author: Justice CHAVEZ.

text:
    In the Matter of the ESTATES OF Lucinda GARCIA-CHAPA and Irma Garcia-Chapa, Deceased.
    No. 13-99-400-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 16, 2000.

      Edmundo 0. Ramirez, Luis M. Cardenas, Ellis, Koeneke & Ramirez, McAllen, for Appellant.
    John Williamson, Brownsville, for Appel-lee.
    Before Justices HINOJOSA, CHAVEZ and RODRIGUEZ.
   OPINION

Opinion by

Justice CHAVEZ.

This case comes out of the administration of two estates that hold funds in thirty-one accounts in eight banks in and around Brownsville, Texas. The contested property was owned by two sisters who died in Mexico. Appellant Magdalena García-Chapa de Rosas complains on appeal (1) that the trial court should have applied the law of the domicile of the decedents or (2) that the trial court should have abated the appeal until the courts of the domicile of the decedents decided the issues in controversy in parallel litigation over the same property. The appellee in this case is María de la Luz Carlota García Tyner, administratrix of the estates of Lucinda García-Chapa and Irma García-Cha-pa. Because appellant did not follow the proper procedural requirements to apply foreign law, we affirm the judgment of the trial court.

This case has been in Texas courts since 1997 and in Mexican courts for a similar amount of time. On August 27, 1998 the case first went to trial in Texas and the trial court signed a judgment declaring heirship. On November 2, 1998 the trial court granted appellant’s motion for new trial. On January 15, 1999 appellant filed a motion to abate the trial and a motion to provide notice of foreign law. On January 20, 1999 the trial court set the case for trial on February 11,1999. The case went to trial again on February 11,1999.

The laws of the domicile of a person who dies intestate control in the succession of movable or personal property of his estate. Van Hoose v. Moore, 441 S.W.2d 597, 617 (Tex.Civ.App.—Amarillo 1969, pet. ref. n.r.e.); Saner Ragley Lumber Co. v. Spivey, 238 S.W. 912, 915 (Tex. Comm’n App.1930, judgm’t adopted); see Owen v.. Younger, 242 S.W.2d 895, 898 (Tex.Civ.App.—Amarillo 1951, no writ) (“It is now the well settled doctrine that the law of the actual domicile is to govern in relation to his testament of personal property, whether the property is situated within the domicile of the testator or in a foreign country.”); cf. Lanius u. Fletcher, 100 Tex. 550, 101 S.W. 1076, 1077 (1907) (the principle that the law of the testator’s domicile governs the disposition of personal property does not apply where it is clear that the testator of a will had in mind the law of another jurisdiction, in which the property was located) Here the decedents were domiciled in Mexico and died intestate.

Texas courts may apply Mexican law. Gardner v. Best Western Int’l. Inc., 929 S.W.2d 474, 479 (Tex.App.—Texarkana 1996, writ, denied); see Nevarez v. Bailon, 287 S.W.2d 521, 522-23 (Tex.Civ.App.—El Paso 1956, writ ref'd) (application of Mexican law to determine heirship). Choice of law questions are questions of law to be decided by the trial court. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex.1984).

The lex loci delicti and other traditional rules applying the law of the location of the property in question have been rejected in favor of the “most significant relationship” approach set forth in the Restatement (Second) of Conflict of Laws. Gutierrez v. Collins, 583 S.W.2d 312, 316-18 (Tex.1979); see Restatement (Second) of ConfliCt of Laws § 6 (1971). Section 6 of the Restatement, provides the following principles:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Id. at 318-19.

Here, the decedents are Mexican nationals who resided in Mexico their entire fives, died in Mexico, and, aside from the funds before the trial court, only owned property in Mexico. Due to the large amount of Mexican and other foreign capital in Texas banks, it is important for us to maintain a stable system to resolve disputes over such assets. Texas courts should not interrupt foreign disputes over foreign capital which is located in Texas. See Albuquerque Nat’l. Bank v. Citizens Nat’l Bank in Abilene, 212 F.2d 943, 948-49 (5th Cir.1954). The funds in question are the only connection between the decedents and Texas. Since the factors fisted in the Restatement support the application of Mexican law to this controversy, this is therefore a case where substantive Mexican law should be applied.

However, Mexican law cannot be applied to this case because appellants did not follow the procedures required by Texas law. The Texas Rules of Evidence state,

A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law.

Tex.R.Evid. 203. If a translation of the foreign law is necessary, the translation must be served on all parties forty-five days before trial. Tex.R.Evid. 1009. The Texas Rules of Civil Procedure require a trial court to give “reasonable notice” of the trial date in a case reset after the first setting of a trial and at least forty-five days notice before a first setting of a trial. Tex.R.Civ.P. 245.

Appellant provided notice of intent to apply Mexican law and a translation of the Mexican law seven days before the trial court set the case for the second trial. The trial court set the trial date twenty-two days before the second trial. Under the circumstances, twenty-two day’s notice, although it provided appellant less than the statutorily required period necessary to provide notice of intent to apply foreign law or a translation of foreign law, was nonetheless reasonable. Appellant could have introduced the foreign law before the first time this case went to trial in August of 1998, and had additional time after the court’s November 2 grant of appellant’s motion for new trial and the date the case was set for trial. There is no record that appellant ever presented the foreign law to the trial court until twenty-nine days before the second trial. In light of the months appellants had to prepare their case, the twenty-two day period is not unreasonable. See O’Connell v. O’Connell, 843 S.W.2d 212, 216-17 (Tex.App.—Fort Worth 1992, no writ) (notice of resetting of case eight days before trial was reasonable where parties had initially been scheduled to go to trial more than one month earlier and when cause of action had been set for trial in each of the court’s three previous terms).

Appellant argues that after the trial judge granted his motion for new trial on November 2, he did not set the case for trial because he was soon leaving office. Appellant therefore argues that he expected time to produce the foreign law at the new trial setting. Given the extensive length of time appellant had to introduce the foreign law before the first trial and before the next hearing, we do not agree that the trial court abused its discretion.

Appellee argues that appellant has not proven that Mexican Law is different from Texas law. Appellant stipulated that the substantive law of Mexico and the law of Texas are substantially the same, but also argued at trial that the interpretation of the law is very different in Mexico. In the absence of a pleading or proof of law from another jurisdiction or a motion to take judicial notice of the laws of another jurisdiction, laws of other jurisdictions are presumed to be the same as those of Texas. See Gevinson v. Manhattan Const. Co. of Oklahoma, 449 S.W.2d 458, 465 n. 2 (Tex.1969); see Ochoa v. Evans, 498 S.W.2d 380, 387 (Tex.Civ.App.—El Paso 1973, no writ) (Mexican law of the tort of conversion is assumed to be the same as Texas law absent proof to the contrary). Appellant has provided no such pleading or motion. As discussed above, appellant did not timely provide proof of Mexican law to the court. Therefore the trial court did not err by applying Texas law.

Lastly, we address the trial court’s decision not to abate this case. The Clerk’s Record contains copies of the Mexican proceedings and translations of the Mexican proceedings in parallel litigation to this case. Abatement of a lawsuit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988). It is unclear how much time will pass before the Mexican proceedings conclude or what effects an abated trial would have on the parties before the court or to the orderly control of the court’s docket. We review the court’s decision not to abate the case for an abuse of discretion. Id. at 248; Taiwan Shrimp Farm Village Ass’n v. U.S.A. Shrimp Farm Dev. Inc., 915 S.W.2d 61, 68 (Tex.App.—Corpus Christi 1996, writ denied). We see no abuse of discretion.

We AFFIRM the judgment of the trial court.

      . Law of the place where last event necessary to make actor liable for an offense took place. Black’s Law Dictionary 911 (6th ed.1990).


source: Caselaw Access Project

author: FROST, Justice.

license: Public Domain

text:
    Michael G. SCHLAFLY, Appellant, v. Karen S. SCHLAFLY, Appellee.
    No. 14-99-00303-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 22, 2000.
    Rehearing Overruled Jan. 4, 2001.

      Anne Harland Recio, Christopher J. Maurer, Houston, for appellants.
    Jacqueline Taylor, Houston, for appel-lees.
    Panel consists of Justices MAURICE AMIDEI, ANDERSON and FROST.
   OPINION

FROST, Justice.

This is an appeal from a divorce case in which the husband/appellant brings six issues, contending the trial court erred: (1) in instructing the jury; (2) in awarding ad litem fees without evidence, designating those fees “child support,” and ordering them paid through wage withholding; (3) in denying him the right to a trial by jury; (4) by signing a decree awarding medical decisions exclusively to the wife; (5) in awarding the husband’s separate property to the wife; and (6) in awarding “in excess of 90% of the community assets” to the wife/appellee. We affirm the portion of the judgment relating to custody of the minor child and reverse and remand the portion of the judgment pertaining to the property division.

I. Factual BACKGROUND

Appellant, Michael G. Schlafly (“Mike”) and appellee, Karen S. Schlafly (“Karen”) met in January of 1992, and married in October of the same year. The couple have one son, Carl, who was two and a half years old at the time the parties separated in October of 1995. Mike filed for divorce in November of 1995, seeking custody of Carl. The jury decided custody, naming Karen primary joint managing conservator. The trial court determined all property issues. After the trial court signed a final decree of divorce, Mike unsuccessfully sought a new trial.

II. Custody

In his first issue, Mike contends the trial court erred in instructing the jury to determine with whom does Carl primarily reside rather than with whom should Carl primarily reside. Mike also alleges this instruction is legally insufficient to resolve the custody issue.

To preserve error in the charge in a civil matter, the objecting party must distinctly designate the error and the grounds for the objection. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 272; Keetch v. Kroger Co., 845 S.W.2d 262, 267 (Tex.1992). Likewise, to preserve the issue of whether an instruction in the jury charge is legally insufficient, the appellant must make an objection in the trial court. See State Dep’t of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304 (Tex.App.—Houston [14th Dist.] 1995, no writ). A party may make this objection: (1) before the trial court gives the charge to the jury; (2) in a motion for instructed verdict; (3) in a motion to disregard the jury’s answer; (4) in a motion for judgment notwithstanding the verdict; or (5) in a motion for new trial specifically raising the complaint. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149 (Tex.App.—Corpus Christi 1996, no writ); Regan v. Lee, 879 S.W.2d 133, 135 (Tex.App.—Houston [14th Dist.] 1994, no writ). The “party complaining on appeal must have made the trial court aware of the complaint and must have obtained a ruling.” Casteel-Diebolt, 912 S.W.2d at 304 (citing Payne, 838 S.W.2d at 241). Mike did not make the trial court aware of his complaint by objecting to the jury charge or by bringing any of the appropriate motions; therefore, he failed to preserve the question of whether the trial court erred in the charge to the jury and the question of whether the instruction was legally insufficient. We overrule his first issue.

III. Ad Litem Fees

In his sixth issue, Mike contends the trial court erred in awarding ad litem fees without evidence, designating those fees as “child support,” and ordering the fees paid through wage withholding. To preserve error, the objecting party must identify the error and the grounds for the objection. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 272. Mike neither objected nor filed any motion aimed at the purported errors in awarding ad litem fees, designating those fees as “child support,” and ordering them paid through wage withholding. Therefore, Mike failed to preserve these issues for appellate review. We overrule Mike’s sixth issue.

IV. Dismissal of JuROR

In his second issue, Mike contends the trial court denied him his right to trial by jury by dismissing an empaneled juror whom the court did not first determine to be “disabled from sitting.” The dismissed juror, a female, had reportedly approached Mike twice on days that he was testifying and said, “[y]ou need to smile more. ” The trial court dismissed the juror and replaced her with an alternate juror. Mike objected and moved for a mistrial, which the court denied.

A. Standard of Review

The trial court has discretion to grant or deny a motion for mistrial. See Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex.App.—Houston [14th Dist.] 1998, no pet.). In reviewing the trial court’s decision, an appellate court does not substitute its judgment for that of the trial court but decides whether the trial court’s decision constitutes an abuse of discretion. See McDaniel v. Yarbrough, 898 S.W.2d 251, 254 (Tex.1995); Riddick v. Quail Harbor Condo. Ass’n, Inc., 7 S.W.3d 663, 678 (Tex.App.—Houston [14th Dist.] 1999, no pet.).

B. Composition of Jury

Both the Texas Constitution and the Texas Rules of Civil Procedure require district court juries to “consist of twelve members unless not more than three jurors die” or are “disabled from sitting.” McDaniel, 898 S.W.2d at 252 (citing Tex. Const. Art. V, § 13; Tex.R. Civ. P. 292). Denying a party the constitutional right to trial by jury constitutes reversible error. See id. at 253. Specifically, it is error to deny a party his constitutional right to a trial by twelve jurors unless a juror dies or becomes “disabled from sitting.” Id. Here, Mike was not denied a full jury of twelve members. Although the trial court dismissed one juror, it replaced the dismissed juror with an alternate. Because Mike was not denied his constitutional right to a trial by a jury of twelve, we find no error.

Mike argues that the trial court nevertheless denied him his right to trial by jury because it dismissed an empaneled juror whom it had not found to be “disabled from sitting.” In essence, Mike asserts that there is a right to trial by a jury consisting of the twelve regular members and not the alternates unless the regular members have died or become disabled. In making this argument, Mike relies on the Texas Supreme Court’s opinion in McDaniel, a case which addresses the constitutional right to a jury of twelve mem-

bers. 898 S.W.2d at 252. McDaniel, however, does not support Mike’s position. Moreover, our review of the Texas Constitution, relevant statutes, and ease law reveals nothing to suggest the trial court’s action in this case constitutes error. The only possible support for Mike’s position is a recent Texas Supreme Court case, Yanes v. Sowards, 996 S.W.2d 849 (Tex.1999), which contains language that could be construed as finding a right to trial by a jury consisting of twelve regular members. In Yanes, the Texas Supreme Court held that both the Texas Constitution and the Texas Rules of Civil Procedure require a district court jury to consist of “twelve original jurors” in the absence of an exception. Id. at 850 (emphasis added). However, only four years earlier, in McDaniel, the Texas Supreme Court found that both the state constitution and the procedural rules require a district court jury to consist of “twelve members” unless one of the previously mentioned exceptions applies. See McDaniel, 898 S.W.2d at 252. The issue then becomes whether “twelve original jurors” has a different meaning than “twelve members.”

We have found no cases which address whether “twelve original jurors” means all the jurors originally empaneled, i.e., both the regular jury members and the alternate jurors, or only the regular jury members. Yanes did not involve a situation in which there was an alternate juror but rather a situation in which eleven jurors rendered the verdict. Id. Because Yanes did not address alternate jurors, we do not interpret it to mean that the jury must consist of twelve regular jury members. There is nothing in Yanes to suggest the Texas Supreme Court, in issuing that opinion, intended to narrow its earlier interpretation of either the state constitution or the rule, neither of which had changed in the four years since McDaniel.

Our examination of both the state constitution and Texas Rule of Civil Procedure 292 indicates that neither supports interpreting “original jurors” to mean only the regular jury members. The constitution itself does not mention “original jurors” or “twelve original jurors.” Rule 292, entitled “Verdict by Portion of Original Jury,” provides “where as many as three jurors die or become disabled from sitting and there are only nine of the jurors remaining from an original jury of twelve, those remaining may render and return a verdict.” Tex.R. Civ. P. 292 (emphasis added). Like all Texas Rules of Civil Procedure, we are to construe this rule liberally to attain the Rules’ objective of “a just, fair, equitable, and impartial adjudication of the rights of litigants ... with as great expedition and dispatch and at the least expense ... as may be practicable .... ” Tex.R. Civ. P. 1. With this directive in mind, we focus our analysis on the difference between an alternate juror and a regular juror.

The statute authorizing the use of alternate jurors reads:

Alternate jurors shall be drawn and selected in the same manner as regular jurors. An alternate juror must meet the same qualifications, is subject to the same examination and challenges, shall take the same oath, has the same functions, powers, and privileges, and shall be accorded the same facilities and security as a regular juror.

Tex. Gov’t Code Ann. § 62.020(c) (Vernon 1998). The alternate juror hears the same evidence that a regular juror hears and, in the words of the statute, “has the same functions, powers and privileges.” Id. There is no reason to treat a jury composed of twelve members, one of whom is an alternate, any differently than a jury composed of twelve regular members. Doing so would serve no purpose and would unnecessarily increase the time and expense of litigation by opening the gates to mistrials even in cases in which the right of litigants, to have a jury of twelve, has not been abridged. We find “original jurors” means all the jurors empaneled, both regular members and alternates.

Even if the Texas Constitution and/or the Texas Rules of Civil Procedure did require a jury to be composed of twelve regular jury members, unless not more than three regular jurors die or become disabled from sitting, any error in this case would be harmless. We cannot reverse a judgment unless the error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1. An exception to this general rule usually applies when a trial court errs by denying the objecting party “a full jury of twelve members, absent an exception authorized by the constitution or applicable rules.” McDaniel, 898 S.W.2d at 253; Fiore v. Fiore, 946 S.W.2d 436, 438 (Tex.App.—Fort Worth 1997, writ denied); City of Jersey Vill. v. Campbell, 920 S.W.2d 694, 698 (Tex.App.—Houston [1st Dist.] 1996, writ denied). This exception, however, does not apply here because the objecting party, Mike, was not denied a full jury of twelve members. The trial court replaced the dismissed juror with an alternate. In determining whether the trial court’s action probably caused an improper judgment, we review the entire record. See Kroger Co. v. Betancourt, 996 S.W.2d 353, 363 (Tex.App.—Houston [14th Dist.] 1999, pet. denied) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995)). To find reversible error, we must conclude that the whole case turns on the error. See id. (citing Church & Dwight Co., Inc. v. Huey, 961 S.W.2d 560, 570 (Tex.App.—San Antonio 1997, pet. denied)). Mike has brought forward no evidence to show the whole case turns on the trial court’s substitution of an alternate juror for an original juror. Moreover, we fail to see how Mike could make such a showing on the facts in the record now before us. Mike had the same opportunity to conduct voir dire examination of the alternate juror as he did with the original juror, yet he did not challenge the alternate juror. The Fifth Circuit has held that when a disabled juror is replaced with an alternate whom the objecting party did not challenge, that party waives any contention that the seating of the alternate alone operated to deny him a fair trial. See United States v. L’Hoste, 609 F.2d 796, 802 (5th Cir.1980). We agree. Mike’s second issue is overruled.

V. Medical Decisions

In his fifth issue, Mike contends the trial court erred in awarding the medical decisions, relating to the couple’s minor son, exclusively to Karen in the decree of divorce when the trial court had earlier ruled from the bench that medical decisions should be a joint right shared by Mike and Karen. The trial court actually ruled that (a) Karen would have the sole right to make educational decisions regarding Carl, (b) Mike would have the sole right to make legal decisions regarding Carl, and (c) all other rights would be “standard.”

As previously noted, to preserve error, a party must timely object or file a motion specifically stating the grounds for the desired ruling if the grounds are not apparent from the context. See Tex.R.App. P. 33.1(a). Mike did not object or file a post-trial motion challenging the decree of divorce granting Karen the exclusive right to consent to medical decisions for Carl. Because Mike did not preserve this issue for appeal, we need not address it. However, in the interest of justice, we will consider Mike’s argument.

A trial court may change its rulings while it has plenary power. See Tex.R. Civ. P. 329b(d); McCormack v. Guillot, 597 5.W.2d 345, 346 (Tex.1980). The trial court had plenary power when it signed the decree of divorce. Even if the trial court intended that both Karen and Mike would have a joint right to make medical decisions when it ruled that all other rights should be “standard,” it was within the court’s power to modify the judgment anytime during the plenary period and to grant the right exclusively to Karen. Therefore, notwithstanding Mike’s failure to preserve error, his argument has no merit. We overrule Mike’s fifth issue.

VI. PRoperty Division

In his third and fourth issues, Mike contends the trial court abused its discretion in awarding Mike’s separate property to Karen and in awarding “90% of the community property” to Karen. In a divorce decree, the trial court “shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam.Code Ann. § 7.001 (Vernon 1998). To disturb a trial court’s division of property, the appellant must show the trial court clearly abused its discretion by a division that is manifestly unjust and unfair. See Ridgell v. Ridgell, 960 S.W.2d 144, 147 (Tex.App.—Corpus Christi 1997, no pet.); Kuehn v. Kuehn, 594 S.W.2d 158, 161 (Tex.App.—Houston [14th Dist.] 1980, no writ). A trial court abuses its discretion when it rules without supporting evidence. See In re P.M.B., 2 S.W.3d 618, 621 (Tex.App.—Houston [14th Dist.] 1999, no pet.). In reviewing the trial court’s decision, our analysis focuses on a two-pronged inquiry:

(1) Did the trial court have sufficient information upon which to exercise its discretion; and
(2) Did the trial court abuse its discretion by causing the property division to be manifestly unjust or unfair?

See Evans v. Evans, 14 S.W.3d 343, 346 (Tex.App.—Houston [14th Dist.] 2000, no pet.) (citing In re De La Pena, 999 S.W.2d 521, 527 (Tex.App.—El Paso 1999, no pet.)).

A. Separate Property

A trial court has no authority to divest a spouse’s interest in separate property. See Vickery v. Vickery, 999 S.W.2d 342, 371 (Tex.1999); Cameron v. Cameron, 641 S.W.2d 210, 213-20 (Tex.1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977). The trial court ruled that Mike had a 22% separate property interest in the couple’s home on Sea Island, yet in the final decree of divorce, the trial court failed to award 22% of the Sea Island home to Mike and instead gave the entire property to Karen.

Karen does not dispute that Mike owned a 22% separate property interest in the Sea Island property; instead, she claims that the parties entered into a written agreement regarding the treatment of this property and that the decree of divorce merely reflects this agreement. According to Karen, the parties agreed that Mike would substitute his separate property interest in the Sea Island property (valued at approximately $21,000) for a $21,000 judgment for Karen’s attorney’s fees, awarded against him and in favor of Karen.

The Texas Family Code authorizes written agreements concerning the division of a couple’s property and liabilities. See Tex. Fam.Code Ann. § 7.006 (Vernon 1998). A party to a divorce may be estopped from attacking a judgment on the ground that it divested him of his separate property, where the judgment was made pursuant to an agreement between the parties. See McLendon v. McLendon, 847 S.W.2d 601, 608 (Tex.App.—Dallas 1992, writ denied); Boyett v. Boyett, 799 S.W.2d 360, 363 (Tex.App.—Houston [14th Dist.] 1990, no writ). The trial court’s findings of fact and conclusions of law state, “[t]he parties entered into Rule 11 Stipulations regarding the separate property of each party which were approved by the Court.” Mike, however, alleges that there is no rule 11 agreement pertaining to the Sea Island property.

Texas Rule of Civil Procedure 11, entitled “Agreements To Be in Writing,” provides that an agreement between parties or their attorneys will not be enforced unless it is “in writing, signed, and filed with the papers as part of the record.... ” Tex.R. Civ. P. 11. There is no rule 11 agreement in the record now before us nor anything else to support the trial court’s finding that the parties entered into “Rule 11 Stipulations regarding the separate property for each party.” For this reason, we must conclude that the trial court had no authority to divest Mike of his separate property even though Mike was justly compensated for it. Therefore, we find the trial court erred in its division of marital property and sustain the complaint raised in Mike’s third issue.

An appellate court does not have the authority to render judgment dividing marital property of the parties. See McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex.1976); Robles v. Robles, 965 S.W.2d 605, 621 (Tex.App.—Houston [1st Dist.] 1998, pet. denied); McElwee v. McElwee, 911 S.W.2d 182, 188 (Tex.App.—Houston [1st Dist.] 1995, writ denied). Thus, even though modifying the decree of divorce to comply with the bench ruling would seemingly eliminate the problem, we do not have the power to do so. Therefore, we must reverse and remand this case to the trial court for a new division of marital property.

B. Community Property

As we have found that the trial court’s erroneous award of Mike’s separate property to Karen requires reversal of the property division, we need not reach Mike’s claim of error in the overall community property division. Nevertheless, for reasons explained below, we are compelled to address the manner in which Mike has presented this issue to us and to emphasize the critical role of the appellate advocate in accurately and fairly representing the record in briefing to this court.

Mike argues that it was an abuse of discretion for the trial court to award “over 90% of the community property” to Karen. It is overwhelmingly apparent to this court that Mike’s brief not only misrepresents the trial court’s actions in this regard, but also fails to disclose material facts appearing in the record that are essential to a proper determination of his claim. Specifically, Mike’s unilateral calculation of a 90% community property award to Karen is based upon the parties’ pre-trial inventory valuations, and not on valuations used by the trial court in its property division. Mike complains of bills totaling over $123,000; yet, the invoices on which he bases his arguments are outside the record. It is improper for parties to rely on matters outside the record in making arguments to the court. See, e.g., Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (holding parties are to confine their arguments and factual recitations to matters contained in the record). Perhaps most egregious is Mike’s failure to recognize or even mention the debts assessed against each party’s share of the community estate in arguing that the trial court made a disproportionate division of community property in favor of Karen. According to the trial court’s spreadsheet attached to its findings of fact and conclusions of law, Mike’s share in the division of the community estate, including property and debts, was $13,642.13, while Karen’s share was a negative $22,847.11. The “facts,” as represented in Mike’s brief, do not even approach a fair portrayal of the facts appearing in the record.

The Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court. See Tex. DisciplinaRY R. Professional Conduct 3.03(a)(1) (stating that a “lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”). Similarly, both the Texas Lawyer’s Creed and the Texas Standards of Appellate Conduct admonish counsel against making misrepresentations to a court. The duty of honesty and candor a lawyer owes to the appellate court, includes fairly portraying the record on appeal. Misrepresenting the facts in the record not only violates that duty but subjects offenders to sanctions. See American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 242 (Tex.App.—El Paso 1999, pet. denied).

Counsel who mischaracterize or misrepresent the facts in the appellate record impose a tremendous hardship on the reviewing court and its staff. The voluminous case load and the sheer size of the appellate records in many cases often make for a very time-consuming appellate review. When counsel misrepresent the facts on which their legal arguments are based, they not only delay the entire process by unnecessarily adding to the court’s workload but also render a tremendous disservice to their clients. It is also very poor strategy to misrepresent the record because any material misstatements and/or omissions will almost certainly be detected by opposing counsel, the appellate panel, and/or the court’s alert and able staff. In this case, Mike’s factual representations constituted such an obvious mischaracteri-zation of the record that the discrepancies were apparent to all.

Our adversary system contemplates that each party’s advocate will present and argue favorable and unfavorable facts in the light most advantageous to his client; it does not contemplate misrepresentation or mischaracterization of those facts. While a lawyer may chal-lenge the legal effect of unfavorable facts, he may not misrepresent them to the court. Where the record contains unfavorable facts, the appellate advocate should fairly disclose and portray them in his brief. Of course, having done so, he may then zealously and vigorously challenge their impact on the case or argue for the application of law which would minimize or eliminate the court’s valid consideration of them. Failure to observe these very basic standards of appellate practice erodes the ethical standards on which the legal profession and the appellate process are based.

Mike’s blatant misrepresentation and mischaracterization of the facts in his briefing to this court is inexcusable. We find good cause for ordering him to pay all costs of this appeal, and so order. See Tex.R.App. P. 43.4.

VII. Conclusion

We affirm the portion of the judgment of the trial court pertaining to the custody order, and we reverse and remand the portion of the judgment pertaining to the property division.

      . Both parties included extensive factual narratives in their briefs that had nothing to do with the issues raised in this appeal, often straying outside the record. Briefs are supposed to concisely state the facts pertinent to the issues presented. See Tex.R.App. P. 38.1(f). Parties are to confine their arguments and factual recitations to matters contained in the record. See Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (citing Tex R.App. P. 38.1(f), 38.1(h)). Appellate briefs are not to be used as a means of publicly venting anger or animosity or causing embarrassment or shame to the opposing party based on matters outside the record; rather, the brief is to outline the facts in the record supporting the parties' arguments.

        . To the extent Mike is attempting to argue that it is error in and of itself (not because it violates the right to a trial by jury) to replace a juror with an alternate when the juror was not disqualified, this is an issue of first impression. Section 62.020, which authorizes the use of alternate jurors, does not address whether the trial court has discretion in replacing regular jurors with alternate jurors or whether it can only replace a juror in certain situations. See Tex. Gov’t Code Ann. § 62.020 (Vernon 1998). The only indication from tire plain meaning of the statute of when the court has no discretion, but “shall replace” regular jurors with alternates is when they "become or are found to be unable or disqualified to perform their duties.” Tex Gov’t Code Ann. § 62.020(d) (Vernon 1998). However, Mike has presented no argument or authorities to support the notion that it is error to replace a juror with an alternate when the juror was not disqualified. “The brief must contain a clear and concise argument for the contention made, with appropriate citations to authorities and the record.” Tex.R.App. P. 38.1(h). To the extent Mike has raised this issue, he has waived it.

      . Mike emphasizes the Texas Supreme Court’s recognition in McDaniel that the availability of alternate jurors does not change the definition of “disabled from sitting.” 898 S.W.2d at 252 n. 1. The McDaniel court went on to note that despite the availability of alternate jurors, a jury still must consist of twelve members unless not more than three jurors die or become disabled from sitting. Id. In making this statement, the McDaniel court was clearly referring to a situation in which alternates are used but there are still fewer than twelve members. We are not addressing the definition of “disabled from sitting” but rather whether Mike was denied his constitutional right to a jury of twelve members. Because the case before us does not involve a jury of fewer than twelve members, these statements from McDaniel are not applicable.

      . The Texas Constitution provides "[g]rand and petit juries in the District Courts shall be composed of twelve men....” Tex. Const. Art. V, § 13.

      . Although these cases were decided under former rule 81(b) of the Texas Rules of Appellate Procedure, the rule was only changed to omit the phrase “reasonably calculated to cause” an improper judgment, and no substantive change was intended. See Magee v. Ulery, 993 S.W.2d 332, 337 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (citing Tex. R.App. P. 44.1 cmt. (Vernon 1998)).

      . In fact, Mike mischaracterized the decree of divorce when he said it "gives Karen the sole right to make medical decisions.” The decree of divorce gave Karen "the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment of the child.” However, it also gave both Mike and Karen the right to consent to medical, dental, and surgical treatment involving an immediate danger to the health and safety of the child, during an emergency. Additionally, the decree gave each parent, during periods of possession, the right to consent to medical and dental care not involving an invasive procedure.

      . In the event that Mike meant to assert that the trial court erred in granting Karen the exclusive right to consent to medical decisions, he has not briefed this issue. Issues not briefed are waived. See Tex.R.App. P. 38.1(h).

      . We note that Mike’s appellate brief does not contain any references to the record in its "Statement of Facts,” and that his argument under this issue makes only one reference to the record. This briefing is in clear violation of Texas Rule of Appellate Procedure 38.1(f).

      . In the section of the Texas Lawyer’s Creed pertaining to a lawyer’s interaction with the court, the lawyer steadfastly pledges “I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.” Texas Lawyer’s Creed, Lawyer and Judge 6 (emphasis added).

      .In the section of the Texas Standards of Appellate Conduct pertaining to a lawyer’s duties to the court, appellate counsel are instructed not to "misrepresent, mischaracterize, misquote or miscite the factual record or legal authorities.” Texas Standards of Appellate Conduct, Lawyer’s Duties to the Court 4.


author: DAVIS, Chief Justice. VANCE, Justice,

text:
    Francisco Javier CASAS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-00-234-CR.
    Court of Appeals of Texas, Waco.
    Nov. 22, 2000.
    Rehearing Overruled Jan. 3, 2001.

      Kenneth W. Smith, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Houston, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   MEMORANDUM OPINION

DAVIS, Chief Justice.

Francisco Javier Casas pleaded nolo contendere to sexual assault of a child, and, pursuant to a plea agreement, the court deferred an adjudication of guilt and placed him on community supervision for eight years. After a contested hearing, the court adjudicated Casas’s guilt and sentenced him to ten years’ imprisonment. Casas filed a general notice of appeal.

An appellant who has pleaded nolo contendere in exchange for deferred adjudication must comply with appellate rule 25.2(b)(3) when he seeks to appeal a subsequent adjudication and sentencing. See Craddock v. State, 32 S.W.3d 886, 887 (Tex.App.—Waco 2000, no pet. h.); see also Manuel v. State, 994 S.W.2d 658, 662 (Tex.Crim.App.1999); Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App.1996) (both applying former appellate rule 40(b)(1)). Casas’s general notice of appeal does not comply with this rule.

Because Casas’s notice of appeal does not comply with rule 25.2(b)(3), we do not have jurisdiction over this appeal. See Craddock, 32 S.W.3d at 887; Okigbo v. State, 960 S.W.2d 923, 925 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd). The time for perfecting his appeal has elapsed, so this defect cannot be corrected. See State v. Riewe, 18 S.W.3d 408, 413-14 (Tex.Crim.App.2000); Craddock, 32 S.W.3d at 888. Accordingly, we dismiss this appeal for want of jurisdiction.

Justice, VANCE concurring.

VANCE, Justice,

concurring.

Although I remain convinced that Craddock v. State was incorrectly decided, the court correctly applies that decision in this appeal. Craddock v. State, 32 S.W.3d 886 (Tex.App.—Waco, 2000). Accordingly, I join the court’s opinion and will hereafter do so in similar circumstances.


author: MURPHY, Chief Justice.

text:
    Marquis De La Victor GRANT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-99-00757-CR-14-99-00759-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2000.

      Gary A. Taylor, Austin, for appellant.
    Michael Adrian Mark, Liberty, for ap-pellee.
    Panel consists of Chief Justice MURPHY and Justices MAURICE AMIDEI and HUDSON.
   OPINION

MURPHY, Chief Justice.

A jury found Marquis De La Victor Grant (“appellant”), guilty of: 1) unlawful possession of marihuana (10,482); 2) taking a weapon from a peace officer (10,483); and 3) attempted capital murder (10,484). Additionally, the jury returned a negative deadly weapon finding in cause number 10,483, and an affirmative deadly weapon finding in cause number 10, 484. The trial court, however, entered affirmative deadly weapon findings in both cause numbers 10,483, and 10,484. This appeal follows.

Appellant raises thirteen points of error, consisting of six general issues. Specifically, in points of error one, two and three, appellant asserts that the evidence was legally and factually insufficient to prove that the offenses, described above, occurred in Chambers County. We need not reach the merits of appellant’s claim because he failed to properly preserve error.

The burden of objecting to the prosecution’s failure to prove venue is on the defendant. Vasquez v. State, 491 S.W.2d 173 (Tex.Crim.App.1973); Mosley v. State, 643 S.W.2d 212, 215 (Tex.App.—Fort Worth 1982, no pet.). When the issue of venue is not raised in the trial court, it is presumed that proper venue was proved. Black v. State, 645 S.W.2d 789, 792 (Tex.Crim.App.1983); Clark v. State, 558 S.W.2d 887, 891 (Tex.Crim.App.1977); Mosley, 643 S.W.2d at 215. A motion for instructed verdict, complaining that the State failed to prove the elements of the offense as set forth in the indictment is insufficient to preserve the issue of venue. Mosley, 643 S.W.2d at 216; Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.—El Paso 1999, no pet.); Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.—El Paso 1997, no pet.). Venue is not considered an element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981).

Appellant moved for instructed verdict “asserting that the State did not succeed in showing each and every element of the offense, particularly as it applies to their allegation of attempted capital murder.” This objection failed to preserve the issue of venue for appeal. Appellant’s points of error one, two, and three are overruled.

In points of error four and five, appellant contends that his defense counsel’s failure to specifically challenge that the offenses alleged in the indictment occurred in Chambers County, amounted to ineffective assistance of counsel under the United States and Texas Constitutions. We disagree. Appellant has brought forth no proof of ineffective assistance of counsel.

The U.S. Supreme Court established a two prong test to determine whether counsel is ineffective at the guilt/innocence phase of a trial. First, appellant must demonstrate that counsel’s performance was deficient and not reasonably effective. Second, appellant must demonstrate that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Essentially, appellant must show (1) that his counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id.; Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App.1992). “A reasonable probability is ‘a probability sufficient to undermine confidence in the outcome of the proceedings.’ ” Stults v. State, 23 S.W.3d 198, 208 (Tex.App.—Houston [14th Dist.] 2000, no pet. h.) (quoting Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998)). Moreover, the appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson, 973 S.W.2d at 956.

In Jackson, the court of criminal appeals refused to hold counsel’s performance deficient given the absence of evidence concerning counsel’s reasons for choosing the course he did. 877 S.W.2d 768, 772 (Tex.Crim.App.1994); see Jackson v. State, 973 S.W.2d 954, 956-57 (Tex.Crim.App.1998) (finding that the record on appeal inadequate to evaluate that trial counsel provided ineffective assistance). “It is critical for an accused relying on an ineffective assistance of counsel claim to make the necessary record in the trial court.” Stults, 23 S.W.3d at 208. When there is no hearing on ineffective assistance of counsel, an affidavit is vital to the success of an ineffective assistance claim. Stults, 23 S.W.3d at 208; Howard v. State, 894 S.W.2d 104, 107 (Tex.App.—Beaumont 1995, pet. ref'd).

Appellant did not file a motion for a new trial, and therefore failed to develop evidence of trial counsel’s strategy as was suggested by Judge Baird in his concurring opinion in Jackson. See Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.—Houston[1st Dist.] 1994, pet. ref'd) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claim; in order to properly evaluate an ineffective assistance claim, a court needs to examine a record focused specifically on the conduct of trial counsel such as a hearing on application for writ of habeas corpus or motion for new trial); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex.App.—Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex.App.—Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim).

In the present case, the record is silent as to the reasons appellant’s trial counsel chose the course he did. The first prong of Strickland is not met in this case. Jackson, 877 S.W.2d at 771; Jackson, 973 S.W.2d at 957. Due to the lack of evidence in the record concerning trial counsel’s reasons for these alleged acts of ineffectiveness, we are unable to conclude that appellant’s trial counsel’s performance was deficient.

Accordingly, appellant’s points of error four and five are overruled.

In point of error six, appellant contends that the trial court erred in entering an affirmative deadly weapon finding on the judgment in cause number 10,-483 after the jury returned a negative response to the deadly weapon issue in that cause. We agree.

In a jury trial, the issue of whether a deadly weapon was used or exhibited during the commission of the offense, is an issue of fact which must be submitted to the jury for its exclusive determination. Ex parte Thomas, 638 S.W.2d 905, 907 (Tex.Crim.App.1982). Since appellant was tried by a jury, the trial court had no authority to make an affirmative finding that appellant used a deadly weapon. Davis v. State, 897 S.W.2d 791, 793 (Tex.Crim.App.1995); Easterling v. State, 710 S.W.2d 569, 581 (Tex.Crim.App.1986); Ex parte Thomas, 638 S.W.2d at 907.

In a jury trial, a trial court is authorized to enter an affirmative finding on a deadly weapon issue in three situations: where the jury has 1) found guilt as alleged in the indictment and the deadly weapon has been specifically plead as such using “deadly weapon” nomenclature in the indictment; 2) found guilt as alleged in the indictment but, though not specifically plead as a deadly weapon, the weapon plead is per se a deadly weapon; or 3) affirmatively answered a special issue on deadly weapon use. Davis, 897 S.W.2d at 793; DeAnda v. State, 769 S.W.2d 522, 523 (Tex.Crim.App.1989); Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985).

The jury found appellant guilty of the offense as charged in the indictment in cause number 10,483. However, the jury returned a negative response to a deadly weapon issue. Appellee contends that the trial court correctly entered a deadly weapon finding based on the jury returning a verdict of guilty as charged in the indictment.

The indictment, however, fails to place the issue of a deadly weapon before the trier of fact. The indictment reads as follows: “[W]ith the intention of harming TROOPER WILLIAM GORDON, intentionally and knowingly and with force take and attempt to take from TROOPER WILLIAM GORDON, a peace officer, the officer’s firearm.” While the indictment does use the term “firearm,” this is insufficient to support a deadly weapon finding. A deadly weapon issue is proper when the deadly weapon is- used “during the commission of the offense or during the immediate flight therefrom.” Dowdle v. State, 11 S.W.3d 233, 235 (Tex.Crim.App.2000). Moreover, an affirmative deadly weapon finding will arise as a matter of law when “the trier of fact finds that a pistol has been used in the commission of the offense.” Polk, 693 S.W.2d at 394. “Used in the commission of the offense” means that appellant employed or utilized a deadly weapon in order to facilitate the associated offense. Dowdle, 11 S.W.3d at 237. The indictment fails to allege, however, that appellant used a firearm to commit the offense of taking an officer’s firearm. The mere presence of the term “firearm” in an indictment does not categorically support a deadly weapon finding. The trial court improperly entered a deadly weapon finding in cause number 10,483 in the absence of an affirmative finding by the trier of fact. Appellant’s point of error six is granted. Accordingly, we order that the following be deleted from the judgment: “Affirmative finding that a deadly weapon, to wit: a firearm, was used during the offense: Taking or Attempting to Take a Weapon From a Peace Officer.”

In points of error seven, eight, and nine, appellant asserts that an unloaded pistol is neither a firearm, nor a deadly weapon. We disagree. A deadly weapon is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury....” Tex.Pen.Code Ann. § 1.07(a)(17) (Vernon 1994). There is no requirement that the firearm be loaded. Wright v. State, 582 S.W.2d 845, 847 (Tex.Crim.App. [panel op.] 1979). In fact, “[a] gun need not be serviceable in order to be classified as a deadly weapon.” Osborne v. State, 832 S.W.2d 407, 408 (Tex.App.—Houston [14th Dist.] 1992, no pet.). Accordingly, appellant’s points of error seven, eight, and nine are overruled.

Appellant next contends in points of error ten, eleven, and twelve, that the jury’s negative response to a deadly weapon finding in cause number 10,483, in connection with the prohibition against double jeopardy under the United States and Texas Constitutions, requires that the deadly weapon finding made by the jury in cause number 10,484 be deleted. Specifically, appellant argues that the affirmative deadly weapon finding in cause number 10,484 after the negative deadly weapon finding in cause number 10,483, amounts to a second prosecution for the same offense after acquittal. We disagree.

In determining if jeopardy attaches, the court must inquire whether each offense contains an element not contained in the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306, 309 (1932). When a different element is present, double jeopardy does not attach. Id. If each element of the offense in the first indictment, however, is identical to the offense in the second indictment, double jeopardy attaches and bars successive prosecutions. Id. “The essential elements relevant to a double jeopardy inquiry are those of the charging instrument....” Franklin v. State, 992 S.W.2d 698, 703 (Tex.App.—Texarkana 1999, pet. ref'd); Ward v. State, 938 S.W.2d 525, 528 (Tex.App.—Texarkana 1997, pet. ref'd). The relevant factors to focus on in a charging instrument include the time and place of the offense, the identity of the defendant, the identity of the complainant, and the manner and means used in committing the offense. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994).

Double jeopardy does not apply in this case because the same offense was not involved. The jury found that appellant did not use a deadly weapon in the commission of the offense of taking a peace officer’s firearm. The jury did find, however, that appellant used a deadly weapon in the offense of attempted capital murder. The offenses of taking a peace officer’s firearm, and attempted capital murder, are two distinct offenses. The findings made by the jury as they relate to these distinct offenses do not invoke a protection against double jeopardy.

“[Cjollateral estoppel is a component of federal constitutional double jeopardy jurisprudence.... ” Reynolds v. State, 4 S.W.3d 13, 19 (Tex.Crim.App.1999); Ladner v. State, 780 S.W.2d 247, 250 (Tex.Crim.App.1989). Collateral es-toppel is the principle that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties. Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469, 475-76 (1970). Collateral es-toppel, however, does not apply to the present case. The Ashe doctrine of collateral estoppel only applies where there are two trials, and not where a single trial involves multiple counts. Hite v. State, 650 S.W.2d 778, 784 n. 7 (Tex.Crim.App.1983); Ward v. State, 938 S.W.2d 525, 528 (Tex.App.—Texarkana 1997, pet. ref'd) (finding that collateral estoppel did not apply where two counts of perjury were tried together, and the jury acquitted under one count, and convicted under the other count). While our present case involves multiple indictments, rather than one indictment involving multiple counts, the distinction is irrelevant. There was only one trial. Collateral estoppel, as a corollary of the double jeopardy clause, requires that appellant have been twice in jeopardy. State v. Smiley, 943 S.W.2d 156, 156-57 (Tex.App.—Amarillo 1997, no pet.). “It is elemental that the criteria which triggers double jeopardy is the risk of multiple prosecutions or punishments for the same offense.” Id. at 157. Appellant has not been put in jeopardy twice for the same offense. Accordingly, appellant’s points of error ten, eleven, and twelve, are overruled.

Appellant argues, in point of error thirteen, that the affirmative deadly weapon finding in cause number 10,484 must be deleted because the record reflects that the court below entered the finding on the basis of the affirmative response of the jury to the deadly weapon issue, and not on the basis of the indictment. This argument presupposes that we find that the jury’s affirmative response to the deadly weapon issue in cause number 10,484 is in some way invalidated by the jury’s negative response to the deadly weapon issue in cause number 10,483. We do not. The jury correctly determined that appellant used a deadly weapon to facilitate the commission of the offense of attempted capital murder, and the trial court correctly entered a deadly weapon finding based on the jury’s affirmative response. Appellant’s point of error thirteen is overruled.

The judgment of the trial court is reformed and affirmed.


author: FOWLER, Justice.

text:
    Alice GONZALES, Appellant, v. METHODIST RETIREMENT COMMUNITIES d/b/a Edgewater Retirement Community, Appellee.
    No. 14-99-01212-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2000.
    Rehearing Overruled Jan. 4, 2001.

      Mark W. Stevens, Galveston, for appellants.
    Carla Cotropia, George W. Vie, Galveston, for appellees.
    Panel consists of Justices ANDERSON, FOWLER, and FROST.
   OPINION

FOWLER, Justice.

Alice Gonzales brought this action against her former employer, Methodist Retirement Communities, d/b/a Edgewater Retirement Community, alleging that Edgewater discharged her in retaliation for reporting the abuse or neglect of a nursing home resident. The trial court found that there was no genuine issue of material fact concerning Gonzales’s claim of reporting abuse under section 242.133 of the Texas Health & Safety Code, and “no basis in fact for a finding of reporting of abuse sufficient to sustain a cause of action under the section,’’and granted summary judgment in favor of Edgewater. In one point of error, Ms. Gonzales challenges the granting of the summary judgment. Finding that Gonzales did not report abuse or neglect or other complaint as required by section 242.133, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

Edgewater is a retirement center for senior citizens. Gonzales is a nurse practitioner employed by Edgewater. On the evening of June 25, 1998, Gonzales came on duty to find that an 83 year old resident of Edgewater had fallen from a geriatric chair. After taking the resident’s vital signs, Gonzales phoned Edgewater’s medical director, Dr. Jones. Dr. Jones wanted to know if Gonzales had performed an assessment of the resident’s condition. Gonzales replied that she did not feel capable of judging the extent of the resident’s injuries and wanted to transport the patient by ambulance for an evaluation. Dr. Jones became upset with Gonzales, noting that an ambulance would cost $400, but told her that if she did not feel qualified to do an assessment, she could call Emergency Medical Services. (EMS) Insulted by the reference to her qualifications, Gonzales told Dr. Jones at the end of the phone conversation that he was not a good doctor, and said she was glad he was not taking care of her mother. Gonzales then called EMS.

That evening, Gonzales told the director of nurses, Dorothy Young, what had happened. Gonzales admitted that Dr. Jones seemed to be unhappy, and expressed her belief that the doctor would be upset with her for what she had said. Mrs. Young agreed.

The next day Edgewater fired Gonzales. She was informed that her termination was because of the statements she made to Dr. Jones which Edgewater considered insubordinate.

PROCEDURAL BACKGROUND

After her termination, Gonzales filed suit against Edgewater. She claimed that Edgewater wrongfully terminated her in violation of Texas Health & Safety Code, which provides a cause of action against an institution that terminates employment of a person for reporting abuse or neglect. See Tex. Health & Safety Code Ann . § 242.133(a) (Vernon 1997). As it existed during the relevant time, the statute stated the following:

A person has a cause of action against an institution, or the owner or employee of the institution, that suspends or terminates the employment of the person or otherwise disciplines or discriminates or retaliates against the person for making a report or complaint under this chapter to the department or a law enforcement agency, for reporting the abuse or neglect or other complaint to the person’s supervisors, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the institution.

In her petition, Gonzales alleged that she had advised her supervisors “of [the resident’s] fall, which could only have taken place as the result of neglect ...” During discovery, Gonzales conceded that she had not “reported” anything other than the fact that the resident had fallen.

Q: In other words, you didn’t report there was any abuse of [the resident]?
A: No.
Q: And you didn’t think that [the resident] was abused, did you?
A: No.

The director of nursing also testified that, in their conversation the evening before termination, Gonzales had never used the words “abuse” or “neglect”.

After Gonzales’s deposition had been taken, Edgewater moved for summary judgment, claiming that there was no evidence that Gonzales had reported a claim of abuse or neglect within the meaning of Texas Health & Safety Code. In opposition to Edgewater’s summary judgment motion, Gonzales submitted an affidavit, stating that the resident’s fall from the chair “clearly indicated neglect by some facility staff.” Gonzales felt this neglect was so obvious that she did not need to use the word “neglect” when reporting the incident to her supervisors.

After considering Gonzales’s response, the trial court granted summary judgment to Edgewater, finding that “there is no basis in fact for a finding of reporting abuse sufficient to sustain a cause of action under section 242.133(a) of the Texas Health & Safety Code.” Id. at (a).

STANDARD OF REVIEW

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled its initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiffs cause of action or (2) to establish its affirmative defense to the plaintiffs cause of action as a matter of law. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the non-movant must be taken as true. See Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. See id.

DISCUSSION

According to Edgewater, the evidence produced at the summary judgment proceeding proved that Gonzales neither made a “report” (because she did not file a written complaint), nor told Dr. Jones about an incident of abuse or neglect. Gonzales responds that her conversation was a report, and -she claims that her affidavit did raise a fact issue about whether she reported neglect. She pointed out that it was unusual for the resident to be in a geriatric chair because there was no doctor’s order for one. Furthermore, she contends the fall “clearly indicated neglect by some facility staff ... ”; “[t]his was so obvious that I did not feel it necessary to use the word [sic] ‘neglect.’ ” Consequently, the issues before us are whether Ms. Gonzales made a report and whether she reported neglect. As we explain below, we do not need to address whether Ms. Gonzales made a report because, like the trial court, we conclude as a matter of law that Ms. Gonzales did not report an incident of neglect.

The legislature chose not to define “neglect” in the Texas Health and Safety Code. See Tex. Gov’t Code Ann. § 812.002(a) (Vernon 1998); Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992). The Oxford Encyclopedic English Dictionary defines “neglect” as, “fail[ing] to care for or to do; be[ing] remiss about (neglected their duty; neglected his children ),” and as a “lack of caring; negligence.” Oxford ENCYCLOPEDIC ENGLISH DICTIONARY 973 (1991). Webster’s defines it similarly:

1 a: to give little or no attention or respect to ... disregaed, slight ... b: to fail to attend to sufficiently or properly: not give proper attention or care to ... 2: to carelessly omit doing ... either altogether or almost altogether: leave undone or unattended to through carelessness or by intention ...
syn neglect, omit, disregard, ignore, overlook, slight, and forget can mean in common to pass over something without giving it due or sufficient attention. Neglect implies failure to give full or proper attention to someone or something that has a claim on one’s attention ....

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1513 (1993). Black’s Law Dictionary also contains the same notion of failing to take care of or ignoring:

The omission of proper attention to a person or thing, whether inadvertant, negligent, or willful; the act or condition of disregarding.

Black’s Law Dictionary 1055 (7th ed.1999). Probably most pertinent to [the] neglect to a resident in a retirement home, is Blacks’s definition of a neglected child:

A child whose parents or legal custodians refuse to provide the necessary care and medical services for the child.

Id at 233.

Black’s also notes that, although “neglect” and “negligence” are used synonymously in bailment law, they are from different Latin roots. Id. Words commonly used to define neglect are “omit, disregard, and ignore” and the intent most likely meant in section 242.133(a) is that, by ignoring, disregarding, or being inattentive to the resident, the resident falls into a condition of want or suffering. The implication is that the neglect occurs over a period of time that, in relation to the resident’s condition before the inattention, is significant enough to cause a condition of want or suffering. Thus, for a severely ill patient, a short amount of time may suffice to amount to neglect; for a healthier resident, a longer time may be required.

Turning now to Ms. Gonzales’s conversation with Dr. Jones, we find no indication that Ms. Gonzales reported an act of neglect. As Edgewater pointed out, Ms. Gonzales, when discussing the incident, never used the word “neglect,” not even later that evening when she discussed the fall and the conversation with her supervisor. Ms. Gonzales said only that a resident had fallen out of a geriatric chair. She did not know why or how the resident had fallen, nor did she say or imply that the resident had been ignored and fell because of inattention. We might infer from her comments that an employee may have been careless or negligent in the way they placed the resident in the chair; however, this does not translate into neglect under the statute. Thus, that a resident fell out of a chair into which she should have been buckled, is not, in and of itself, evidence that neglect — as that word is used in the statute — occurred.

Additionally, the thrust of the conversation between Ms. Gonzales and Dr. Jones confirms that Ms. Gonzales was not reporting neglect on the part of someone at Edgewater. Their discussion was not about the fall itself and that it happened, but about the resident’s condition and how best to evaluate her condition. As conveyed by Ms. Gonzales, each party felt frustrated with the other — Dr. Jones, because he thought Ms. Gonzales should be able to evaluate the resident’s condition, and Ms. Gonzales, because she did not feel comfortable evaluating the resident’s condition. The conversation was never about how the patient came to be on the floor, but about how to evaluate the resident’s condition. By the end of the conversation, animosity clearly existed, at least on Ms. Gonzales’s part, such that she sarcastically told Dr. Jones that she would not want him to treat her own mother.

In short, in the conversation, Ms. Gonzales did not report an act of neglect and even if she thought it was an act of neglect, she never put Dr. Jones on notice that, by calling him, she was reporting an act of neglect as contemplated by the Health and Safety Code.

Conclusion

Finding that Edgewater proved that Ms. Gonzales did not report neglect to Dr. Jones, we overrule her point of error and affirm the judgment of the trial court.

      . Act of June 20, 1997, 75th Leg., R.S., ch. 1159, § 1.25, 1997 Tex. Gen. Laws 4363, 4376 (amended 1999) (current version at Tex. Health & Safety Code § 242.133(a)).

      . There is no claim or issue here whether Ms. Gonzales reported abuse or “other complaint”. The only issue is whether she reported neglect.


author: MACK KIDD, Justice.

text:
    David P. DITRAGLIA, Appellant, v. Anna Marie ROMANO, Appellee.
    No. 03-00-00389-CV.
    Court of Appeals of Texas, Austin.
    Nov. 30, 2000.

      William H. Alberts, Mcleroy, Alberts & Benjamin, P.C., Austin, for appellee.
    Mark Cohen, Austin, for appellant.
    Before Justices JONES, KIDD and YEAKEL.
   MACK KIDD, Justice.

David P. Ditraglia (“Ditraglia”) seeks reversal of the district court’s order denying his motion for modification of joint managing conservatorship as it relates to his daughter, Maya Rose Ditraglia (“Maya”). We will affirm.

BACKGROUND

Ditraglia and Anna Marie Romano (“Romano”) divorced in 1994. The original divorce decree, filed on March 1, 1994, authorized joint managing conservatorship of their two daughters, Elena Catherine Ditraglia (“Elena”) and Maya. At the time of the divorce, Elena was nine years old and Maya was five years old. In addition to joint custody, possession was also split between the parents, both of whom lived in Austin, where the children attended private school. Ditraglia later moved to Wimberley. On July 1, 1998, pursuant to agreement between the parents, the district court rendered an order modifying the divorce decree. The order did not change the original conservatorship orders, but specified that “Maya Rose Ditraglia will attend Matthews Elementary School in the Austin Independent School District beginning August 1, 1998,” and provided that when both children attained high school age, they would be able to choose which high school they would attend. More precisely, “if the children specifically request a desire to attend high school in the Wimberley School District, mother will not object and in like manner, if the children express a specific desire to attend high school in the Austin Independent School District, then father will not object.” Upon reaching high school age, Elena elected to attend high school in Wimberley, which necessitated a possesso-ry change from Romano’s home to Ditrag-lia’s household. Maya, by then a nine-year-old third-grader, became distressed about being separated from her sister, with whom she had a close relationship. Ditraglia filed a petition to modify the prior possession order, conservatorship duties, and child support with respect to both Elena and Maya. Romano did not object to the possession modification pertaining to Elena, but contested the changes as to Maya. Upon completion of the appropriate hearings, the district court modified the order as to the possession of Elena, but refused any modification as to Maya. Ditraglia appeals. Ditraglia argues that the trial court abused its discretion when it denied the motion to modify the prior possession order with respect to Maya.

DISCUSSION

The Texas Family Code allows the court to modify the terms and conditions of a joint managing conservatorship if:

(1)(A) the circumstances of the child or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order; or
(B) the order has become unworkable or inappropriate under the existing circumstance; and
(2) a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child.

Tex.Fam.Code Ann. § 156.202 (West 1996). The party moving to modify the joint conservatorship order has the burden of proving that the requirements have been met. Considine v. Considine, 726 S.W.2d 253, 255 (Tex.App.—Austin 1987, no writ).

Upon review, the district court is given wide latitude in determining the best interest of the child and will be reversed in such cases only when it has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). A district court abuses its discretion only when it acts in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This Court may not reverse for abuse of discretion merely because we disagree with a decision of the district court. Id. at 242.

In its amended findings of fact and conclusions of law, the district court found that: (1) there had been no material or significant change in circumstances of the children or their parents; (2) the previous order had not become unworkable or inappropriate, with respect to Maya; and (3) modification of the order would not be in Maya’s best interest. See Tex.Fam.Code Ann. § 156.202. Ditraglia failed to meet his burden of proof as the moving party, with respect to Maya. See Considine, 726 S.W.2d at 255. On appeal, Ditraglia argues that the current conservatorship order pertaining to Maya has become unworkable or inappropriate and is against her best interest.

Unworkable or Inappropriate

The court may modify the terms and conditions of a joint managing conser-vatorship if the order has become unworkable or inappropriate under the existing circumstances. Tex.Fam.Code Ann. § 156.202(1)(B). An order has become unworkable or inappropriate when compliance with its terms detrimentally affects the health, education, and welfare of the child. Bohls v. Bohls, 188 S.W.2d 1003, 1005 (Tex.Civ.App.—Austin 1945, no writ) (modifying possession because previous order had caused child noticeable nervousness, difficulty in eating and sleeping, and inability to adequately complete school work). Courts have also ruled that changed circumstances that would injuriously affect the child’s best interest or create an unstable environment for the child also may render a possession order unworkable or inappropriate. See Brown v. Brown, 500 S.W.2d 210, 215-16 (Tex.Civ.App.—Texarkana 1973, no writ) (changing possession because mother had mentally and physically abused her children); see also Eason v. Eason, 860 S.W.2d 187, 190-91 (Tex.App.—Houston [14th Dist.] 1993, no writ) (holding that child moving nine times within four years and mother’s cohabitation with two men out of wedlock detrimentally affected child’s welfare and justified possession modification).

Ditraglia has not asserted facts that show detriment to Maya’s health, education, and welfare. Rather, he presents evidence that the previous order has become unworkable or inappropriate for him due to additional time and expense incurred since his move to Wimberley. Although Maya may miss Elena when they are not together, there is no evidence that those feelings have detrimentally affected her health or welfare. She is still doing well in school. She appears happy when playing with friends and is now more outgoing in class than when she began attending Matthews Elementary. Ditraglia testified in the district court that when he has possession of Maya, it is necessary for him to wake her at 5:00 a.m., and she is gone from the house for twelve to fourteen hours on weekdays due to travel between Wimberley and her school in Austin. He asserts that it is not in Maya’s best interest for her to maintain such a schedule, but no evidence was presented to show that her routine has detrimentally affected her health or welfare.,

Furthermore, Ditragila alleges that there was no evidence showing that the current order was workable; however, this is not the standard. The party seeking to modify the order has the burden to show that the present order is unworkable. Considine, 726 S.W.2d at 255. “Under the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion.” Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.—Austin 1997, no pet). Since Ditraglia has not presented evidence that would impeach the district court’s findings, we are bound to accept those findings as true. Berner v. Berner, 146 S.W.2d 1017, 1020 (Tex.Civ.App.—Galveston 1941, writ dism’d).

Positive Improvement and Best Interest of the Child

Even if the current order had become unworkable, any modification would also have to be a positive improvement for and in the best interest of Maya. Tex.Fam.Code Ann. § '156.202(2). A finding that an order is unworkable is not itself enough because, “[t]he best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child.” Tex.Fam.Code Ann. § 153.002 (West 1996). Ditraglia argues that the current order violates public policy because it splits the two girls and is therefore not in the best interest of Maya.

Courts have held that, absent clear and compelling reasons, children of the same marriage should not be separated. See Beasley v. Beasley, 304 S.W.2d 158, 161 (Tex.Civ.App.—Dallas 1957, writ ref'd n.r.e.); O. v. P., 560 S.W.2d 122, 127 (Tex.Civ.App.—Fort Worth 1977, no writ). However, jurisdictions have split on this matter. In MacDonald v. MacDonald, the court ruled that split custody was simply one factor of many to balance when determining the best interest of the child. 821 S.W.2d 458, 463 (Tex.App.—Houston [14th Dist.] 1992, no writ). Other factors to consider include: the present and future emotional and physical needs of the child, the stability of each parent’s home, and the present and future emotional and physical danger to the child. Id. at 461. The court of appeals reasoned that the Texas Family Code “does not require a party to show clear and compelling reasons for splitting custody nor does it require a party to prove by clear and convincing evidence that a split custody is proper,” but it does always require the courts to consider the best interest of the child as the top priority when reviewing requests regarding con-servatorship, possession, and access to the child. Id. at 463. We agree with this line of reasoning.

Although the sisters have a close relationship, they are separated from one another only a few days of the week. They will still have enough time together to continue their close relationship with one another. Maya is a straight-A student in her present school. * Moving a child in the middle of the school year is generally not in the best interest of the child. No evidence was presented to suggest that Romano’s home is an unstable environment in which to raise a child, and there was no indication that Maya would face present or future physical danger by continuing to live with her mother.

Furthermore, we note that the 1998 modified order was agreed upon by Romano and Ditraglia. That order clearly stated that Maya would attend Matthews Elementary School and both girls would have the choice of which high school to attend. Apparently, both parents agreed to such an order because they believed it would be in the best interest of their children to choose for themselves where to attend high school. Inherent in such an agreement is the possibility that the girls would be separated by the time they reached high school.

Ditraglia has not presented evidence to controvert the trial court’s finding that changing possession of Maya would not be a positive improvement or in her best interest. We do not find that the trial court abused its discretion in refusing to change Maya’s primary residence from her mother’s home to her father’s home.

CONCLUSION

Having found that the district court did not abuse its discretion in refusing to modify the order in regards to Maya, we affirm the district court’s judgment.

      . Ditraglia had remarried, and he and his new wife were willing to have Elena live with them while she attended high school.

      . We note that Maya turned ten on October 20, 2000. When a "child is ten years of age or older, the child may, by writing filed with the court, choose the managing conservator, subject to the approval of the court.” Tex. Fam.Code Ann. § 153.008 (West Supp .2000). Furthermore, in a non-jury trial, "when the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child ten years of age or older.... Interviewing a child does not diminish the discretion of the court.” Id. § 153.009(b) (West Supp.2000).