Marion’s 1995 will was not procured by undue influence is not supported by factually sufficient evidence — in other words, whether the finding is against the great weight and preponderance of the evidence. Next, whether the findings that Longaker converted the Trust A assets and breached his fiduciary duty to Marion are supported by legally and factually sufficient evidence. Next, whether the bequest to Longaker of “corporate stocks and bonds” excludes mutual funds and municipal bonds. And finally, whether the trial court’s alternative finding that Longaker’s legal malpractice damaged the estate has any validity and, if it does, whether it is supported by legally and factually sufficient evidence.

We follow the established standards of appellate review for legal and factual insufficiency. See Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Undue Influence — The 1995 Will

Evans argues the trial court’s finding that Longaker exerted no undue influence over Marion in the creation of her 1995 will is contrary to the great weight and preponderance of the evidence. We disagree.

Evans bore the burden of establishing undue influence. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). When the trial court makes a negative finding on an issue upon which the appellant bears the burden of proof, reversal is warranted only when a review of all the evidence indicates that the great weight of the evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). Although evidence of undue influence is often circumstantial, it must demonstrate: (1) the existence and exertion of undue influence, (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament, and (3) the execution of a testament which the maker would not have executed but for such influence. Rothermel, 369 S.W.2d at 922; Evans v. May, 923 S.W.2d 712, 714-15 (Tex.App.—Houston [1st Dist.] 1996, writ denied); Smallwood v. Jones, 794 S.W.2d 114, 117 (Tex.App.—San Antonio 1990, no writ). We note that “influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence.... [0]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.” Rothermel, 369 S.W.2d at 922.

The record indicates Longaker had ample opportunity to influence Marion. Longaker served as Marion’s last legal and financial adviser. He also cared for her while she was seriously ill. In addition, Longaker redrafted Marion’s will and supervised its execution on a day in which Marion was experiencing great pain and discomfort.

All of this evidence, however, merely provided Longaker with the opportunity to exert influence; it does not tend to establish that Marion’s free agency was destroyed, that her will was subverted, or that Marion’s last testament expresses Longaker’s will rather than her own. See id. at 920-21 (finding no undue influence where feeble testatrix lived on isolated farm with son; son handled all business affairs of testatrix; son drafted will, without consulting counsel, leaving entire estate to self); see also Smallwood, 794 S.W.2d at 118 (holding testatrix’s suffering from Parkinson’s disease was not evidence of undue influence). Indeed, the evidence also shows that Marion’s will was properly executed and consists of the terms she dictated to Longaker. Furthermore, Dr. Walthall said he doubted that Marion was susceptible to influence on the day she signed her will. According to Dr. Walt-hall, Marion was capable of independent decision-making and was fully aware of what happened that day.

In light of all the evidence, we cannot say the trial court’s finding that the 1995 will was not procured by undue influence is against the great weight and preponderance of the evidence. A will executed in compliance with legal formalities “by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing.” Smallwood, 794 S.W.2d at 118. Evans’s contentions constitute no more than bare suspicion. Accordingly, Evans’s factual insufficiency issue is overruled.

ConveRsion/Breach of Fiduciary Duty

The center of the dispute between Lon-gaker and Evans is the termination of Trust A. That is because Evans was entitled under either the 1988 or the 1995 will to receive the assets of Trust A but, because the trust was dismantled by Longaker before Marion’s death, the former trust assets are instead designated to go to Lon-gaker under provisions added in the 1995 will. Evans, quite understandably, wants to avoid the effect of the trust termination and take under Marion’s will what he believes she intended for him to have — that is, he should receive the former trust assets under the will just as if the trust had never been dismantled. This result was accomplished when the trial court found in Evans’ favor and awarded him the former trust assets under the residuary clause of the will as choses in action for conversion and breach of fiduciary duty on the basis that Longaker had wrongfully assumed control over the assets.

Conversion

Longaker contends the trial court’s findings do not support a conversion cause of action as a matter of law. We agree. Conversion is established by proving 1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; 2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiffs rights; and 3) the defendant refused the plaintiffs demand for the return of the property. Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d 704, 707 (Tex.App.—San Antonio 1997, writ denied).

Even if it is assumed, without deciding, that the transfer of Marion’s money market funds to an account controlled exclusively by Longaker constitutes some evidence Longaker exercised unauthorized control over Marion’s funds in a manner that was inconsistent with her rights, there is no evidence the property was not returned on demand. Indeed, it is conclusively shown, and specifically found by the court, that the assets traceable to the money market funds and any earnings on those funds were preserved and returned to the estate for distribution in accordance with the terms of the 1995 will. It is unrealistic and artificial to recognize the existence of these assets in the estate yet, at the same time, consider them to have been converted by Longaker. In short, there is no evidence the estate was damaged when Longaker withdrew funds from Marion’s money market account. See United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex.1997) (requiring proof of damages for conversion).

Moreover, the record does not support a finding that Longaker converted the Trust A securities. On Marion’s authority, the securities were placed in a joint tenancy brokerage account after the trust was dismantled — and they stayed there. Marion was not dispossessed of the securities at any time. Longaker was not able to and did not exercise exclusive control over the securities, and there is no evidence he did anything with them that was inconsistent with Marion’s rights.

Because there was no evidence to support a finding that Longaker converted the Trust A cash or securities, we conclude the trial court erred in awarding these assets to Evans under the residuary clause of the will as a chose in action for conversion.

Breach of Fiduciary Duty

The trial court also found Longaker breached his fiduciary duty to Marion by causing Trust A to be terminated and by then transferring its assets from Marion’s accounts to accounts accessible by him. The breach of fiduciary duty claim arises out of the attorney-client relationship between Longaker and Marion. See Archer v. Griffith, 390 S.W.2d 735, 739 (Tex.1964) (“The relation between an attorney and his client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny, intend-ments and imputations as a transaction between an ordinary trustee and his cestui que trust.”).

Like the conversion claim, the breach of fiduciary duty claim fails because there is no evidence Marion was damaged by Lon-gaker’s actions. As noted earlier, the former trust assets were never lost to the estate. Consequently, even if Longaker acted improperly when he transferred Marion’s money market funds and securities, without her knowledge, to accounts he could access, in the absence of a loss, the estate has no basis for a chose in action for breach of fiduciary duty that could be awarded under the residuary clause of the will.

Further, the finding that Longaker breached his fiduciary duty by wrongfully causing Trust A to be terminated cannot be the basis for an award of the trust assets to Evans under the residuary clause of the will. The trial court found Longaker breached his fiduciary duty to Marion by “suggesting] that Trust A be terminated,” and by “causing] [Marion] to execute documents to terminate Trust A without advising [her] that by doing so, the assets therein might go to [Longaker] instead of her son.” The court concluded from this that Longaker “used his fiduciary relationship to attempt to arrange his sister’s estate to benefit himself.” Assuming all this to be true, the fact remains that the trust assets were not lost to the estate when the trust was terminated. With the former trust assets intact, the estate had no claim against Longaker for breach of fiduciary duty that could pass to Evans under the residuary clause of the will as a chose in action.

It is true, however, that the termination of the trust damaged Evans’ expectation that he would receive the former trust assets on Marion’s death. But Evans has no remedy against Longaker for his lost expectation. First, Longaker owed Evans no duty. See Barcelo v. Elliott, 928 S.W.2d 575, 579 (Tex.1996) (attorney for testator owes no professional duty of care to persons named as will beneficiaries). Second, while there is much speculation that the trust termination was not a result of Marion’s free act, there is no competent evidence that Longaker wrongfully influenced or otherwise induced Marion to do anything she did not otherwise intend to do.

The findings of fact and judgment rest on the assumption that Marion had a fixed plan for the trust assets to go to Evans. However, there is no support in the record for this assumption. There is no evidence, for example, that Marion would never have agreed to terminate the trust if she had known it would effectively redirect the trust assets from Evans to Longaker in her will. And any conclusion that Marion’s testamentary intent was thwarted by Longaker’s misconduct is based only on speculation. Even if Longaker’s counsel to Marion was tainted by his self-interest, we cannot presume she was influenced to act against her true wishes.

Marion was free to terminate the trust and dispose of its assets anytime she wanted to, notwithstanding any specific bequests in her will. See Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 150 (Tex.1980) (“Absent a contrary intention expressed in the will, the alienation or disappearance of the subject matter of a specific bequest from the testator’s estate adeems the devise or bequest.”). There is no evidence Marion was not freely acting upon her own wishes when she sought to terminate the trust, just as she told attorney Kerr. Accordingly, the estate is unable to show that Lon-gaker’s conduct with respect to the trust termination and his handling of the former trust assets caused any harm to Marion.

Legal Malpractice

The trial court also found that Longaker’s legal malpractice and breach of fiduciary duty caused damages to Marion’s estate in the amount of $550,000 in estate taxes. However, the claim for damages was dismissed as moot when the trust assets were returned to the estate and because Evans, acting on behalf of the estate, agreed to waive damages if the trial court construed the 1995 will in the manner indicated by the judgment.

The trial court, allowing that this court might not agree with its disposition of the case, made the following additional finding:

In the event an appellate court changes the interpretation of the 1995 Will in a manner that is materially different from the Judgment in this case, ANDREW REED EVANS, as Independent Executor of the estate of MARION LONGAKER EVANS, is entitled to recover from ANDREW PAYNE LONGAKER the sum of $550,000 as damages for his breach of fiduciary duty and for his legal malpractice which proximately caused damages to the estate in that amount, (emphasis added).

Our holding that the conversion and breach of fiduciary duty findings were not supported by legally sufficient evidence does not affect the trial court’s interpretation of the 1995 will. We determined only that the estate had no viable cause of action against Longaker for his handling of the former trust assets. We do, however, disagree with the trial court’s interpretation of the provision in Marion’s 1995 will that disposes of her corporate stocks and bonds. See infra. To the extent our interpretation of this provision is materially different, we must consider whether we should render a judgment awarding the estate $550,000 damages for Longaker’s legal malpractice and breach of fiduciary duty. See Tex.R.App. Proc. 43.3.

Negligence

Legal malpractice actions are governed by negligence principles. Bárce-lo, 923 S.W.2d at 579; Estate of Arlitt v. Paterson, 995 S.W.2d 713, 719 (Tex.App.—San Antonio 1999, pet. denied). Thus, to establish a claim of legal malpractice, Marion’s estate was required to prove that Longaker owed her a duty, that he breached that duty, and that the breach proximately caused her injury and damages. See Cosgrove v. Chimes, 774 S.W.2d 662, 665 (Tex.1989). An attorney is held to the standard of care that would be exercised by a reasonably prudent attorney, and expert testimony is required to establish that standard of skill. Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.—San Antonio 1995, writ denied).

The trial court found that, while acting as Marion’s attorney, Longaker was “negligent in not advising [Marion] of the effect of closing Trust A, of the way the accounts were set up, of the effect on her desired disposition of her assets and in not advising her of the effect on estate taxes of her Estate Plan and in keeping her away from competent and reliable estate planners who could have saved her estate substantial money in estate taxes.” Although the evidence supports the existence of an attorney-client relationship between Lon-gaker and Marion, the professional negligence claim fails because there is no competent evidence that Longaker’s conduct violated the lawyer’s standard of care. No expert testimony was offered that Longaker failed to exercise the care of a reasonably prudent lawyer when advising Marion in connection with her estate.

Breach of Fiduciary Duty

We have already determined there is sufficient evidence to support the trial court’s finding that Longaker breached his fiduciary duty to Marion. The question that remains is whether that breach caused damage to the estate in the amount of $550,000 in estate taxes.

There is no causal relationship between the termination of the trust and any additional tax liability to the estate. McEntire, who had been Marion’s financial advisor, testified Longaker precluded Marion from obtaining the benefit of his financial planning expertise. There is no evidence, however, that Marion ever intended to adopt McEntire’s financial plan. In fact, the only evidence is to the contrary. Marion ordered the bank, in writing, to terminate the trust and told attorney Kerr she wanted to manage the assets herself.

Marion was free to terminate Trust A in the face of warnings that to do so would cause adverse tax consequences to her estate. Quite understandably, Evans complains that this action was not prudent and, incidentally, substantially reduced his beneficial interest in the estate. But even if Marion acted on bad advice from Lon-gaker in terminating the trust, all indications are it was what she wanted and there is no evidence of a contrary intent or that she could have been persuaded to change her mind. See Thompson v. Deloitte & Touche, L.L.P., 902 S.W.2d 13, 16 (Tex. App.—Houston [1st Dist.] 1995, no writ) (no cause of action in Texas for lost opportunity to prevent someone from changing his will).

Any interpretation of this record that Longaker thwarted Marion from carrying out the McEntire plan amounts to no more than speculation. As such, it fails as a matter of law to support the necessary causal link between Longaker’s actions and any alleged loss to the estate. We conclude there is no evidence to support the estate’s claim of damages due to any breach of a professional duty by Longaker.

Mutual Funds and Municipal Bonds

Finally, Longaker challenges the probate court’s conclusion that certain municipal bonds and mutual funds were not covered by the term “corporate stocks and bonds,” which Marion bequested to him in her will. Neither party contends the provision in Marion’s will governing this distribution is ambiguous. We therefore look only to the testamentary instrument to decide this issue. See Henderson v. Parker, 728 S.W.2d 768, 770 (Tex.1987); Opperman v. Anderson, 782 S.W.2d 8, 10 (Tex.App.—San Antonio 1989, writ denied). To ascertain Marion’s intent at the time she executed her will, we examine only the language used within the four corners of the document and harmonize the document’s provisions so as to give each its proper effect. See Henderson, 728 S.W.2d at 770; West Tex. Rehab. Ctr. v. Allen, 810 S.W.2d 870, 873 (Tex.App.—Austin 1991, no writ).

According to Marion’s 1995 will, Lon-gaker was to inherit (1) “any Certificates of Deposit in banks;” (2) “any United States issued securities: bonds, bills and notes;” and (3) “any corporate stocks and bonds not in present trust.” At the time of her death, Marion held financial interests in the Colonial Group Mutual Fund, the Fidelity Municipal Bond Fund, and bonds issued by the City of El Campo, Texas. Although these assets are mentioned in Marion’s will, they are not itemized according to the terminology Marion used in her specific bequests.

Generally, corporate stock refers to securities issued by a corporation. See Black’s Law Dictionaey 307 (5th ed.1979). Corporate bonds are debt instruments issued by a corporation. See id. at 306. A mutual fund is “an investment company that raises money by selling its own stock to the public and investing the proceeds in other securities, with the value of its stock fluctuating with its experience with the securities in its portfolio.” Id. at 920. Finally, a municipal bond fund is a mutual fund that invests the proceeds of its stock sales in municipal bonds, which are “evidences of indebtedness issued by cities or other corporate public body, negotiable in form, payable at designated future time, and intended for sale in market with object of raising money for municipal expense.” Id. at 917.

According to these common definitions, the Fidelity Municipal Bond Fund, the Colonial Group of Mutual Funds, and the City of El Campo, Texas municipal bonds properly fit into the category of “corporate stock and bonds.” Under Marion’s 1995 will, Longaker is thus entitled to receive Marion’s interest in the Fidelity Municipal Bond Fund, the Colonial Group Mutual Fund, and the municipal bonds issued by the City of El Campo, Texas.

Conclusion

Evans insists that a grave miscarriage of justice will occur if the former trust assets are awarded to Longaker instead of to him because Marion intended for Evans to have the assets of Trust A. Indeed, he may actually be correct. Certainly Longaker’s conduct, particularly the apparent self-dealing, raises a serious concern that his motives when dealing with Marion and her property may not have been pure. But if Marion’s intentions were thwarted by Lon-gaker’s improper influence and manipulation of her estate, the record does not show it. Instead, the record consists largely of innuendo. There is no evidence rising above a scintilla that Longaker unduly influenced Marion to terminate Trust A for his own gain. Only through speculation can it be concluded that when Trust A was terminated Marion did not intend to redirect the trust assets from Evans to Longaker. And as much as the circumstances make it appear that Longaker may have manipulated Marion’s estate to benefit himself, any conclusion to that effect must be based on more than mere speculation. There must be some evidence to support it, and we have found none.

Accordingly, having determined the trial court erroneously awarded assets based on conduct and damages that were not established, we next consider to whom these assets should properly be awarded.

The disposition of a probate asset depends on its nature on the date of the testator’s death and title vests in the beneficiary upon the testator’s death. Tex. Pkob.Code Ann. § 37 (Vernon Supp. 1999); accord Kelley v. Marlin, 714 S.W.2d 303, 305-06 (Tex.1986). On the day Marion died, her money market funds were held by Longaker in an account under his name; however, it is undisputed the funds belonged to Marion. Because Marion’s 1995 will bequeathed Longaker the “cash in banks not involved in existing trusts,” Longaker is entitled to receive the treasury bills that were purchased with this cash, along with any cash remaining in the money market fund account.

The securities formerly held as Trust A assets are non-probate assets because they were held in a joint brokerage account with survivorship rights on the day Marion died. Accordingly, the securities pass to Longaker outside of probate since he is the survivor of the joint tenancy account.

In confoimity with the above, the trial court’s judgment is reversed in part and judgment is rendered that Longaker receive (1) the $557,603.75 transferred by Longaker out of Marion’s money market account, invested in U.S. Treasury bills in the face value of $570,000.00, plus income; (2) the securities held in the Frost Bank brokerage account, plus income; (3) the Fidelity Municipal Bond Fund account; (4) the Colonial Group Mutual Funds account; and (5) the City of El Campo, Texas municipal bonds. The remaining provisions of the trial court’s judgment are affirmed.

      . John also created a second trust that is not involved in this lawsuit.

      . Anticipating the damages problem, the estate alternatively argues that proof of damages is not required when a lawyer breaches a fiduciary duty to his client, citing Burrow v. Arce, 997 S.W.2d 229 (Tex.1999). Burrow v. Arce is a fee forfeiture case. In that case, the supreme court held that a client "need not prove actual damages in order to obtain forfeiture of an attorney’s fee for the attorney’s breach of fiduciary duty to the client.” Id. at 240. The holding has no application in this case where the client/estate does not seek fee forfeiture, but rather seeks actual damages caused by the fiduciary’s misconduct.


text:
    Kristine Lizabeth JONES f/k/a Freeda Jones and Paul Jones, Appellants, v. Dorothy LURIE, Appellee.
    No. 14-98-01097-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2000.

      Charles William Blount, Dallas, for appellants.
    Jay D. Hirsch, Willie B. Daw III, Tina Snelling, Fred L. Shuchart, Houston, for appellees.
    Panel consists of Justices SEARS, DRAUGHN, and LEE.

       Senior Justices Ross A. Sears, Joe L. Draughn, and Norman Lee sitting by assignment.

   CORRECTED OPINION

ROSS A. SEARS, Senior Justice (Assigned).

On November 2, 2000, this Court delivered its opinion in the above-referenced case. We found it necessary to correct this opinion under appellants’ point of error eighteen, challenging the cumulative effect of the errors, by adding our holding that appellants have failed to show harm. We herewith withdraw our original opinion and substitute the following corrected opinion to add this holding:

Kristine Lizabeth Jones f/k/a Freeda Jones (Kristine) and Paul Jones (Paul) appeal from a take-nothing judgment in their negligence suit against psychologist Dorothy Lurie (Dr. Lurie). In eighteen points of error, appellants contend: (1) the evidence is factually insufficient to support the jury findings (points one through thirteen); (2) the tidal court erred in limiting the length of the trial (points fourteen and fifteen); (3) the trial court erred in permitting an attorney to appear and represent Dr. Lurie (point sixteen); (4) the trial court erred in prohibiting evidence of Kristine’s competence and informed consent (point seventeen); and (5) the cumulative effect of these errors caused the rendition of an improper judgment (point eighteen). We affirm.

BACKGROUND

Dr. Lurie received her Ph.D. in psychology from New York University in 1986. She was licensed as a psychologist on January 25, 1989, after having interned with other psychologists for two years. Kristine’s first visit to Dr. Lurie was January 26,1989, having been referred to Dr. Lurie by her physician, Dr. Levin. Three months later, Kristine told Dr. Lurie that her grandfather had sexually abused her when she was four years old. In 1990, Kristine also told Dr. Lurie that her parents took her to “satanie rituals” where she was physically and sexually abused by other cult members. In August 1990, Kristine told Dr. Lurie that she had vivid memories of murdering and cannibalizing babies, and of being impregnated by her father. She told Dr. Lurie that she had more than one hundred “inner children,” or alternative personalities (“alters”), that told her about past abuses to her. The “alters” were given different names such as “Derf ’ and “Rabbit.” The alters would argue amongst themselves, and would occasionally dominate her personality to the point Kristine would appear to be someone else. As a result of some of the alters talking to her, she would burn and cut herself. Kristine attempted suicide several times. She had a history of alcohol abuse starting when she was in high school.

Dr. Lurie treated Kristine off and on from January 1989 until November 1994. During Dr. Lurie’s treatment, Kristine terminated Dr. Lurie’s services several times. Dr. Lurie had Kristine admitted to several treatment centers and hospitals, and she was treated by several psychiatrists and therapists. Kristine was diagnosed by all of her psychiatrists, and Dr. Lurie, as having multiple personality disorder (MPD) and major depression. During her treatment by psychiatrists, she was given prescription medication such as Prozac for depression, Klonopin for anxiety, and Thorazine, a major tranquilizer.

Dr. Lurie stated that her therapy for the treatment of Kristine’s MPD was based on her research of known authorities on the subject such as Dr. Frank Putnam, a well-known psychiatrist. Following the treatment for MPD promulgated by The American Psychiatric Association, and Dr. Putnam, Dr. Lurie testified that she first established a trust relationship with Kristine, which took about one and one-half years. Her next goal was to establish communication with Kristine’s alters, and tell them they must attend therapy and not harm themselves or the body they shared. In the next recommended step, Dr. Lurie would try to get the alters to cooperate with each other. Finally, Dr. Lurie would try to get a unified personality among the alters and Kristine. Dr. Lurie said her treatment along these lines complied with the standard of care that a reasonable and prudent psychologist would do or refrain from doing under the same and similar circumstances in the Harris County area. As a licensed psychologist, she neither prescribed any medication nor told Kristine what medicine to take; she did tell Kristine to take whatever medication her physicians prescribed for her. Essentially, Dr. Lurie’s treatment was “talk therapy” whereby she would listen to Kristine, and try to work with her toward the goals recommended for treatment of MPD.

One of Kristine’s expert witnesses was Dr. Terrence Campbell, a licensed psychologist from Michigan, who spent 80% of his time testifying as an expert in psychology and treatment of various psychological disorders. Dr. Campbell opined that Dr. Lurie deviated from the “appropriate” standard of care which caused damage to Kristine. By incorrectly treating Kristine, Dr. Campbell stated that Dr. Lurie “created a therapeutically induced post-traumatic stress disorder” in Kristine.

Dr. Howard Miller, a psychiatrist in Dallas who treated Kristine in 1992, testified that Dr. Lurie’s treatment of Kristine between 1989 and 1994 met with the standard of care by a reasonable psychologist. Dr. Miller opined that Kristine suffered from MPD, and he stated that Dr. Lurie’s treatment was in accordance with the accepted standards of treatment for MPD promulgated by The American Psychiatric Association and was appropriate. He further stated that Kristine’s post-traumatic stress syndrome (PTSD) was not caused by Dr. Lurie’s therapy. He opined it could have been caused by her sexual and physical abuse as a child.

Dr. Harvey Rosenstock, a local psychiatrist, stated Dr. Lurie’s treatment was proper, and that Kristine’s PTSD was not caused by Dr. Lurie’s therapy. He also opined the condition could have been caused by her child abuse and loss of her sister, Liz, who was Kristine’s closest family member. Dr. Rosenstock also opined that no “informed consent” has to be given to a psychologist by a patient who is on an out-patient treatment basis. If the psychologist performs a special procedure, then he recommended that the psychologist obtain a consent agreement from the patient.

FACTUAL SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE JURY FINDINGS

In points one through seven, appellants contend the evidence is factually insufficient to support the jury’s finding of negligence by Kristine and no negligence by Dr. Lurie. Appellants also contest the factual sufficiency of the evidence to sustain the jury’s findings to the conditional question no. 2, apportioning 100% of the fault to Kristine and zero percent to Dr. Lurie. Appellants do not challenge the legal sufficiency of the evidence to support these findings. In points eight, nine, and ten, appellants assert the evidence is factually insufficient to support the jury’s finding of no damages for Kristine in question no. 3. In points eleven, twelve, and thirteen, appellants assert the evidence is factually insufficient to support the jury’s findings of no damages for Paul for loss of consortium in question no. 4.

Standard of Review

To prevail on their factual sufficiency challenges, appellants must show that the adverse findings are against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). In conducting this review, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Id. We must uphold the jury’s finding unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or erroneous. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). See also Knoll v. Neblett, 966 S.W.2d 622, 629 (Tex.App.—Houston [14th Dist.] 1998, pet. denied).

The Negligence Findings

Question No. 1 asked: “Did the negligence, if any, of those named below proximately cause the occurrence in question?” The jury answered “No” opposite Dr. Lurie’s name, “No” opposite the other seven defendants’ names, “No” opposite Paul’s name, and “Yes” opposite Kristine’s name. Question No. 2 asked: “For each person found by you to have caused the occurrence in question, find the percentage caused by,” then listed the defendants, Kristine, and Paul. The jury answered “0” opposite all the listed parties with the exception of Kristine; the jury found that the “occurrence” was 100% caused by Kristine’s negligence.

Discussion

The evidence supporting the jury’s findings of no negligence on the part of Dr. Lurie consists of Dr. Lurie’s testimony, the testimony of Dr. Miller, Dr. Rosen-stock, Dr. Bloeher, Dr. Coons, Dr. Stock-well, and Dr. Decker. Drs. Miller and Rosenstock testified that Dr. Lurie’s treatment met with the standard of care for practicing psychologists in this area from 1989 through 1994. Dr. Rosenstock opined that no “informed consent” has to be given to a psychologist by a patient who is on an out-patient treatment basis. If the psychologist performs a special procedure, then it he recommended that the psychologist obtain a consent agreement from the patient.

Dr. Thomas Bloeher, a psychiatrist, testified that he examined Kristine on January 20, 1994, to determine if Kristine should be hospitalized because of her suicide threats. His initial diagnosis was that Kristine suffered from a “borderline personality disorder.” He also stated she suffered from multiple personality disorder and depression. Dr. Bloeher stated that Dr. Lime’s treatment of Kristine for MPD using the procedures recommended by the APA met with the standard of care for practicing psychologists.

Dr. Douglas Stockwell, a psychiatrist, started treating Kristine in February 1991 at Belle Park Hospital. Kristine had been admitted because she was showing signs of major depression. Kristine refused treatment and left Belle Park. On November 9, 1992, Dr. Lurie brought Kristine to Dr. Stockwell for examination. He used drugs such as sodium amytal and Ativan [anti-anxiety, anticonvulsant, and sedative] in evaluating his patients’ problems. Dr. Stockwell stated that Dr. Lurie was present during the Ativan interviews which were conducted at Dr. Stockwell’s office. Dr. Lurie wanted to relax Kristine “to help her deal with what she felt had come up in therapy,” such as Kristine’s suicidal tendencies and desire to kill herself before she reached her 30th birthday. During the Ativan interviews, Kristine talked about “Nazi mind-control” methods utilized on her. Dr. Stockwell felt Kristine’s memories of such matters were delusional, and he encouraged Dr. Lurie to be “reality-based” in her therapy. Dr. Stockwell opined that Kristine had borderline MPD. Dr. Stockwell stated that Dr. Lurie was a competent psychologist, and that her treatment Kristine posed no danger to Kristine.

Dr. Philip Coons, a psychiatrist, was the author of many articles on MPD, and opined that Dr. Frank Putnam’s book on the treatment of MPD was the best source for a therapist to obtain information regarding the treatment of MPD. Based on his review of Dr. Lurie’s records, he stated that her treatment of Kristine, utilizing the procedures recommended by Dr. Putnam, complied with the standard of care for psychologists from 1989 through 1994. Although he disagreed with Dr. Lurie’s technique in questioning Kristine during the Ativan interviews, Dr. Coons testified her conduct did not fall below the standard of care, and it did not cause any harm to Kristine.

Dr. Norman Decker, a psychiatrist, examined Kristine in April 1994. At that time, he gave her a test called “structured clinical interview for dissociation.” As a result of this test, Dr. Decker opined that Kristine suffered from multiple personality disorder, which is now called “dissociative identity disorder.” He stated that Kristine thought she had more than 100 alter personalities. Dr. Decker did not read Dr. Lurie’s medical records, and he expressed no opinion as to her treatment of Kristine conforming with the standard of care.

Dr. Campbell testified for two days, and his testimony covers over 500 pages. Dr. Campbell opined that Dr. Lurie breached the standard of care for a psychologist in the following ways: (1) by failing to obtain a written informed consent from Kristine according to the ethical principles for psychologists developed by the American Psychological Association published in 1981; (2) Dr. Lurie was not competent to treat Kristine; (3) Dr. Lurie was negligent in treating Kristine by having her believe her memories of satanic ritual abuse were true; (4) Dr. Lurie should have treated Kristine addressing Kristine’s clinical condition concerning work-related problems, family-related problems, and health-related problems; and (5) Dr. Lurie failed to recognize Kristine’s deterioration and refer her to other professionals. By causing Kristine to believe that she suffered sexual and physical abuse as part of cult rituals, and by having Kristine accept these memories as real, Dr. Campbell concluded that Dr. Lurie caused Kristine to have a “post-traumatic stress disorder.” Dr. Campbell further opined that the recommended treatment for MPD promulgated by The American Psychiatric Association, and Dr. Putnam, was a “risky procedure.”

Dr. Edwin Johnstone, a psychiatrist, testified that Dr. Lurie breached the standard of care for a psychologist by: (1) misdiagnosing Kristine’s condition; (2) improperly treating Kristine; and, (3) failing to refer Kristine to other professionals. He further opined that all of Kristine’s subsequent hospitalizations and treatments were necessitated by Dr. Lurie’s improper treatment. Dr. Johnstone said there was no such thing as multiple personality disorder (MPD), and that Dr. Putnam and other professionals that wrote on MPD were “quacks.”

Kristine testified that she told Dr. Lurie about the satanic ritual abuse when she first got out of Cottonwood Treatment Center in 1990. Kristine stated that Dr. Lurie told her she should believe her memories were true. She first attempted suicide in March 1992 by overdosing on her prescribed medications and vodka. She wanted to kill herself because “it was so hard believing all this stuff,” and she thought she deserved to die. Thereafter, she attempted suicide ten more times. She stated that Dr. Lurie brought up the subject of Nazi brainwashing techniques, and Kristine thereafter believed that she had been brainwashed. She quit having sexual relations with her husband, Paul, because Dr. Lurie told her it would create bad memories. Kristine stated that she stopped believing she had a multiple personality disorder and had suffered from satanic ritual abuse about the time depositions were taken in this case. She stated that the therapy of the numerous doctors she saw destroyed her life.

Kristine was initially referred to Dr. Lu-rie by her medical doctor. Kristine needed help in dealing with the memory of past events in her life. Kristine had been sexually and physically abused by her grandfather, father, and brother. She had emotional disorders connected to the sexual abuse. Kristine also had a history of eating disorders, alcoholism, depression, adjustment disorder, multiple personalities, and suicidal tendencies. Kristine was a very disturbed and mentally sick lady when she was referred to Dr. Lurie. Those conditions existed before Dr. Lurie ever saw Kristine.

As part of her treatment, Dr. Lurie referred Kristine to many other doctors for diagnosis and medication. Dr. Lurie also referred Kristine to many treatment centers and hospitals. However, Kristine consistently ignored what Dr. Lurie and other doctors told her. Kristine, against doctors orders, voluntarily left Belle Park Hospital, Stafford Medical Center, Spring Shadows Glen, Katy Medical Center, and Baywood Hospital. She also testified that she fired Dr. Starbranch, Dr. Decker, and refused to accept a referral by Clements Jackson. She admitted having quit Dr. Lurie several times.

By continuing to ignore the medical advice of all the doctors, as well as the staff at the various treatment centers and hospitals, Kristine made it impossible for Dr. Lurie or anyone else to effectively help her cope with her problems.

Because the jury is the sole judge of the credibility of the witnesses and the weight to be given them testimony, we may not substitute our judgment for that of the jury’s simply because we may disagree with the jury’s findings. Herbert v. Herbert, 754 S.W.2d 141, 142 (Tex.1988); Bradley v. Rogers, 879 S.W.2d 947, 958 (Tex.App.—Houston[14th Dist.] 1994, writ denied). In weighing the testimony of Kristine and her experts supporting negligence against the testimony of Dr. Lurie and her experts refuting negligence, together with the medical records in evidence, we hold that the jury’s finding of no negligence on the part of Dr. Lurie was not against the great weight and preponderance of the evidence. See also Winkle v. Tullos, 917 S.W.2d 304, 817-18 (Tex. App.—Houston[14th Dist.] 1995, writ denied) (conflicting expert testimony on use of tourniquet during knee surgery; jury’s failure to find negligence supported by legally and factually sufficient evidence); Merckling v. Curtis, 911 S.W.2d 759, 763-67 (Tex.App.—Houston[lst Dist.] 1995, writ denied) (detailed evidence in opinion was legally and factually sufficient to support finding of no negligence on part of general surgeon in diagnosing need for hernia surgery); Crawford v. Hope, 898 S.W.2d 937, 942-43 (Tex.App.—Amarillo 1995, writ denied) (“battle of experts” in suit against physician for terminating patient’s seizure medications and replacing them with ineffective medication; weight of evidence was for jury, and finding of no proximate cause for treating physician was not manifestly unjust or clearly wrong). See also Magee v. Ulery, 993 S.W.2d 332, 336 (Tex.App.—Houston[14 Dist.] 1999, no pet.)

The trial court’s charge instructed the jury, in pertinent part:

“NEGLIGENCE,” when used with respect to the conduct of Kristine Lizabeth Jones f/k/a Freeda Jones means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

We hold there is sufficient evidence to sustain the jury’s finding in question 1 that Kristine was negligent. See Eoff v. Hal and Charlie Peterson Foundation, 811 S.W.2d 187, 191 (Tex.App.—San Antonio 1991, no writ). Because the jury found no negligence on the part of any of the defendants, and found only Kristine was negligent, the jury correctly attributed 100% causation to Kristine in question 2. We overrule appellants’ points of error one, two, three, four, five, six, and seven challenging the factual sufficiency of the evidence to support the jury’s findings in Question 1 and Question 2.

The Findings of Zero Damages

In points eight, nine, ten, eleven, twelve, and thirteen, appellants challenge the factual sufficiency of the evidence to support the jury’s findings of zero damages for Kristine and Paul in Questions 3 and 4.

Appellants overlook the well-established rule of law that a finding of zero damages is immaterial in the absence of liability findings. See, e.g., Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (1939); Winkle v. Tullos, 917 S.W.2d 304, 318 (Tex.App.—Houston [14th Dist.] 1995, writ denied); Ramsey v. Lucky Stores, Inc., 853 S.W.2d 623, 635 (Tex.App.—Houston [1st Dist.] 1993, writ denied). Because the jury found no liability on the part Dr. Lurie, it was not error for them to award zero damages. We overrule appellants’ points of error eight, nine, ten, eleven, twelve, and thirteen.

LIMITING THE LENGTH OF THE TRIAL

In points fourteen and fifteen, appellants assert the trial court erred in arbitrarily limiting the trial to two weeks, thereby limiting appellants’ cross-examination of defendant’s witnesses. Appellants argue that restricting the trial time to nine days was an arbitrary and unreasonable limitation on appellants’ right to develop their case at trial.

Appellants made no complaint to the trial court about the length of time. Appellants filed a pre-trial order indicating the trial would last seven to eight days. In their brief, appellants do not state how they were harmed by the time limitations, and argue only that “the arbitrary restrictions were harmful as expressed in the jury’s verdict.” No mention is made of any loss of testimony or evidence that would cause the rendition of an improper judgment.

A presiding judge has broad discretion with respect to the manner in which control of a trial is maintained and as to the examination of witnesses and a judgment will not be reversed unless probable prejudice is shown. Tex.R.Evid. 611(a), (b); Texas Emp. Ins. Ass’n v. Garza, 557 S.W.2d 843, 845 (Tex.Civ.App.—Corpus Christi 1977, writ ref'd n.r.e.).

Appellants have not shown in what way this ruling of the trial court harmed their cause. That being true, they have not shown the requisite probable prejudice to them because of the ruling. Appellants’ points of error fourteen and fifteen are overruled.

THE APPEARANCE OF APPELLEE’S LAWYER

In point sixteen, appellants contend the trial court erred in permitting attorney Willie Ben Daw III to enter his appearance and represent Dr. Lurie. Mr. Daw previously represented Karen Hutchins, one of the settling defendants in this case. Appellants argue that Mr. Daw’s representation of Dr. Lurie was adverse to the interests of Daw’s former client, Karen Hutchins, and he should not have been allowed to proceed as Dr. Lurie’s attorney. Appellants did not object to Mr. Daw’s appearance and representation, and they filed no motion to disqualify Mr. Daw. They complain of this matter for the first time on this appeal.

Attorney conflicts of interest in civil cases are governed by the Texas Disciplinary Rules of Professional Conduct, and complaints based on violations of those rules are waived if not timely raised. See Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex.1994); Arteaga v. Texas Dept. of Protective and Regulatory Services, 924 S.W.2d 756, 762-763 (Tex.App.—Austin 1996, writ denied). Appellants have therefore waived any error by failing to bring the alleged conflict to the attention of the trial court. Furthermore, appellants were never represented by Mr. Daw, and they have no standing to complain of his representation of Dr. Lurie. See Adams v. Reagan, 791 S.W.2d 284, 291 (Tex.App.—Fort Worth 1990, no writ); Pioneer Natural Gas Co. v. Caraway, 562 S.W.2d 284, 290 (Tex.Civ.App.—Eastland 1978, writ ref'd n.r.e.). Appellants’ point of error sixteen is overruled.

EVIDENCE OF COMPETENCY AND INFORMED CONSENT

In point seventeen, appellants contend that the trial court erred in prohibiting appellants from presenting evidence relating to competency and informed consent. Appellants’ counsel asked Paul if Dr. Lurie ever had conversations with him concerning the mental competence of Kristine. Appellee objected on the grounds of relevance, and the trial court sustained the objection.

There is no bill of exceptions or other offer of proof in the record showing the substance of the excluded evidence. Error may not be based on a ruling that excludes evidence unless the substance of the evidence was made known to the court by offer of proof. Tex.R.Evid. 103(a)(2). When a trial court excludes evidence, a failure to make an offer of proof waives any complaint about the exclusion on appeal. Chubb Lloyds Ins. Co. of Texas v. Kizer, 943 S.W.2d 946, 949 (Tex.App.—Fort Worth 1997, writ denied). By failing to make an offer of proof, appellants have waived this complaint. We overrule appellants’ point of error seventeen.

THE CUMULATIVE EFFECT OF THE ERRORS

In point eighteen, appellants contend that the cumulative effect of the errors shown in this appeal was “reasonably calculated to and probably did cause the rendition of an improper judgment.”

Multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful. Tex.R.App.P. 44.1(a)(1), (2); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 570 (Tex.App.—Houston (1st Dist.) 1996), affirmed, 972 S.W.2d 35 (Tex.1998). Before we may reverse a judgment and order a new trial, we must determine that the error committed by the trial court was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Id. The appellants must show that, based on the record as a whole, but for the alleged errors, the jury would have rendered a verdict favorable to them. Id. Appellants have failed to show that but for the cumulative effect of the errors, if any, the jury would have rendered a verdict favorable to them.

We overrule appellants’ point of error eighteen.

We affirm the judgment of the trial court.