author: STEVE McKEITHEN, Chief Justice.

text:
    Jesus Daniel ALVARADO, Appellant, v. The STATE of Texas, Appellee.
    No. 09-09-00436-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted April 22, 2010.
    Decided May 19, 2010.
    Discretionary Review Dismissed Sept. 15, 2010.

      Clinard J. Hanby, The Woodlands, for appellant.
    Brett W. Ligón, Dist. Atty., William J. Delmore III, Asst. Dist. Atty., Conroe, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

A jury found Jesus Daniel Alvarado guilty of aggravated assault with a deadly weapon. In punishment, the trial court found Alvarado to be an habitual offender and imposed a life sentence. See Tex. Pen.Code Ann. § 22.02(a)(2) (Vernon Supp. 2009). The sole issue raised on appeal contends an erroneous jury instruction on the use or exhibition of a knife as a deadly weapon caused egregious harm. Because the error did not cause egregious harm, we affirm the judgment.

The trial court submitted a jury instruction under Section 1.07(a)(17)(A). See Tex. Pen.Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2009) (“Deadly weapon” means “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury[.]”). The knife admitted into evidence in this case is a large kitchen knife with a blade between five and six inches in length. Kitchen knives are designed for purposes other than inflicting death or serious bodily injury; thus, a kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or seri-' ous bodily injury. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991); see also Tex. Pen.Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009) (Deadly weapon means “(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury”). Because Alvarado did not object to the instruction that a knife is a deadly weapon, the charge error is reversible error only if that error resulted in egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g).

“Errors that result in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App.2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)); see also Almanza, 686 S.W.2d at 172. “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

The trial testimony showed that the police responded to a call of “disturbance with weapons[.]” The police detained Alvarado nearby and eventually recovered a kitchen knife outside. The officer who recovered the knife testified that in his opinion the knife was a deadly weapon that is capable of causing death. An officer who examined the scene testified that a door had been kicked completely off of its hinges and someone had kicked in a hole by the door handle. The complainant had a red mark on her cheek. The complainant signed an affirmation of prosecution on the night of the offense but later signed an affidavit of non-prosecution.

At trial, the complainant testified that she still loved Alvarado and that she was testifying involuntarily under subpoena. According to the complainant, Alvarado kicked in the locked door, entered the complainant’s room, “[a]nd he come in with a knife, and he come at my head and I ducked and he left my room.” She testified that if she had not ducked, the knife “would have probably went in my head.” When asked about a prior statement she had made, the complainant recalled that she had stated that Alvarado came into her room with the knife toward her head. She agreed that “he’s the one that came at me with the knife.” The complainant insisted, however, that Alvarado did not threaten to kill her.

On cross-examination, the complainant stated that she did not believe that Alvarado tried to pick the lock with the knife, but she was not certain. According to the complainant, Alvarado “was trying to get everybody scared and for everybody to go[,]” and Alvarado acted the way he did that day because the complainant had been smoking crack cocaine with two of her friends. When asked if there was anything to stop Alvarado from stabbing her, the complainant replied, “I guess he caught his snap.”

The complainant’s female acquaintance testified that after Alvarado broke down the door he shoved the complainant onto the bed and held the knife up to the complainant’s head, between her eye and ear. This witness testified that Alvarado threatened to kill the complainant, that he left when he realized someone had called for the police, and as he left he told the witness that “next time it will be me that he kills.” At the close of the State’s case-in-chief, defense counsel moved for a directed verdict on grounds that the State “failed to prove that [the defendant] exhibited or used a deadly weapon in the course of committing an assault.”

During jury argument, the prosecutor referred the jury to the definition of “deadly weapon” and stated, “Deadly weapon is defined. It says you are instructed that a knife is a deadly weapon. Here it is.” Counsel argued the evidence established that Alvarado intentionally or knowingly threatened bodily injury to the complainant if the jury believed either the eyewitness’s testimony that Alvarado put a knife to the complainant’s head and threatened to kill her, or the complainant’s testimony that Alvarado came at her with a knife and she had to duck to avoid being struck by the knife. The prosecutor added, “We’ve already talked about there’s no question he exhibited a deadly weapon.”

Defense counsel argued, “The State seems to be indicating to you that somehow the mere existence of this knife— we’ve got a knife; it’s aggravated assault. That’s not the way it works, folks. The knife has to be used to be exhibited.” Defense counsel argued that the evidence supported a scenario that Alvarado had no intention to assault anyone, but he used the knife to try to open the door, and he then became frustrated and kicked the door in because he was trying to stop his girlfriend from using drugs. In closing, the prosecutor argued that there was no evidence that Alvarado used the knife to try to manipulate the lock on the door.

The abstract paragraph instructed the jury that “[a] person commits an offense if the person intentionally or knowingly threatens to cause imminent bodily injury to another, and the actor uses or exhibits a deadly weapon during the commission of the assault.” The application paragraph read, as follows:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about March 16, 2009, in Montgomery County, Texas, the defendant, Jesus Daniel Alvarado, AKA: Jesse Alvarado, did then and there intentionally or knowingly threaten imminent bodily injury to [the complainant], and during the commission of the assault, the defendant used or exhibited a deadly weapon, to-wit: a knife, you will find the defendant guilty of Aggravated Assault With A Deadly Weapon as charged in the indictment.

The charge included instructions on the lesser-included misdemeanor offenses of Class A Assault and Class C Assault.

When the trial court polled the jury, one of the jurors stated that she was “not happy about it” but would say yes. Under further questioning, the juror stated, “there was a knife, I agree with that. I just — what was the intent? Everybody was under the influence of drug and alcohol.” The trial court ordered the jury to deliberate further, and the jury returned with a unanimous verdict.

On appeal, Alvarado argues that by defining “deadly weapon” as “anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” and by instructing the jury that a knife is a deadly weapon, the trial court both failed to inform the jury that it must find that the knife “in the manner of its use or intended use, is capable of causing death or serious bodily injury” and instructed a verdict on an element of the offense that had been contested at trial. Compare Tex. Pen.Code Ann. § 1.07(a)(17)(A), with Tex. Pen.Code Ann. § 1.07(a)(17)(B). The State argues that it was so obvious that the knife brandished by Alvarado would qualify as a deadly weapon that all of the parties assumed it was a deadly weapon. According to the State, the deadly weapon issue was unrelated to any contested issue or defensive theory and reasonably conceded by the defense.

This case bears some similarity to Blanson v. State, an aggravated robbery prosecution in which the appellate court held that egregious harm resulted from the erroneous instruction that a pocketknife is a deadly weapon per se. Blanson v. State, 107 S.W.3d 103, 105 (Tex.App.-Texarkana 2003, no pet.). In Blanson, the defendant held a closed pocketknife and the parties disputed that it constituted a deadly weapon because of the manner or intended manner of its use. Id. at 105-06. The jury charge resulted in egregious harm because the jury was authorized to convict if it found that the accused possessed a knife without requiring proof of the knife’s capability to cause imminent bodily injury or death in the way it was used. Id. at 106. Here, Alvarado moved for a directed verdict based upon the State’s failure to prove that Alvarado used or exhibited a deadly weapon in the course of committing an assault, but the defense never suggested that this particular knife would not be deadly if wielded against a person.

In determining whether the erroneous instruction caused egregious harm to the appellant, the actual degree of harm must be assessed in light of the state of the evidence. Almanza, 686 S.W.2d at 171. Although Alvarado did not concede that he held the knife to the complainant’s head, he stipulated that he possessed the knife that was admitted into evidence. Because the knife was admitted into evidence, the jury could determine whether the knife was capable of inflicting serious bodily injury by examining the object. See Robertson v. State, 163 S.W.3d 730, 734 (Tex.Crim.App.2005). Unlike the closed pocketknife in Blanson, even casual observation of the five-to-six-inch blade on Alvarado’s knife reveals that if wielded during an assault, the knife is capable of causing serious bodily injury or death. See Blanson, 107 S.W.3d at 106. Because “objects used to threaten deadly force are in fact deadly weapons!,]” a knife is a deadly weapon if its possession facilitates the commission of the underlying assaultive offense. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000). “[A]n object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury.” Id. at 503.

Although Alvarado argued to the jury that his purpose in wielding the knife may have been to get the door open, there is no evidence that he discarded the knife at the door. The State proffered eyewitness testimony that Alvarado held the knife to the complainant’s head and threatened to kill her. Although the complainant disputed the eyewitness’s account of the incident and testified that Alvarado did not hold the knife to her head, the complainant also testified that Alvarado came at her with the knife. Together with the police officer’s testimony that the knife was capable of causing death, the evidence supports a finding that Alvarado used the knife in a manner that made the knife capable of causing death or serious bodily injury. See Tex. Pen.Code Ann. § 1.07(a)(17)(B).

Alvarado argues that egregious harm resulted from the erroneous charge because the jury did not decide whether this particular knife was used as a deadly weapon under the circumstances of this particular case. The case relied upon by the appellant, Sanchez v. State, is distinguishable. See Sanchez v. State, 209 S.W.3d 117 (Tex.Crim.App.2006). In Sanchez, an official oppression prosecution based upon sexual harassment, the jury charge abstractly defined “sexual harassment” but “did not clearly inform the jury that it must find that, not only the appellant’s ‘sexual advances,’ but also his ‘requests for sexual favors, or other verbal or physical conduct of a sexual nature,’ must be ‘unwelcome’ in order to support a guilty verdict.” Id. at 122. In addition, the charge failed to “inform the jury that it must find that the appellant was aware that any of his sexual conduct was unwelcome” before finding the defendant guilty. Id. The Court of Criminal Appeals held that the jury charge failed to require the jury to find that the accused committed each and every element of sexual harassment before it could convict the accused of official oppression. Id. at 120. The error resulted in egregious harm because the jury was instructed in such a way that it was not required to find every element of the offense to have been proven beyond a reasonable doubt. Id. at 125.

In Alvarado’s case, the application paragraph required the jury to find that Alvarado “used or exhibited a deadly weapon, to-wit: a knife” during the commission of the assault, but the abstract definition included in the charge defined the wrong type of deadly weapon. The jury found Alvarado used or exhibited the knife during the course of intentionally or knowingly threatening imminent bodily injury to the complainant. To be considered a deadly weapon, a knife need not be actually used to inflict an injury if its possession facilitates the assault. See McCain, 22 S.W.3d at 503. Given the physical properties of the knife at issue in this case, the knife clearly would be capable of causing serious bodily injury if it were used as an instrument of force against another person. The jury did find that Alvarado committed an assault with the knife. By virtue of the assaultive manner of the use of the weapon, that finding necessarily included a finding that the knife was capable of causing death or serious bodily injury. Therefore, the erroneous jury charge did not deprive Alvarado of the valuable right to have a jury finding on each element of the offense. See Almanza, 686 S.W.2d at 172.

Alvarado contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, Alvarado presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory. See id.

We hold the erroneous jury charge did not result in egregious harm. Accordingly, we overrule the sole issue raised on appeal and affirm the judgment.

AFFIRMED.


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    L.H. MEEKER and Brian Rutledge, Appellants, v. TARRANT COUNTY COLLEGE DISTRICT, Appellee.
    No. 2-09-096-CV.
    Court of Appeals of Texas, Fort Worth.
    May 27, 2010.
    Rehearing Overruled July 22, 2010.
    Rehearing and Rehearing En Banc Overruled July 22, 2010.

      Harold D. Hammett, Fort Worth, TX, for Appellants.
    Bob Mhoon, Arlington, TX, pro se, for Interested Party.
    Joseph R. Larsen, Sedgwick, Detert, Moran & Arnold, LLP, Houston, TX, for The Freedom of Information Foundation of Texas.
    Angela H. Robinson, C. Davis Chapman, Law Snakard & Gambill, PC, Fort Worth, TX, for Appellee.
    PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellants L.H. Meeker and Brian Rutledge (collectively, Meeker) appeal the trial court’s summary judgment in favor of Appellee Tarrant County College District (TCCD). Meeker contends in two issues that the trial court erred by denying Meeker’s motion for summary judgment, granting TCCD’s motion for summary judgment, and failing to declare that three of TCCD’s meeting-agenda notices violated the Texas Open Meetings Act (TOMA). Because we hold that events subsequent to the trial court’s summary judgment mooted Meeker’s appeal, we set aside the trial court’s judgment and dismiss this case for lack of subject-matter jurisdiction.

II. Factual and Procedural Background

TCCD hired Dr. Leonardo de la Garza as chancellor in 1997. In subsequent years, TCCD periodically extended the terms of de la Garza’s contract, increased his salary, or both. For example, TCCD extended de la Garza’s contract in 2004 “for a three (3) year period to June 30, 2007,” and set his salary at $169,600 per year. By 2007, TCCD had extended de la Garza’s contract through June 30, 2008.

In 2007, TCCD gave public notice of a meeting to occur on June 20, 2007. Relevant to this appeal, the meeting-agenda notice stated: “Closed Meeting: Deliberations Regarding ... Personnel Matters, Section 551.074, Texas Government Code.” At the June 20, 2007 meeting, TCCD increased de la Garza’s salary to $295,000 for the period from September 1, 2006, through August 31, 2007. On July 30, 2007, TCCD entered into an “Amendment to Chancellor’s Contract” (the 2007 Contract) that memorialized de la Garza’s increased compensation.

In 2008, TCCD gave public notice of meetings to occur on June 18 and June 25, 2008. Relevant to this appeal, the June 18, 2008 meeting-agenda notice stated: “Closed Meeting: ... Personnel Matters, Section 551.074, Texas Government Code. The personnel discussion may address aspects of the routine annual evaluation of the chancellor.” The June 25, 2008 meeting-agenda notice stated: “Closed Meeting: ... Deliberations regarding personnel matters, Section 551.074 ... Texas Government Code. The personnel discussion may address aspects of the routine annual evaluation of the chancellor.” After the June 18 and June 25, 2008 meetings, TCCD offered de la Garza “a three-year contract with an annual review at a total annual compensation of $325,000.” By contract dated July 11, 2008 (the 2008 Contract), TCCD formally extended de la Garza’s appointment “for a three (3) year period ending June 30, 2011,” with an annual salary of $325,000.

On September 24, 2008, Meeker filed a lawsuit against TCCD and de la Garza seeking judicial declarations that the meeting-agenda notices for the June 18 and June 25, 2008 meetings violated TOMA and that the 2008 Contract is void. Meeker also sought injunctive relief against TCCD and de la Garza that would have prohibited TCCD from “paying any salary or other compensation” to de la Garza or recognizing him as chancellor. Meeker amended his petition on November 21, 2008, and added requests for judicial declarations that the meeting-agenda notice for the June 20, 2007 meeting violated TOMA and that the 2007 Contract is void. The trial court conducted a hearing on Meeker’s request for a temporary injunction on November 25, 2008, and denied injunctive relief by order dated December 11, 2008.

On December 30, 2008, TCCD filed a traditional and no-evidence motion for summary judgment “as to all the relief sought” by Meeker. Meeker then filed his own motion for summary judgment on February 6, 2009, asking that TCCD’s motion for summary judgment be denied and seeking judgment on all of his claims against TCCD. The trial court held a hearing on the cross-motions for summary judgment on February 27, 2009, and on March 12, 2009, denied Meeker’s motion for summary judgment “in all respects,” granted TCCD’s motion for summary judgment “in all respects,” and ordered that Meeker pay TCCD “its reasonable attorneys fees and expenses incurred in this action in the amount of $46,240.00.”

Meeker filed his notice of appeal on March 27, 2009. Thereafter, TCCD and de la Garza entered into a “First Amendment to Chancellor’s Contract” (the 2009 Contract) on June 30, 2009, which facilitated de la Garza’s departure as TCCD’s chancellor. The 2009 Contract provides that it “is the final agreement between [TCCD] and de la Garza[] and [that] it controls the contractual relationship between the parties hereto after the date of this [2009 Contract].” The 2009 Contract also provides that it supersedes all prior agreements and contracts between the parties, including the 2008 Contract, and that TCCD would pay de la Garza $700,000 for a release of claims against TCCD.

III. The 2009 Contract Rendered Meeker’s Appeal Moot

The same day it filed its brief in this court, TCCD filed a motion for partial dismissal of this appeal contending Meeker’s request for injunctive relief is moot because de la Garza is no longer the TCCD chancellor. Meeker filed a response to TCCD’s motion, arguing that his claims for injunctive relief are not moot because the “adequacy of the public notices” and his claim for attorney’s fees remain live issues and that exceptions to the mootness doctrine apply.

“[B]ecause the disposition of this case turns on a jurisdictional issue — mootness — this court is duty-bound to examine jurisdictional grounds, and may do so sua sponte.” Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 330 (Tex.App.-Houston [14th Dist.] 2009, pet. denied); see also M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004) (stating that a reviewing court is obligated to review sua sponte issues affecting jurisdiction). Thus, although TCCD’s motion only seeks dismissal of Meeker’s requests for injunctive relief, we are obligated to determine whether the 2009 Contract rendered all or any part of Meeker’s appeal moot.

A. Standard of Review

Whether we have subject-matter jurisdiction is a legal question that we review de novo. See Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex.App.-Dallas 2009, no pet.); City of Shoreacres v. Tex. Comm’n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex.App.-Austin 2005, no pet.). The mootness doctrine implicates subject-matter jurisdiction. City of Shoreacres, 166 S.W.3d at 830; Pantera Energy Co. v. R.R. Comm’n of Tex., 150 S.W.3d 466, 471 (Tex.App.-Austin 2004, no pet.). Because “[mjootness is a matter that ordinarily arises after the rendition of the judgment or order appealed from,” we can only determine whether Meeker’s appeal is moot by considering evidence of matters occurring subsequent to the trial court’s summary judgment order. See Jackson v. Lubben, 502 S.W.2d 860, 862 (Tex.Civ.App.-Dallas 1973, writ dism’d). And for that purpose alone, we will consider the evidence attached to TCCD’s motion for partial dismissal. See id.; Travis County v. Matthews, 221 S.W.2d 347, 348 (Tex.Civ.App.-Austin 1949, no writ); see also Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (per curiam) (stating “[ajffidavits outside the record cannot be considered by the Court of Civil Appeals for any purpose other than determining its own jurisdiction”).

B. Applicable Law

1. Mootness Doctrine

The mootness doctrine prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by article II, section 1 of the Texas constitution. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000). A controversy must exist between the parties at every stage of the legal proceeding, including the appeal. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex.2002); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648, 651 (Tex.App.-Fort Worth 2004, pet. denied). An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy. See In re H & R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex.App.Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex.App.-Dallas 2007, no pet.). When an appeal is moot, we must set aside the judgment and dismiss the cause. McClure, 147 S.W.3d at 651; City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex.App.-Fort Worth 2001, no pet.).

2. Acts in Violation of Texas Open Meetings Act are Voidable

TOMA expressly provides that “[a]n action by a governmental body in violation of this chapter is voidable.” Tex. Gov’t Code Ann. § 551.141 (Vernon 2004). It does not state that governmental acts in violation of TOMA are void or void ab initio. Id. The distinction is important because the governmental act would be a nullity if it were void or void ab initio. Swain v. Wiley College, 74 S.W.3d 143, 146 (Tex.App.-Texarkana 2002, no pet.). But because the governmental act is merely voidable, it is valid until adjudicated and declared void. Id.

C.Analysis

Meeker seeks three types of relief in this case: injunctive relief, declaratory relief, and attorney’s fees. A review of Meeker’s requested relief will aid in determining whether his appeal is moot. Compare Love Terminal Partners, L.P. v. City of Dallas, 256 S.W.3d 898, 896 (Tex.App.-Dallas 2008, no pet.) (holding request for declarations concerning TOMA violations moot), with Ramos, 235 S.W.3d at 469 (holding request for declarations concerning TOMA violations not moot because declaratory relief coupled with potential remedial relief). We will therefore review each of Meeker’s requests for relief in turn.

1. Request for Injunctive Relief

Meeker states in his brief that he seeks injunctive relief from this court (1) prohibiting TCCD “from paying any salary or other compensation” to de la Garza “until if and when the Trustees employ him following a legally adequate public notice”; (2) prohibiting TCCD from “recognizing in any way Leonardo de la Garza as Chancellor, pending [TCCDj’s conducting a properly noticed meeting” with specified items to be included in the notice; (3) requiring TCCD to timely post its agenda with full notice of proposed action to employ a chancellor; and (4) posting notice containing all applicants for chancellor at least twenty-one days before the meeting.

Although Meeker does seek permanent injunctive relief relating to future meetings concerning TCCD’s employment of a chancellor, Meeker’s brief makes clear that his requests for a permanent injunction relate only to TCCD’s employment of de la Garza, not successor chancellors. For example, Meeker states in his Appellant’s Brief that: “If the Trustees decide to hold another meeting to consider awarding de la Garza another contract, or ratifying the existing one, the Court should require the public notice of the meeting to be worded clearly so the public will understand that the Board proposes to act on a three-year contract for chancellor at a salary increase.” Meeker also argues that “the Court should void de la Garza’s employment as Chancellor because the TCCD did not publish de la Garza’s name as a candidate for the position of Chancellor at least 21 days before any Board action on that matter.” Thus, all of Meeker’s requests for injunctive relief relate to de la Garza’s service as chancellor. And because de la Garza is no longer the chancellor, all of Meeker’s requests for injunctive relief are moot. See, e.g., Day v. First City Nat’l Bank of Houston, 654 S.W.2d 794, 795 (Tex.App.-Houston [14th Dist.] 1983, no writ) (stating that a case is moot when the actions sought to be enjoined have been fully performed). We therefore grant TCCD’s motion for partial dismissal and hold that the 2009 Contract, which ended de la Garza’s service as chancellor, mooted all of Meeker’s requests for injunc-tive relief. But because we are duty-bound to consider whether we have jurisdiction over the remainder of Meeker’s appeal, we also consider Meeker’s other requests for relief to determine if the remainder of his appeal is moot.

2. Requests for Declaratory Relief

Meeker seeks judicial declarations that the June 2007 and June 2008 meeting-agenda notices violated TOMA and that the 2007 and 2008 Contracts are void. He argues that the adequacy of the 2007 and 2008 meeting-agenda notices and his request for attorneys’ fees remain live controversies, even after the 2009 Contract, because we could declare the meeting-agenda notices inadequate under TOMA and award him attorneys’ fees. Because the legality of the 2009 Contract and the sufficiency of the meeting-agenda notice that preceded the 2009 Contract are not before us, we disagree that any live controversy remains concerning the 2007 and 2008 meeting-agenda notices and contracts.

Actions in violation of TOMA are voidable, not void, and remain valid until adjudicated and declared void. See Love Terminal Partners, 256 S.W.3d at 897. In this case, the 2007 Contract had not been adjudicated void before the 2008 Contract superseded it, and the 2008 Contract had not been adjudicated void before the 2009 Contract replaced it. Thus, declaring that the 2007 and 2008 meeting-agenda notices violated TOMA cannot have any practical legal effect on a currently-existing controversy because the declarations would only void contracts that have previously been superseded. See id. (stating an issue is moot when “one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy”); see also Tex. Gov’t Code Ann. § 551.141 (stating governmental acts in violation of TOMA are voidable).

Contending that his appeal is not moot, Meeker cites Ramos. See 235 S.W.3d at 469. But that case is distinguishable. There, Ramos sued the City of Farmer’s Branch for judicial declarations that the City violated TOMA by conducting closed meetings relating to a controversial city ordinance. Id. In addition to declaratory relief, Ramos sought disclosure “to the public [of] all transcripts, minutes, recordings, and other evidence of closed meetings as well as requiring the City] to comply with TOMA in the future.” Id. After Ramos filed suit, the City repealed the ordinance at issue, sought dismissal of Ramos’s lawsuit, and argued the case was moot because the ordinance at issue had been repealed. Id. at 465, 469. But the court held the case was not moot because of potential remedial relief available if Ramos proved a violation of TOMA. Id. Specifically, if Ramos succeeded, the trial court could have ordered the production of the documents and information from the closed meetings. Id.; see also City of Richardson v. Gordon, 05-09-00532-CV (Tex.App.-Dallas 2010, no pet. h.) (following Ramos and holding City’s charter amendment did not moot lawsuit because Gordon sought production of “agendas, tapes, and records” from allegedly illegal closed meetings in addition to his request for declaratory relief concerning past alleged violations of TOMA). Here, Meeker seeks to void the 2007 Contract and the 2008 Contract for allegedly insufficient notices, but he does not seek production of documents or other information relating to the 2007 and 2008 meetings. Cf. Ramos, 235 S.W.3d at 469; Gordon, at *3. In fact, Meeker seeks only to void the 2007 and 2008 Contracts, both of which were superseded by subsequent contracts. Thus, Meeker does not seek a remedy relating to the 2007 and 2008 meeting-agenda notices that was not mooted by the 2009 Contract. And because the legality of the 2009 Contract or the meeting-agenda notice that preceded the 2009 Contract is not before us, Meeker’s requests for judicial declarations are moot.

3. Exceptions to Mootness Doctrine

Meeker also argues that his appeal is not moot because the capable-of-repetition-yet-evading-review and public-interest exceptions to the mootness doctrine apply to his case. We disagree. A common element of both the public-interest exception and the capable-of-repetition-yet-evading-review exception is that the complained-of action be capable of repetítion yet not effectively reviewable. See generally Fed. Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994). But an issue does not evade appellate review if appellate courts have addressed the issue on the merits. See id.; Ngo v. Ngo, 133 S.W.3d 688, 692 (Tex.App.-Corpus Christi 2003, no pet.). Here, the adequacy of the public meeting-agenda notices is the substantive issue, but Texas courts have addressed the adequacy of public meeting-agenda notices on numerous occasions. See, e.g., Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex.1986); Salazar v. Gallardo, 57 S.W.3d 629, 633-34 (Tex.App.-Corpus Christi 2001, no pet.); Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex.App.-Waco 1997, writ denied); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 180-82 (Tex.App.-Corpus Christi 1990, writ denied). Thus, the capable-of-repetition-yet-evading-review and public-interest exceptions do not apply in this case.

4. Attorney’s Fees

Meeker’s claim for attorney’s fees is also moot. Meeker’s motion for summary judgment and live pleading sought attorney’s fees only under government code section 551.142(b). But section 551.142(b) authorizes an award of litigation costs and attorney’s fees only for substantially prevailing in a suit for mandamus or injunction under section 551.142(a). See Tex. Gov’t Code Ann. § 551.142(b) (Vernon 2004). Meeker does not seek mandamus relief, his requests for injunctive relief are moot, and section 551.142(b) does not authorize attorney’s fees for succeeding on a claim for declaratory relief. See id. Thus, even if we were to consider the merits of Meeker’s request for declaratory relief and declare that the 2007 and 2008 meeting-agenda notices violated TOMA or that the 2007 and 2008 Contracts are void, Meeker cannot be awarded attorney’s fees for succeeding on a claim for declaratory relief because his pleadings do not request attorney’s fees under Chapter 37 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008) (authorizing an “award [of] costs and reasonable and necessary attorney’s fees as are equitable and just” in any proceeding under Chapter 37).

As a result, any ruling by this court concerning the merits of Meeker’s challenge to the 2007 and 2008 meeting-agenda notices or the resulting 2007 and 2008 Contracts would not have any practical legal effect on any currently-existing controversy. See In re M.R.J.M., 280 S.W.3d 494, 499 (Tex.App.-Fort Worth 2009, no pet.) (op. on reh’g) (stating that “[a]n issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy”). We therefore hold that Meeker’s appeal is moot.

IV. Conclusion

Having held that Meeker’s appeal is moot, we vacate and set aside the trial court’s judgment, including the award of attorney’s fees to TCCD, and dismiss this case for lack of subject-matter jurisdiction. See Tex. Foundries, Inc. v. Int’l Moulders & Foundry Workers’ Union, 151 Tex. 239, 241, 248 S.W.2d 460, 461 (1952) (stating that “when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed” and that merely dismissing the appeal “would have the effect of affirming the judgment of the lower court without considering any assignments of error thereto”).

      . See Tex. Gov’t Code Ann. § 551.041 (Vernon 2004) (requiring governmental bodies to "give written notice of the date, hour, place, and subject of each meeting held by the governmental body”).

      . Meeker subsequently non-suited his claims against de la Garza.

      . To the extent Meeker arguably seeks relief concerning future meetings not relating to de la Garza, Meeker seeks an advisory opinion "that lies outside [our] judicial power." See Cornyn v. City of Garland, 994 S.W.2d 258, 267 (Tex.App.-Austin 1999, no pet.).

      . In FDIC, the supreme court stated,
      This Court has not previously decided the viability of the public interest exception, and we find it unnecessary to reach that issue here. As articulated by the court of appeals, the public interest exception permits judicial review of questions of considerable public importance if the nature of the action makes it capable of repetition and yet prevents effective judicial review. Thus, a common element of both the public interest exception and the capable of repetition exception is that the complained of action be capable of repetition yet not effectively reviewable.

        Id. The supreme court has not subsequently recognized the public-interest exception to the mootness doctrine. See, e.g., In re Guerra, 235 S.W.3d 392, 432 n. 198 (Tex.App.-Corpus Christi 2007, orig. proceeding) (acknowledging that the supreme court had not yet recognized the public interest exception but applying the exception to hold that a case was not moot); Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 400 (Tex.App.Houston [1st Dist.] 2006, no pet.) (declining to recognize the public-interest exception until the supreme court resolves the split in authority among the intermediate appellate courts on the viability of the legal theory). Although we conclude the public-interest exception is inapplicable here, we express no opinion concerning the viability of that legal theory.


author: MICHAEL MASSENGALE, Justice.

text:
    HARRIS COUNTY APPRAISAL DISTRICT and Harris County Appraisal Review Board, Appellants, v. James M. WILKINSON and Stephanie S. Wilkinson, Appellees.
    No. 01-08-00547-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 3, 2010.
    Rehearing Overruled Aug. 5, 2010.

      James D. Robinson, Olson & Olson, L.L.P., Houston, TX, for Appellants.
    Rob L. Wiley, Stewart & Wiley LLP, Spring, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices BLAND and MASSENGALE.
   OPINION

MICHAEL MASSENGALE, Justice.

This is a suit for judicial review of the denial of a homestead exemption on a mobile home. See Tex. Tax Code Ann. § 42.21 (Vernon 2008). After a bench trial, the district court found that appellees James M. Wilkinson and Stephanie S. Wilkinson were entitled to a homestead exemption and ordered the Harris County Appraisal District and the Harris County Appraisal Review Board to grant the exemption.

The District and Board bring two issues on appeal. They contend that the trial court erred in its conclusion that the mobile home was the Wilkinsons’ principal residence. If the district court’s ruling is sustained in that regard, they further argue that the homestead exemption is unconstitutional as applied.

We reverse the judgment of the trial court. We conclude that only an owner’s main or primary residence can be his “principal residence” eligible for the residential-homestead exemption under Tax Code section 11.13(j).

Background

The underlying facts of this dispute are essentially undisputed. In 1995 the Wil-kinsons purchased property in Montgomery County, and in 1998 they moved into a house on that property. From 1999 to 2003 they had a residential-homestead exemption on that home.

The Wilkinsons also own a storage facility in Spring. In 1998, Mr. Wilkinson purchased a mobile home and placed it at the storage facility. The mobile home had residential electric service, and the Wilkin-sons’ son lived in it from time to time until 2003.

In 2002, Ms. Wilkinson walked into a burglary in progress at the Montgomery County home, and she became afraid to stay at that house. In December 2003 the Wilkinsons bought a 4,500-square-foot house in Tomball, but it was not ready for occupancy. Meanwhile, also in December 2003, the Wilkinsons moved into the mobile home, which had approximately 1,000 square feet of living space.

The Wilkinsons lived in the mobile home for approximately two months. Mr. Wilkinson testified with respect to the mobile home: “I would live there, eat there, sleep there. I had Mends over, I had parties there. It was my home.” The Wilkinsons continued to obtain residential electric service at the mobile home. Mr. Wilkinson’s driver’s license reflected the address of the storage facility. A bank statement was also received at that address. The Wilkin-sons hosted a New Year’s Eve party at the mobile home. During this time period, they planned to move into the Tomball house when it was ready.

At the end of January 2004, the Wilkin-sons moved out of the mobile home and into the Tomball house. The following March, they applied for a residential-homestead exemption on the mobile-home property. The District canceled the exemption on the basis that the Wilkinsons “did not occupy the property as [their] primary residence on January 1 of [2004].”

Based on the foregoing evidence, along with other evidence presented at trial, the trial court entered findings of fact, which we quote below:

• Plaintiffs purchased the [Spring] Property and owned it as of January 1, 2004.
• Plaintiffs established that:
(1) they moved to the [Spring] Property in December 2003;
(2) they hosted social events at the [Spring] Property during December 2003 and January 2004;
(3) they utilized residential electric service at the [Spring] Property during December 2003 and January 2004;
(4) James Wilkinson’s Texas Driver License ... listed the [Spring] Property as his residence address during December 2003 and January 2004;
(5) they received bank statements directed to the [Spring] Property as their residence during December 2003 and January 2004;
(6)they moved from the [Spring] Property in late January 2004 and began occupying [the Tomball house].
• Plaintiffs established that:
(1) they claimed a residence homestead exemption for [the Montgomery County house] for the years 1999-2003;
(2) they dropped their residence homestead exemption for [the Montgomery County house] effective with the tax year beginning January 2004;
(3) they did not receive the benefit of a residence homestead exemption for 2004 in connection with [the Montgomery County house].
• The Plaintiffs had a residence homestead exemption in Montgomery County from 1999-2003. The Montgomery County Appraisal District did not remove that exemption from its records until 2006.
• The Plaintiffs sold their home in Montgomery County in March of 2004.
• The property located at [the Spring property] consisted of a storage facility and a mobile home.
• The Plaintiffs purchased their home in Harris County at ... Tomball, Texas ... in December 2003.

The district court also made three conclusions of law: (1) the Wilkinsons occupied the mobile home as their principal residence on January 1, 2004; (2) the Wil-kinsons claimed no residential homestead for any property other than the mobile home for 2004; and (3) Texas law entitled the Wilkinsons to a residential-homestead exemption for the mobile home in 2004. Accordingly, the trial court ordered the District and Board to grant the Wilkinsons a residence homestead exemption for their mobile home for 2004. The District and Board appeal from this judgment.

Analysis

In their first issue, the District and Board claim the Wilkinsons were not entitled to a residential-homestead exemption under Tax Code section 11.13(j), which provides, in part:

For purposes of this section:
(1) “Residence homestead” means a structure (including a mobile home) or a separately secured and occupied portion of a structure (together with the land, not to exceed 20 acres, and improvements used in the residential occupancy of the structure, if the structure and the land and improvements have identical ownership) that:
(A) is owned by one or more individuals, either directly or through a beneficial interest in a qualifying trust;
(B) is designed or adapted for human residence;
(C) is used as a residence; and
(D) is occupied as his principal residence by an owner or, for property owned through a beneficial interest in a qualifying trust, by a trustor of the trust who qualifies for the exemption.

Tex. Tax Code Ann. § 11.13(j)(l) (Vernon 2008). The District and Board specifically focus on section 11.13(j)(l)(D), which requires the owner seeking the exemption to occupy the property as his principal residence. They contend that the evidence at trial was insufficient to support the trial court’s conclusion that the Wilkinsons occupied the mobile home as their principal residence on January 1, 2004.

1. Standard of review

In an appeal from a bench trial, a trial court’s conclusions of law are reviewed de novo as legal questions. See, e.g., Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 529 (Tex.App.-Houston [1st Dist.] 2007, no pet.). This standard of review applies to a trial court’s interpretation of a statute. E.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). We give no deference to the trial court’s resolution of a question of law. E.g., State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). Instead, we review the trial court’s fact findings and exercise our own judgment to draw legal conclusions. E.g., Potcinske, 245 S.W.3d at 529; Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

2. Statutory analysis

To qualify for a homestead exemption, the Wilkinsons had to demonstrate that the mobile home was occupied as their “principal residence.” Tex. Tax Code Ann. § 11.13(jXl)(D) (Vernon 2008). The Tax Code does not define “principal residence.”

When construing a statute our primary objective is to determine and give effect to the intent of the Legislature. E.g., City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex.2010); Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009). That intent is discerned from the actual language used by the Legislature. E.g., Hernandez, 289 S.W.3d at 318. When the legislature has not defined a term or phrase, we give it its ordinary or common meaning. E.g., City of Rockwall, 246 S.W.3d at 625; see also Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005).

In the particular context of this provision of the Tax Code, we note also that “exemptions from taxation are not favored by the law and will not be favorably construed.” N. Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex.1991); see also River Oaks Garden Club v. City of Houston, 370 S.W.2d 851, 854 (Tex.1963). “Statutory exemptions from taxation are subject to strict construction because they undermine equality and uniformity by placing a greater burden on some taxpaying businesses and individuals rather than placing the burden on all taxpayers equally.” N. Alamo Water Supply, 804 S.W.2d at 899 (citing Bullock v. Nat’l Bancshares Corp., 584 S.W.2d 268, 271-72 (Tex.1979), and Hilltop Village, Inc. v. Kerrville Indep. Sch. Dist., 426 S.W.2d 943, 948 (Tex.1968)).

The question in this case is not whether the Wilkinsons’ mobile home was a residence, but whether it was their principal one. The common meaning of “principal” is “most important, consequential, or influential: relegating comparable matters, items, or individuals to secondary rank.” Webster’s Third International Dictionary 1802 (Philip B. Gove ed., 1961); see also Black’s Law Dictionary 1312 (9th ed. 2009) (defining “principal” as “[c]hief; primary; most important”). The ordinary or common meaning of “principal residence” in the context of the definition of “residential homestead” under Tax Code section 11.13(j) is the owner’s main or primary residence. Accord Op. Tex. Att’y Gen. No. JC-0415 (2001) (construing “principal residence” as used in § 11.13(j)(l)(D) as “the owner’s primary or chief residence that the owner actually occupies on a regular basis”).

3. Application

Applying this statutory standard, the facts found by the district court do not support a legal conclusion that the mobile home ever was the Wilkinsons’ main or primary residence. Indeed, they support the opposite conclusion. When the Wilkin-sons moved into the mobile home in December 2003, they had just purchased a 4,500-square-foot home in Tomball. They were waiting for work to be completed on that house before they moved into it. These facts demonstrate that the Wilkin-sons moved into the mobile home intending for it to be a temporary residence. Accordingly, the evidence presented to and the facts found by the district court do not support the legal conclusion that the mobile home ever was the Wilkinson’s “principal residence” in that term’s statutory sense, meaning that home which the Wil-kinsons considered to be their main or primary residence. Our conclusion in this regard is bolstered by the fact that the Tax Code anticipates circumstances in which the owner of a residence homestead temporarily lives in another residence, and provides that a home will not necessarily lose its character as a residence homestead for that reason. See Tex. Tax Code Ann. § 11.13(0 (Vernon 2008). A transient stay in a mobile home pending a move from one primary residence to another does not transform the temporary residence into a “principal residence.”

The Wilkinsons argue on appeal, and the district court concluded as a matter of law, that they were entitled to a residence-homestead exemption because their ownership of the mobile home on January 1, 2004 qualified for the exemption under the criteria ordinarily applied by the District and Board to determine the application of the exemption. Those criteria included occupation of the property as a principal residence on January 1 of the tax year involved. As we have explained above, the Wilkinsons failed to establish that the mobile home was their principal residence, and accordingly the District and Board did not depart from their own criteria for the exemption when they denied the Wilkin-sons’ request.

We sustain issue 1. Because of our resolution of this issue, we need not reach the as-applied constitutional challenge to Tax Code section 11.26.

Conclusion

We reverse the trial court’s judgment and render judgment in favor of the Harris County Appraisal District and the Harris County Appraisal Review Board.


author: LAURA CARTER HIGLEY, Justice.

text:
    Edwin Arnoldo CAMPOS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00616-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 3, 2010.
    Rehearing Overruled July 27, 2010.

      Sarah V. Wood, Richmond, TX, for Appellant.
    April Adams Silva, Assistant District Attorney, Kenneth Magidson, Harris County District Attorney, Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Edwin Arnoldo Campos, was charged by indictment with the first-degree-felony offense of theft of property valued, in the aggregate, at greater than $200,000, to which appellant pleaded not guilty. See Tex. Penal Code Ann. § 31.03(a), (e)(7) (Vernon Supp. 2009). A jury found appellant guilty and assessed his punishment at 6 years’ confinement and a $10,000 fine.

In two points of error, appellant (1) challenges the legal and factual sufficiency of the evidence and (2) contends that the trial court erred by admitting certain evidence.

We affirm.

Background

According to the record, the 3M company is a $16S-billion-dollar-corporation with 35,000 employees in the United States. The company has a small warehouse distribution center in Houston which is staffed by one permanent 3M employee and by four temporary workers provided by a staffing agency, Volt Services.

At all times relevant to this case, appellant was an employee of Volt. From 2004 to 2006, Volt assigned appellant to work in the 3M warehouse. Appellant’s duties included shipping, receiving, and inventorying window-tinting materials. While working in the 3M warehouse, appellant began operating an automotive window-tinting service.

Rick Knight, a 3M sales representative for the territory in which the Houston warehouse was located and the sole 3M employee at the Houston warehouse, testified that he worked with appellant at the warehouse and that appellant had expressed an interest in learning how to perform automotive window tinting. Knight testified that he had allowed appellant to practice with some used sample rolls. Eventually, appellant started a business called “3rd Coast Tinters,” and appellant was allowed to purchase materials from the warehouse for use in his business. Over time, inventory shortages began to occur.

Rhonda Holmes, a Volt employee assigned to work as a customer service representative at the 3M Houston warehouse, testified that her responsibilities included performing monthly inventories and comparing actual counts against the computer. Holmes testified that she began to notice discrepancies. Holmes testified that she used to see appellant at the warehouse on weekends tinting cars and that “we all knew” that appellant was allowed to purchase tinting materials.

Knight notified 3M’s corporate headquarters in St. Paul, Minnesota of the inventory shortages. Knight testified that 3M representatives came down and performed an inventory of the Houston warehouse in February 2006. An inventory shortage was realized, but it was thought to be the result of computer entry errors. After the inventory was reconciled, business continued as usual. In August 2006, however, another inventory was performed, which again revealed a substantial shortage — over 400 rolls of automotive tinting materials had disappeared. Knight explained that one roll of material tints the windows of approximately 10 cars.

In October 2006, 3M in St. Paul hired a private investigator, Jimmy Garcia, to investigate the inventory shortages. Garcia investigated appellant’s tinting business. Garcia found 3rd Coast Tinters on the internet, and he called to set up an appointment to bring in a vehicle for window tinting service. Garcia testified that appellant answered the telephone and made the appointment. Appellant had Garcia meet him at the 3M warehouse. He then told Garcia to drive around back and into the warehouse. Appellant and Garcia agreed on a price of $170. Garcia testified that he saw appellant remove a box of tinting material from amongst several other boxes in one of the storage bins in the warehouse. The box was new and had not been opened. Appellant said that he was a manager at 3M and that he was granted substantial liberties. A person named Raul installed the tint. Upon completion of the work, Garcia paid appellant in cash, and appellant signed a 3M'warranty card as a receipt. Garcia asked appellant to give him the box that the tinting materials had come in so that he could store some old battery cables. Appellant complied. The box was admitted into evidence at trial. Garcia reported his experience to Rick Ostrom, a 3M security director in St. Paul.

On November 20, 2006, 3M sent Ostrom, accompanied by Kim Volner, an audit manager based in 3M’s St. Paul offices, to the Houston warehouse to investigate the shortages. Volner testified at trial that she was responsible for conducting all of 3M’s internal investigations and that 3M had authorized her to speak on behalf of the corporation in this case.

Volner and Ostrom interviewed the warehouse personnel, including appellant. Volner testified that, after some discussion, appellant admitted to her that he had taken tinting materials from the warehouse without authorization and that he had sold the materials for cash. In addition, appellant told Volner that he had brought customers into the warehouse on weekends and had provided automotive window tinting in exchange for cash, utilizing materials that he took from the 3M warehouse. Volner testified that appellant did not have authorization to use, to remove, or to sell 3M’s non-sample materials. Volner said that appellant was “very apologetic,” that he “used the word ‘stole’ several times,” and that he promised to “pay us back.”

Appellant also gave a written statement to Volner, which was admitted at trial without objection and states as follows:

I Edwin A. Campos hereby make the following statement to Richard L. Os-trom, 3M Corporate] Security, and Kim Volner, 3M Corporate Audit[or.] The following statement is voluntary, no promises or threats have been made to make this statement.
I started 3rd Coast Tinters in 2004 and purchased some film, then I would take a roll and sell it to people. I would also install it here at the 3M facility. I solely acted alone and had no partners. I would sell the film for cash and when I installed it here I would pay the tinter cash with no records. I know this was wrong and am willing to pay the consequences. I am deeply sorry and are [sic] willing to pay for it even if it takes me a life long time. I would sell it to Raul and Alfonso. I would sell it to other dealers and meet people at locations for cash. I paid bills with the money and took some trips abro[a]d. As an example I had two people in on Sunday and I had Raul install it this Sunday. I strongly believe I was breaking the law and are [sic] willing to pay for my mistakes.
I have read this statement and signed it because it is true and correct.
I have initialed each paragraph and signed the statement.

After appellant confessed, Volner performed an inventory of the warehouse that same day.

At trial, Volner testified that normal inventory adjustments for the Houston warehouse were less than one percent annually. In 2005, however, the warehouse suffered an inventory loss of 17 percent. In 2006, the losses had risen to 37 percent. Appellant ceased working at the warehouse in November 2006. In 2007, the inventory adjustment was 1.2 percent. An exhibit depicting the annual inventory losses was admitted at trial without objection.

State’s Exhibit 11, showing that the total inventory losses suffered as of August 2006 were $680,824.32, was admitted without objection.

In addition, the State sought to admit Exhibit 12, Volner’s November 20, 2006 inventory showing additional losses of $90,960.99, as a business record. As discussed in more detail below, appellant objected, contending that the inventory had been taken just after his confession. Therefore, he contended, it was prepared in anticipation of litigation and was not subject to the business records exception to the hearsay rule. Appellant also objected to the admission of Exhibit 12 on the ground that it violated his Sixth Amendment right to confront the witnesses against him. A person named “John” was noted on the inventory sheets as having assisted with the inventory count, but Vol-ner could not identify him. At a hearing outside the presence of the jury, Volner testified that the inventory was performed to assess the extent of the losses as of that date and that, although she could not remember “John,” anyone assisting in the inventory that day would have been a trusted 3M employee. Appellant’s objections were overruled, and Exhibit 12 was admitted.

Bryan Vaclavik, chief fraud examiner at the Harris County District Attorney’s Office, testified that appellant’s bank records reflect that, during the period from 2004 to 2006, there were regular payroll deposits from Volt Services and there were unidentified deposits totaling $114,937.38. The list of unidentified deposits was admitted at trial without objection.

Legal and Factual Sufficiency

In his first point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction “because the State failed to prove an essential element of the crime as indicted, that Kim Volner was the owner of the property.” Appellant combines his legal and factual sufficiency discussions. However, we will examine appellant’s claim of legal insufficiency before, and separately from, his claim of factual insufficiency.

A. Standards of Review and Applicable Legal Principles

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007); Parker v. State, 192 S.W.3d 801, 804 (Tex.App.Houston [1st Dist.] 2006, pet. ref'd). We “may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.” Williams, 235 S.W.3d at 750. We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Our duty is to ensure that the evidence presented actually supports a conclusion that the defendant committed the offense. Id.

We begin our factual sufficiency review with the assumption that the evidence is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009). Evidence that is legally sufficient, however, can be factually insufficient if (1) the evidence supporting the conviction is too weak to support the fact finder’s verdict, or (2) considering conflicting evidence, the fact finder’s verdict is “against the great weight and preponderance of the evidence.” Id. We consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Id. We recognize that the factfinder is in the best position to evaluate the credibility of witnesses, and we afford due deference to the factfinder’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006). We may only find the evidence factually insufficient when necessary to “prevent manifest injustice.” Laster, 275 S.W.3d at 518. In such case, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id.

A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). “Appropriate” means (A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another or (B) to acquire, or otherwise exercise control over, property other than real property. Id. § 31.01(4). Appropriation of property is unlawful if, inter alia, it is without the owner’s effective consent. Id. § 31.03(b).

Pursuant to the Penal Code and as applicable herein, a person is an “owner” if he has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Penal Code Ann. § 1.07(a)(35) (Vernon Supp. 2009).

B. Analysis

1. Legal sufficiency

Appellant first contends that the evidence of the element of ownership is legally insufficient because “Kim Volner was not the legal owner of the stolen property.” Appellant does not challenge the evidence supporting any of the other elements of the offense.

It is undisputed that 3M, a corporation, was the actual lawful owner of the property at issue. The indictment alleged that, from 2004 through 2006, appellant appropriated window tinting material “owned by Kim Volner.” Because a corporation cannot itself testify, when allegedly stolen property is owned by a corporation, it is proper and preferable for the indictment to allege that the property was taken from the custody and control of a natural person acting for the corporation. See Freeman v. State, 707 S.W.2d 597, 605 (Tex.Crim.App.1986); Castillo v. State, 469 S.W.2d 572, 573 (Tex.Crim.App.1971); Lewis v. State, 193 S.W.3d 137, 140 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (stating that when a corporation owns property at issue, State may allege ownership in “special owner”); Villani v. State, 116 S.W.3d 297, 306 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Chowdhury v. State, 888 S.W.2d 186, 187 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Proof of ownership may be shown by circumstantial evidence. Villani, 116 S.W.3d at 306. The term “owner” is to be broadly defined to protect all ownership interests from criminal conduct. See Freeman, 707 S.W.2d at 603. Under the Penal Code, an “owner” includes one with (1) title to the property, (2) possession of the property, whether lawful or not, or (3) a greater right to possession of the property than the appellant. See Tex. Penal Code Ann. § 1.07(a)(35)(A). “Possession” means actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39). When there are competing possessory interests, the accused must have exercised “unauthorized” control over the property. Freeman, 707 S.W.2d at 605.

Here, appellant does not dispute that he took tinting materials from the 3M warehouse through the course of his employment with Volt, without paying for them and without authorization, and that he then sold or used the materials to obtain cash that he kept for himself. As such, appellant exercised unauthorized control over the materials. See id. at 606. At the moment in time that appellant began taking the materials, he relinquished whatever possessory interest he had in those materials. See id. At that moment, “any person who established a possessory interest in the [materials] had a greater right to possession of the [materials] than did [appellant].” See id. at 605.

The State presented evidence that, at the time appellant unlawfully appropriated the materials at issue, Volner had a greater right to possession of those materials than did appellant. See Tex. Penal Code Ann. § 1.07(a)(35)(A); Freeman, 707 S.W.2d at 603.

Volner testified that she has been an employee of 3M for 21 years, that she is one of four auditing managers at 3M’s corporate headquarters in St. Paul, Minnesota, and that she is legally authorized to act for 3M. In addition, the record shows that Volner is a shareholder in 3M.

“Proof of a management position alone is insufficient to sustain the ownership allegation absent some showing that the named owner had exercised some degree of care, custody, control, or management over the property allegedly stolen.” Freeman, 707 S.W.2d at 603 (emphasis added). Here, the record further shows that Vol-ner’s function at 3M was to perform internal auditing and investigations. When Knight reported the inventory losses at the Houston warehouse, 3M sent Volner to physically audit the inventory and investigate the losses. Traci Georgiou, a Volt employee assigned to work in the office at the 3M Houston location, testified that the tinting material at the Houston warehouse came from 3M’s facility in St. Paul. From this evidence, the jury could have reasonably concluded that Volner did more than occupy a management position in the company; in addition to her status as a shareholder of 3M, she had management responsibilities that physically extended to 3M’s window-tinting inventories at the Houston warehouse.

Volner and Knight each testified that appellant was never, at any time during his misappropriations, an employee of 3M; rather, he was an employee of Volt, a temporary staffing service. Volner and Knight each testified that appellant was not authorized to remove, use, or sell the materials at issue.

The jury could have reasonably concluded that Volner’s right to possession of 3M’s inventories was greater than that of appellant. See Tex. Penal Code Ann. § 1.07(a)(35)(A); see Johnson v. State, 606 S.W.2d 894, 895-96 (Tex.Crim.App.1980) (holding store employee who was employed to protect property and keep it from being stolen had greater right to possess); Rabb v. State, 681 S.W.2d 152, 154 (Tex.App.-Houston [14th Dist.] 1984, pet. ref 'd) (“A person acting on behalf of a corporation, with managerial authority and responsibility over its goods, is the effective owner ....”) (quoting Cross v. State, 590 S.W.2d 510, 511 (Tex.Crim.App.1979)).

Appellant contends that the evidence that Volner is an owner is legally insuffi-dent because, during his course of thefts, Volner was not physically present at the warehouse and therefore could not have taken possession of, or have exercised physical control over, the materials at issue. In addition, appellant points out that Volner testified that she believed that she did not own or have physical control over the materials at issue at the time of the thefts.

That Volner was not physically present in the Houston warehouse, during the time of appellant’s misappropriations, to physically exercise her right to possession of the materials at issue does not render the evidence legally insufficient. An owner need not be an exclusive owner or in actual possession of the property. Sowders v. State, 693 S.W.2d 448, 451 (Tex.Crim.App.1985). Under the Penal Code, the State need only show a superior right to possess. See Tex. Penal Code Ann. § 1.07(a)(35)(A).

We must give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Williams, 235 S.W.3d at 750. The jury was free to accept or reject any portion of the testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Volner was an owner, as defined in the Penal Code, of the materials at issue, during the time of appellant’s commission of the offense, because Volner’s right to possession of the materials was superior to that of appellant. See Tex. Penal Code Ann. §§ 1.07(a)(35)(A), 31.03. We hold that the evidence is legally sufficient to support the jury’s verdict. See Williams, 235 S.W.3d at 750.

2. Factual sufficiency

Appellant next contends that the evidence that Volner was the owner is factually insufficient. Appellant does not raise any new arguments or challenge the evidence supporting any of the other elements of the offense.

As discussed in the legal sufficiency analysis, the State was required to show that Volner was the owner of the window-tinting materials at the time of appellant’s misappropriations. See Tex. Pen.Code Ann. § 31.03; Castillo, 469 S.W.2d at 573.

The State presented evidence that Vol-ner is a 3M shareholder; that she has been a 3M employee for 21 years; that she is an auditing manager; that she is an authorized agent for 3M; and that her function at 3M is to perform internal auditing and investigations. The record shows that when Knight reported the inventory losses at the Houston warehouse, 3M sent Volner to physically audit the inventory and investigate the losses. From this evidence, the jury could have reasonably concluded that Volner had physical management responsibilities over 3M’s window-tinting inventories at the Houston warehouse. See Freeman, 707 S.W.2d at 603.

Conversely, the record shows that appellant was never, at any time during his appropriation of the materials at issue, an employee of 3M; rather, he was an employee of a temporary staffing service. Further, the record shows that appellant acted without authorization when he removed, used, and sold the materials at issue. The evidence supports that Vol-ner’s right to possession of 3M’s inventories was greater than that of appellant. See Tex. Penal Code Ann. § 1.07(a)(35)(A). Hence, the jury could have reasonably concluded that Volner was the owner of the materials as alleged in the indictment.

As appellant contends, the record shows that, during the time that appellant was taking the window tinting materials, Vol-ner was working at the 3M corporate offices in St. Paul, Minnesota, and that she was not physically working in the Houston warehouse. Further, Volner testified that she believed that she did not own, have possession of, or have control over the materials until such time as, in November 2006, 3M sent her to Houston to audit the inventory and investigate the losses.

These facts do not render the evidence factually insufficient. An owner need not be an exclusive owner or in actual possession of the property. Sowders, 693 S.W.2d at 451. Further, at the moment in time that appellant began taking the materials, he relinquished whatever possessory interest he had in those materials. See Freeman, 707 S.W.2d at 603.

We must give deference to the responsibility of the factfinder to fairly weigh evidence and to draw reasonable inferences from the facts. See Marshall, 210 S.W.3d at 625. We conclude that a rational jury could have concluded that Volner’s right to possession was superior to appellant’s right to possession.

Considering all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is too weak to support the fact finder’s verdict or that the verdict is against the great weight and preponderance of the evidence. See Laster, 275 S.W.3d at 518. We hold that the evidence is factually sufficient to support the jury’s verdict.

Accordingly, we overrule appellant’s first point of error.

November Inventory

In his second point of error, appellant contends that the trial court abused its discretion by “admitting records of the November 2006 inventory” as a business record. Appellant also contends that the trial court’s admission of the inventory violated his Sixth Amendment right to confront witnesses.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). An abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). We will affirm the trial court’s ruling if it lies within the zone of reasonable disagreement. See Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002).

1. Business Records

Texas Rule of Criminal Evidence 803(6), the business records exception to the hearsay rule, permits a party to introduce

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, ... unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Tex.R. Evid. 803(6) (emphasis added). “Rule 803(6) does not require that the person authenticating the record be either the creator of the record or to have personal knowledge of the information recorded therein.” Canseco v. State, 199 S.W.3d 437, 440 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Rather, the testifying witness need only have knowledge of how the record was prepared. Id.

Records prepared in anticipation of litigation are excluded under the trustworthiness criterion of Rule 803(6), as emphasized above. Sessums v. State, 129 S.W.3d 242, 249 (Tex.App.-Texarkana 2004, pet. ref'd); see Palmer v. Hoffman, 318 U.S. 109, 110-15, 63 S.Ct. 477, 479-81, 87 L.Ed. 645 (1943) (holding that statements obtained in anticipation of litigation are not business records).

Here, the court conducted a hearing outside the presence of the jury to determine the admissibility of State’s Exhibit 12. Exhibit 12 is a record of the warehouse inventory that was conducted by Volner on November 20, 2006. The exhibit shows the number of units of each type of material that the computer reflected should be in stock, the physical count of each type of material actually in the warehouse, the number of units missing, and the total value of the missing units.

Volner testified that the inventory records were kept in the ordinary course of business, that it was the regular practice of 3M to keep inventory records, and that the records were made by persons with knowledge of the events, at or near the time of the events. Hence, the State appears to have laid the proper predicate for admission of the inventory as a business record under Rule 803(6). See Tex.R. Evid. 803(6).

Appellant contends, however, that Exhibit 12 does not fall within the business records exception because it was created in anticipation of litigation — appellant having just, earlier the same day, confessed that he had been stealing materials from the warehouse. Volner testified that, when she went to the Houston warehouse on November 20, 2006, she did not know the source of the inventory discrepancies. She said that it was only after appellant confessed that morning that she knew she was dealing with theft. Volner testified that her count of the inventory depicted in Exhibit 12 was not done to substantiate appellant’s theft or in preparation for litigation.

Volner also testified, however, that her inventory was performed after she received appellant’s confession and with knowledge that there was a potential for civil and criminal liability. Specifically, Volner testified that the inventory was performed to “understand the full scope of our losses in order to understand what our recoveries would be.” Hence, Volner’s testimony shows that Exhibit 12, which depicts the items missing from the warehouse and the value of those items, was created for purposes of recovery, with knowledge that theft had taken place in the warehouse. See Dixon v. State, 940 S.W.2d 192, 195 (Tex.App.-San Antonio 1996, no pet.) (holding that list of missing items was not business record for purposes of the hearsay rule).

Further, the record shows that 3M hired Garcia to “investigate” appellant in October 2006; that Garcia contacted appellant on November 2, 2006; that Garcia brought a vehicle to appellant for tinting service on November 11, 2006; and that Garcia reported appellant’s conduct to Ostrom. Hence, when Ostrom and Volner went to the Houston warehouse on November 20, 2006 and conducted the inventory that comprises Exhibit 12, appellant had already been under investigation by 3M.

Because the “circumstances of preparation” of Exhibit 12 “indicate [a] lack of trustworthiness,” we conclude that Exhibit 12 does not comport with Rule 803(6). See Tex.R. Evid. 803(6); Dixon, 940 S.W.2d at 195. Thus, the trial court abused its discretion by admitting Exhibit 12 as a business record.

The erroneous admission of a hearsay statement constitutes non-constitutional error that is subject to a harm analysis. See Tex.R.App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Non-constitutional error must be disregarded unless it affected a substantial right of the defendant. Tex.R.App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). A substantial right is affected when the error had a substantial and injurious effect in determining the verdict. Johnson, 43 S.W.3d at 4. A conviction should not be overturned for such error if this court, after examining the record as a whole, has fair assurance that the error did not influence the trial court or had but a slight effect. See id.

Having examined the record as a whole, the State’s case against appellant was strong. Appellant does not contend on appeal that this alleged error contributed to his conviction. Rather, he contends that it contributed to his punishment, as follows: “It is entirely likely that the jury assessed punishment based on the dollar amount they believed stolen, particularly in light of the fact that they assessed a large fíne.”

The record shows that appellant was indicted for theft of property valued, in the aggregate, at over $200,000, which is a first-degree felony. See Tex. Penal Code Ann. § 31.03(a), (e)(7) (Vernon Supp. 2009). The range of punishment for a first-degree felony offense is confinement for 5 to 99 years, or life, and a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009).

Here, Volner testified that the total inventory losses suffered through August 2006, as reflected in Exhibit 11, were $680,824.32. Exhibit 11 was admitted without objection. Hence, the State showed that well over the aggregate value allegation was substantiated. See Lehman v. State, 792 S.W.2d 82, 85 (Tex.Crim.App.1990). The jury assessed punishment at 6 years’ confinement — one year over the statutory minimum. The jury also assessed a fine of $10,000, which is the statutory maximum. However, it is well below, and well supported by, the State’s proof that appellant committed theft of property valued at $680,824.32. Given the level of theft that was proven without objection, we have fair assurances that the additional $90,960.99 appellant challenges either did not influence the jury or have more than a slight affect. See Johnson, 43 S.W.3d at 4.

Because, after examining the record as a whole, we cannot conclude that a substantial right was affected, the error must be disregarded. See Tex.R.App. P. 44.2(b); Johnson, 43 S.W.3d at 4.

2. Confrontation Clause

At trial, Volner testified that she could not remember or identify a person named “John,” who was noted in defense Exhibits 1 and 8 as having assisted in counting the inventory on November 20, 2006. Appellant complains that, because Volner could not identify “John,” admission of Exhibit 12 violated his Sixth Amendment right to confront the witnesses against him.

A defendant’s right to confrontation under the Sixth Amendment is violated when a witness is permitted to relate out-of-court “testimonial” hearsay statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004); see De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). A statement is testimonial if it was made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364; see De La Paz, 273 S.W.3d at 680. Whether a statement is testimonial is a question of law. See De La Paz, 273 S.W.3d at 680. We review de novo the trial court’s ruling admitting evidence over a confrontation objection. Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006).

Here, we need not determine whether Exhibit 12, the inventory report, is testimonial in nature. Even if we assume, without deciding, that the trial court erred by admitting Exhibit 12 on this basis, the error was not harmful.

When an error is of constitutional dimension, we assess harm under Rule 44.2(a). See Tex.R.App. P. 44.2(a); Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App.2007) (“A violation of the Confrontation Clause is subject to harmless error analysis.”). Under Rule 44.2(a), appellant’s conviction must be reversed unless we determine, beyond a reasonable doubt, that the error did not contribute to the conviction or to the punishment. See Tex.R.App. P. 44.2(a). We assess whether there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion. Scott, 227 S.W.3d at 690. Among the relevant factors to consider are (1) the importance of the evidence to the State’s ease; (2) whether the evidence was cumulative of other evidence; (3) the presence or absence of other evidence corroborating or contradicting the evidence on material points; and (4) the overall strength of the State’s case. Id. We must also consider any other factor in the record that may shed light on the probable impact of the trial court’s error on the minds of average jurors. See id. Ultimately, after considering these various factors, we may not affirm unless we conclude beyond a reasonable doubt “that the error did not contribute to the conviction.” Id. at 690-91.

Applying the relevant factors, we conclude appellant was not harmed by any erroneous admission of Exhibit 12 on this basis. Based on appellant’s confession and the State’s evidence that appellant had stolen $680,824.32 in materials, the importance of John’s portion of Exhibit 12 was minimal, at best. Exhibit 12 was cumulative in that Exhibit 11 showed that well over the State’s aggregate value allegation of $200,000 was substantiated. See Lehman, 792 S.W.2d at 85. Even without the evidence of John’s data concerning a portion of the inventory, the State’s case against appellant was strong. Accordingly, we conclude beyond a reasonable doubt the erroneous evidence, if any, did not contribute to appellant’s conviction or punishment.

Accordingly, appellant’s second point of error is overruled.

Conclusion

We affirm the judgment of the trial court.

      . The court of criminal appeals has instructed that
      determining the legal and factual sufficiency of evidence requires the implementation of separate and distinct standards.... Courts and litigants should not combine their legal and factual sufficiency analyses. So while we recognize that any analyses o£ the facts in a given case will naturally overlap, a separate review under the applicable standard is necessary to ensure that the law was properly applied.

        Laster v. State, 275 S.W.3d 512, 519 (Tex.Crim.App.2009).