author: SANDEE BRYAN MARION, Justice.

text:
    Alfredo HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00544-CR.
    Court of Appeals of Texas, San Antonio.
    May 26, 2010.
    Discretionary Review Refused Nov. 3, 2010.

      Ray Taylor, Ray Taylor & Associates, P.C., San Antonio, TX, for Appellant.
    John A. Olson, Assistant District Attorney, Rio Grande City, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

A jury found appellant Alfredo Hernandez guilty of criminal solicitation of a minor and assessed punishment at ten years’ confinement. The trial court suspended the sentence and placed appellant on ten years’ community supervision. On appeal, appellant argues (1) the trial court lacked jurisdiction, and therefore, his conviction is void, (2) the trial court erred in refusing to admit into evidence the complainant’s MySpace page, and (3) there is insufficient corroboration to establish his guilt. We affirm.

FACTUAL BACKGROUND

Appellant’s first cousin’s daughter, B.M., is the complainant in this case. The State alleged appellant solicited sexual acts from B.M. on Friday, April 18, 2008, during a school-sponsored walk-a-thon. Prior to the walk-a-thon, appellant — a police officer — had several encounters with B.M., including stopping in his patrol car to ask her how she was doing in school, giving her a ride to the store, giving her a ride home from the pool, and asking her about her sexual activity with her boyfriend. On the evening of the walk-a-thon, B.M. — a seventh grade student — walked with several of her friends to the walk-a-thon. Along the way, another girl in a ear tried to run the girls over. When the girls arrived at the school, B.M. reported the car incident to appellant. Appellant warned her not to get into a fight. Later, appellant told B.M. and several of her friends that he wanted to talk to B.M. alone. According to B.M., appellant asked her if she would give him a “hand job” and a “blow job,” and he asked to “put it in [her] for 15 minutes” in exchange for money. Initially appellant offered her $100, but B.M. testified “he went [up to] $200.” M.A.S., B.M.’s boyfriend at the time, testified he saw appellant talking to B.M. at the walk-a-thon and B.M. “had a face on as if she didn’t want to talk to him. And just with her arms down.” The conversation lasted for five to ten minutes. When B.M. and appellant finished talking, B.M. returned and sat on a bench with her friend, S.S. Later, M.A.S. asked B.M. what appellant told her because “she looked unhappy while she was talking to him.” B.M. responded that she would tell him later.

S.S. and B.M. left the walk-a-thon together, stopped by S.S.’s house, and eventually went to B.M.’s aunt’s house. While there, B.M. told S.S. what appellant said to her at the walk-a-thon. S.S. stated B.M. was crying, and S.S. told her that she needed to report the solicitation. The two then met M.A.S. and told him what had happened. S.S. also testified B.M. told her that appellant had offered to pick her up at night at any time, and on the night of the walk-a-thon, appellant offered to give B.M. a ride to her father’s house the next day. The following Monday, B.M. reported the solicitation to Hilda Moreno, the school counselor. Moreno notified the principal of the school and Child Protective Services (“CPS”).

Irasema Sanchez, B.M.’s step-mother, testified she went with B.M. to the police station to report the solicitation. While there, she received a phone call from appellant who told her to “talk to [B.M.] and remind her that we were family, ... for her to leave everything the way it was, [and] that he had offered her a hundred dollars but it was for her quinceanera dress.” She stated appellant then asked to talk to B.M.’s father (appellant’s cousin), B.M.’s father put the phone on speaker, and appellant told him the same thing.

Eduardo Enriquez, a special investigator for CPS, testified he spoke with appellant one week after the solicitation. Appellant agreed to give an oral statement and made it clear to Enriquez that he and B.M. were related and that he was trying to keep her out of trouble because she was getting into fights and running away. Appellant told Enriquez that B.M. had run away several times in the past and her mother was having a lot of problems with her. Appellant, however, could not produce any documentation reflecting B.M. was troubled or had ever run away, nor did Enriquez’s investigation reveal any reports of B.M. having run away. When asked during the interview to describe B.M. physically, appellant stated, “Oh yeah my niece, she’s a very beautiful girl.” He stated she had “beautiful green eyes,” and she was “white complected, guerita.” Enriquez testified that appellant’s demeanor changed when he began to describe B.M. — “he reclined back and like ‘Oh yeah, she’s,’ I mean his whole complexion changed. Brought a smile to his face, said she was a real beautiful girl.” Appellant commented that most girls in the area were dark complected, but B.M. was “guerita.”

Jovita Shives, a CPS investigator, testified she was present during appellant’s interview with Enriquez. According to Shives, appellant said he talked to B.M. on two occasions the evening of the walk-a-thon: the first time he just said hello; the second time she' was with a group of friends when appellant stopped her and insisted on speaking to her alone regarding a fight. Appellant offered to pick B.M. up after the walk-a-thon to look for the vehicle that tried to run her over. After learning of the solicitation allegations, appellant stated he contacted B.M.’s grandmother and asked her to arrange a meeting between himself and B.M.’s father. He asked B.M.’s grandmother to tell B.M. to tell the truth. When asked to describe B.M., appellant said she was a problematic child who ran away at three o’clock in the morning and who was always getting into fights. He stated she was “nothing but trouble.” When asked to describe her physically, appellant “threw himself back in the chair, ... threw his hands up and said ..., ‘She’s beautiful. She’s got green eyes and black eye lashes ..., she’s beautiful. She’s thin, light skinned.” When asked specifically about oral sex, he commented that “he wished every man could have it more often, blow jobs.”

Pedro Castillo, a sergeant in the police department at the Rio Grande City school district, testified he also interviewed appellant. Appellant stated he talked to B.M. the night of the walk-a-thon, offered to file a report about the car incident, and offered her transportation if she needed it. Castillo, however, testified no report had ever been filed and no referrals had been made regarding B.M. running away.

B.M.’s mother testified she never had a reason to report B.M. as a runaway, B.M. had never been referred to the juvenile authorities, and there were no complaints regarding B.M. in her school activities.

JURISDICTION

In his first, second, and third issues on appeal, appellant argues his conviction is invalid because his indictment was not properly returned and presented. Appellant points out he was indicted by a grand jury empaneled by the 381st Judicial District Court (“381st”); his indictment, however, was filed in the 229th Judicial District Court (“229th”) — the court in which appellant was later tried and convicted. Appellant asserts his case was not “officially transferred” from the 381st to the 229th; therefore, the 229th did not have jurisdiction over the matter, and his conviction is void.

Criminal district courts have original jurisdiction in felony criminal cases. Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). In order to- vest a court with jurisdiction of a criminal action, a grand jury must present an indictment or information charging a person with the commission of an offense. Tex. Const. art V, § 12(b); see Tex.Code Crim. Proc. art. 20.21. Although a specific district court may impanel a grand jury, it does not necessarily follow that all cases returned by that grand jury are assigned to that court. Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. ref'd). A case assigned to a district court other than the district court to which the grand jury presented the indictment amounts only to a procedural irregularity, not a jurisdictional defect. See Tamez v. State, 27 S.W.3d 668, 671 (Tex.App.-Waco 2000, pet. ref'd) (no jurisdictional defect where grand jury empaneled by 232nd Judicial District Court of Harris County returned indictment, which was subsequently filed in 180th Judicial District Court of Harris County); see also State v. Smith, 957 S.W.2d 163, 164-65 (Tex.App.-Austin 1997, no pet.) (indictment returned by Runnels County grand'jury but filed in Tom Green County district court should have been challenged before entry of guilty plea); see also Mosley v. State, 172 Tex.Crim. 117, 120, 354 S.W.2d 391, 393-94 (1962) (rejecting “jurisdictional” challenge where defendant was tried and convicted in district court other than one that empaneled grand jury ‘ even though record contained no transfer order). An objection to a procedural irregularity should be raised in a pretrial motion. Tamez, 27 S.W.3d at 671.

Here, appellant’s indictment reflects that it was presented to the 381st by a grand jury empaneled by the 381st: “THE GRAND JURY OF STARR COUNTY, TEXAS, duly selected, empaneled, sworn, charged, and organized at the April 2008 TERM of the 381st District Court for Starr County, upon their oaths 'present to said Court ...” (emphasis added). The indictment then charges appellant with criminal solicitation of a minor, a felony offense. Therefore, the indictment was properly presented to vest the 381st with jurisdiction of appellant’s cause, and any objection to proceeding in the 229th— a procedural irregularity — should have been raised in a pretrial motion. Appellant, however, did not complain to the trial court about proceeding in the 229th. Consequently, appellant’s complaint concerning the indictment, raised for the first time on appeal, is not preserved for our review.

ADMISSIBILITY OF EVIDENCE

In his fourth and fifth issues on appeal, appellant argues the trial court erred when it refused to admit into evidence B.M.’s MySpace page, thereby violating his constitutional rights to confrontation and due process. The MySpace page, created by B.M., shows a picture of B.M. and her boyfriend at school taken sometime after the alleged solicitation. The caption to the picture reads, “omg how nasty i get it all the time jeje.” Appellant contends the picture and caption imply that, prior to her encounter with appellant, B.M. had knowledge of the sexual terms she accuses him of using in the solicitation. Thus, according to appellant, the evidence is relevant because it tends to show B.M. actually participated in certain sexual activities, and therefore, she did not learn the words referring to these activities for the first time from anything appellant said to her. According to appellant, the MySpace page supports his theory that B.M. fabricated the accusation against him.

We review a trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. Russeau v. State, 291 S.W.3d 426, 438 (Tex.Crim.App.2009); Pollard v. State, 255 S.W.3d 184, 187 (Tex.App.-San Antonio 2008), aff'd, 277 S.W.3d 25 (Tex.Crim.App.2009). A trial court abuses its discretion when its decision is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). We may not reverse a trial court’s decision regarding the admissibility of evidence solely because we disagree with the trial court’s decision. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court’s judgment if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex.Crim.App.2009).

Relevant evidence is evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. Tex.R. Evid. 401. If the evidence is not relevant, it is not admissible. See id. 402. In deciding whether evidence is relevant, a trial court should ask whether a reasonable person, with some experience in the real world, would believe the evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit. Montgomery, 810 S.W.2d at 376; Benoit v. State, 87 S.W.3d 668, 673 (Tex.App.-San Antonio 2002, pet. ref'd).

Here, the image on the MySpace page depicts B.M. smiling while her boyfriend has his arm around her. The caption to the picture, “omg how nasty i get it all the time jeje,” is vague, offers no contextual support, and is potentially misleading. We are left to speculate as to what the caption refers, the nature of its intended meaning, and whether it was written in jest. Even if we take the caption to imply what appellant asserts it implies — that B.M. was sexually active prior to the solicitation — we disagree that the implication makes it more likely that B.M. fabricated the allegation of solicitation. Moreover, because the picture was taken after the solicitation, the caption also was posted after the solicitation. Therefore, the caption has no specific relevance to B.M.’s knowledge of sexual terms before her encounter with appellant. For these reasons, we conclude the evidence is irrelevant, the trial court did not abuse its discretion in refusing to admit it, and its exclusion did not violate appellant’s constitutional rights. See Hale v. State, 140 S.W.3d 381, 396 (Tex.App.-Fort Worth 2004, pet. ref'd) (Constitution requires introduction of only otherwise relevant and admissible evidence).

CORROBORATION REQUIREMENT

In his sixth and seventh issues on appeal, appellant argues the evidence adduced at trial, after excluding B.M.’s testimony, did not sufficiently rise to the level of strongly corroborative evidence of his guilt, which is required under section 15.031(c) of the Texas Penal Code. See Tex. Penal Code Ann. § 15.031(c) (Vernon 2003). We must disagree.

A. Penal Code Section 15.031(c)

As applicable in this case, a person commits the offense of solicitation of a minor if, with intent that a sexual assault be committed, the person by any means requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute a sexual assault. Tex. Penal Code §§ 15.031(b), 22.011; Lankford v. State, 255 S.W.3d 275, 276-77 (Tex.App.-Waco 2008, pet. ref'd). However, a person may not be convicted of solicitation of a minor on the uncorroborated testimony of the minor allegedly solicited “unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation.” Tex. Penal Code § 15.031(c).

The corroboration required under section 15.031(c) is analogous to, and should be read in conjunction with, the corroboration requirement found in article 38.14 of the Texas Code of Criminal Procedure. Lankford, 255 S.W.3d at 277; see Richardson v. State, 700 S.W.2d 591, 594 (Tex.Crim.App.1985). Article 38.14 provides that a conviction may not be sustained upon the testimony of an accomplice unless it is corroborated by other testimony which tends to connect the defendant with the offense. Tex.Code Crim. Proc. art. 38.14. Thus, the corroboration in criminal solicitation cases must link the defendant to the crime at two separate stages: the evidence must be corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation. Richardson, 700 S.W.2d at 594. In Richardson, the defendant argued the word “strongly” suggested a more stringent standard than that of article 38.14 should be applied. The Court of Criminal Appeals disagreed, however, and explained that the “strongly corroborative” requirement does not indicate a different standard of proof; rather, it merely reemphasizes the need for an additional safeguard, that being that the corroboration must go to both the solicitation and the solicitor’s intent. Id.; see Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991) (citing favorably to Richardson); Holladay v. State, 709 S.W.2d 194, 204 (Tex.Crim.App.1986) (same).

In assessing the sufficiency of the corroborating evidence, we eliminate the minor victim’s testimony from consideration and then, viewing the remaining evidence in the light most favorable to the jury’s verdict, determine whether the combined weight of the remaining evidence, even if entirely circumstantial, tends to connect the accused with the crime. See Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008); Richardson, 700 S.W.2d at 594. The tends-to-connect standard presents a low hurdle for the State because the evidence need not directly link the accused with the crime or be sufficient in itself to establish guilt. See Brown, 270 S.W.3d at 567; Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996). However, a mere showing of being associates or that the accused and the minor were together before or shortly after the commission of the offense is not by itself sufficient corroboration. See Sheffield v. State, 847 S.W.2d 251, 259 (Tex.App.-Tyler 1992, pet. ref'd). Also, evidence that merely goes to show motive or opportunity of the accused to commit the crime is insufficient corroboration. See id. at 260. The person allegedly solicited may state any number of facts that are corroborated by evidence of other witnesses; still, if the facts thus corroborated do not tend to connect the accused with the crime, the requirements of section 15.031(c) are not met. See id. Finally, we acknowledge the jury is permitted to rely upon reasonable inferences in determining whether the other facts and suspicious circumstances tend to connect the accused with the offense. Peden v. State, 917 S.W.2d 941, 946-47 (Tex.App.-Fort Worth 1996, pet. ref'd). Thus, when considering the combined weight of the remaining evidence, we also consider reasonable inferences that can be drawn therefrom. See id.

B. Sufficiency of Corroborating Evidence

It is undisputed that appellant and B.M. talked together privately at the walk-a-thon. This fact alone, however, will not suffice to corroborate either the solicitation or appellant’s intent. See Sheffield, 847 S.W.2d at 260 (evidence that merely shows opportunity to commit crime is insufficient corroboration). However, after coupling this evidence with all the other corroborating evidence, we conclude the combined weight of the evidence tends to connect appellant to both the solicitation and the requisite intent. Cf. Dowthitt, 931 S.W.2d at 249 (evidence of presence coupled with other suspicious circumstances may tend to connect accused to offense). First, as to the solicitation, M.A.S. testified B.M. appeared unhappy while talking to appellant. S.S. testified B.M. cried when she told S.S. what appellant said to her. B.M.’s step-mother testified appellant admitted to offering B.M. $100. The stepmother also testified appellant called her and asked her to remind B.M. that they “were family” and to “leave everything the way it was.... ” Appellant commented to the investigator that he “wished every man could have it more often, blow jobs.” Based on this evidence, the jury could have reasonably inferred appellant solicited a sexual act from B.M.

Second, as to appellant’s intent, his admission that he offered B.M. $100, and Enriquez’s testimony that appellant’s entire demeanor and complexion changed as he described B.M.’s physical appearance support the inference that appellant intended B.M. to act upon the solicitation. We conclude the evidence, after excluding B.M.’s testimony, tends to connect appellant to both the solicitation and the requisite intent, and therefore, the evidence is sufficiently corroborative under Penal Code section 15.031(c).

CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s judgment.


source: Caselaw Access Project

author:
KAREN ANGELINI, Justice.
      STEVEN C. HILBIG,

license: Public Domain

text:
    In the Interest of B.R.
    No. 04-09-00362-CV.
    Court of Appeals of Texas, San Antonio.
    May 26, 2010.

      G. Carole Daubenmire, Law Office of G. Carole Daubenmire, P.C., San Antonio, TX, for Appellant.

      Amy A. Geistweidt, Higdon, Hardy & Zuflacht, L.L.P., San Antonio, TX, for Ap-pellee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARJALYN BARNARD, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Luis Vega appeals the judgment ordering him to pay $67,943.78 for retroactive child support, $850.00 for past medical expenses, and $840.00 a month for current child support. Luis contends the trial court abused its discretion in ordering retroactive child support back to the time of B.R.’s birth, ordering payment of past medical expenses, calculating current child support based on his potential future income, and prohibiting him from filing an action to reduce the amount of child support set by the court. We affirm in part and reverse and remand in part.

BACKGROUND

B.R. was born on May 17, 1994, to Amber Klausner and Luis Vega. At the time of BR.’s birth, Amber and Luis were both in the United States Military. Amber and Luis never married, and no court order delineated Luis’s rights and duties as BR.’s father. Luis visited B.R. sporadically over the years and provided minimal child support. Luis did not pay any of B.R.’s medical expenses or provide her with health insurance. However, Luis claimed B.R. as a dependent, which resulted in an increase in his military compensation.

When B.R. was born, Luis was an enlisted soldier in the army. In 1997, when his military contract ended, Luis moved to reserve status. Luis testified he returned home to Puerto Rico, where he worked as a pharmacy technician, attended school, and completed his undergraduate studies and law school.

In 2007, Amber filed suit seeking termination of Luis’s parental rights so that B.R.’s stepfather could adopt her. Luis, however, did not want his rights terminated and sought an adjudication of parentage and a determination of his rights and duties as BR.’s father. In response, Amber requested retroactive child support in the event Luis’s parental rights were not terminated. At trial, Amber testified regarding B.R.’s relationship with her stepfather and her minimal contact with Luis. The record reflects that since B.R.’s birth, Luis has paid $26,450.00 and that based on his income and the Texas child support guidelines, he should have paid $85,434.82. Amber and Luis reached an agreement on all issues regarding parental rights, but could not agree on retroactive and current child support.

Granting Amber’s request for retroactive child support, the trial court determined that Amber was entitled to a lump sum of $67,943.78 for child support arrears going back to B.R.’s birth and $850 in past medical expenses. The trial court also ordered Luis to pay $840.00 in current monthly child support. Luis now appeals.

Standard of Review

We review a trial court’s order for child support, including an award for retroactive support, for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In re Guthrie, 45 S.W.3d 719, 727 (Tex.App.-Dallas 2001, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding principles or rules. Worford, 801 S.W.2d at 109; In re Guthrie, 45 S.W.3d at 727. In determining whether the trial court abused its discretion, we do not substitute our judgment for that of the trial court’s and will not disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. See Walker v. Packer, 827 S.W.2d 883, 889-40 (Tex.1992) (orig.proceeding).

The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied). “In family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standard of review; as a result, legal insufficiency is not an independent ground of reversible error, but instead constitutes a factor relevant to our assessment of whether the trial judge abused her discretion.” Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex.App.-Dallas 2007, no pet.).

In a non-jury trial, where no findings of fact or conclusions of law are filed or requested, all findings necessary to support the trial court’s judgment are implied. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992); Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). A trial court’s implied findings of fact in a bench trial have the same force and dignity as a jury’s verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991).

Discussion

A. Retroactive Child Support

Luis contends the trial court abused its discretion in requiring him to pay retroactive child support in the amount of $67,943.78. Section 160.636 of the Texas Family Code provides that, upon a finding of parentage in a paternity action, a trial court may order retroactive child support as provided by chapter 154 of the Family Code. Tex. Fam.Code Ann. § 160.636(g) (Vernon Supp.2009). Chapter 154, in turn, provides the trial court with guidelines in ordering retroactive child support:

(a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.
(b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:
(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;
(2) the obligor had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obli-gor’s family; and
(4) the obligor has provided actual support or other necessaries before the filing of the action.
(c) It is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child.
(d) The presumption created under this section may be rebutted by evidence that the obligor:
(1) knew or should have known that the obligor was the father of the child for whom support is sought; and
(2) sought to avoid the establishment of a support obligation to the child.
(e) An order under this section limiting the amount of retroactive support does not constitute a variance from the guidelines requiring the court to make specific findings under Section 154.130.
(f) Notwithstanding any other provision of this subtitle, the court retains jurisdiction to render an order for retroactive child support in a suit if a petition requesting retroactive child support is filed not later than the fourth anniversary of the date of the child’s 18th birthday.

Id. § 154.131 (Vernon 2008). Section 154.131 does not bind the trial court to these listed factors in determining retroactive child support, but is merely intended to guide the trial court in determining the amount of retroactive child support. Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.-Corpus Christi 2001, no pet.). The statutory language vests the trial court with discretion to award retroactive support and the amount of that support. In re Guthrie, 45 S.W.3d at 727.

Luis first argues that the trial court abused its discretion in ordering retroactive child support covering a thirteen-year period because Amber did not present evidence rebutting subsection 154.131(c)’s presumption that an award of four years of retroactive child support is reasonable and in the best interest of B.R. See Tex. Fam.Code Ann. § 154.131(c) (Vernon 2008). However, Luis’s reliance on the statutory presumption provided by subsection 154.131(e) is misplaced. Section 154.131(c)’s presumption applies when the trial court’s order limits the amount of retroactive child support to an amount not exceeding the total amount of support that would have been due for the four years preceding the date the petition seeking child support was filed. See Tex. Fam. Code Ann. § 154.131(c) (Vernon 2008). Nowhere does subsection 154.131(c) prohibit a trial court from awarding an amount greater than four years of retroactive child support. That is, if a trial court limits the retroactive child support to the four year amount, the parent seeking more than that amount must rebut the presumption provided by subsection 154.131(c) by proving that the obligor knew or should have known he was the father of the child and that the obligor sought to avoid the establishment of a support obligation to the child. See Tex. Fam.Code Ann. § 154.131(d) (Vernon 2008). Here, however, the trial court’s order did not limit the retroactive child support to an amount representing four years of child support; therefore, subsection 154.131(c)’s presumption was not triggered and does not apply to this case.

Next, relying on subsection 154.131(b), Luis argues that the amount of the retroactive child support ordered by the trial court is unreasonable and places an undue burden on his family. However, Luis did not offer any evidence of his financial responsibilities and does not demonstrate how he is unduly burdened by the award. Therefore, we look to the evidence and the general guidelines for setting child support in order to determine whether the trial court abused its discretion in awarding retroactive support.

It is undisputed that Luis knew of B.R.’s existence her entire life and received credit for B.R. as a dependent on his military compensation. The evidence indicates that Luis was employed since B.R.’s birth and received military bonuses. Based on Luis’s financial information, his child support contribution under the state attorney general standards for the past fifteen years should have been $85,434.82, but he paid only $26,450.00. Luis contributed very little toward B.R.’s care and support in comparison to the amount of income he received. We conclude there is evidence to support the trial court’s award of retroactive child support and, therefore, the trial court did not abuse its discretion.

B. Current Child Support

Luis next contends the trial court abused its discretion in calculating current child support on the assumption he could earn $80,000.00 a year. The trial court acknowledged that Luis was not employed, but found that based on Luis’s salary history and earning capacity he could earn at least $80,000.00 a year.

Section 154.066 of the Family Code provides that a trial court may order a parent to pay more child support than what the child support guidelines would require if the parent could potentially earn more money, but has intentionally chosen not to do so. See Tex. Fam.Code ANN. § 154.066 (Vernon 2008). In order for a court to find a parent is intentionally underemployed or unemployed under section 154.066, there must be evidence the parent reduced his income for the purpose of decreasing his child support payments. See DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). There is no presumption that when a parent is no longer as lucratively employed as he was in previous years, he reduced his income to avoid child support payments. See Gaxiola v. Garcia, 169 S.W.3d 426, 432 (Tex.App.-El Paso 2005, no pet.). The requisite intent may be inferred from such circumstances as the parent’s education, economic adversities and business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617 (Tex.App.-Texarkana 2000, no pet.). “If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.” Tex. Fam.Code Ann. § 154.066 (Vernon 2008); see Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex.App.-San Antonio 1997, no writ). Once the obligor has offered proof of his current wages, the obli-gee bears the burden of demonstrating the obligor is intentionally underemployed. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex.App.-Corpus Christi 2002, no pet.); DuBois, 956 S.W.2d at 610.

Luis offered proof that his income was derived from his rental property and military reserve pay. However, the trial court presumed Luis had the earning potential of $80,000.00 a year and ordered him to pay $840.00 per month in child support. The trial court took into consideration Luis’s income for the two years during which he was activated from reserve status and deployed to Iraq, once in 2003 and the second in 2006. Amber contends Luis was intentionally underemployed, comes to the court with unclean hands, and has made significant income during his child’s life. However, the issue is whether Luis was underemployed for the purpose of decreasing child support at the time of the trial. See In re K.N.C., 276 S.W.3d 624, 627 (Tex.App.-Dallas 2008, no pet.). The record indicates Luis was an enlisted soldier with a signed military contract that could have been renewed in 1997, but Luis chose to take reserve status and move home to continue his education. Since that time, Luis obtained his undergraduate and law degrees. At the time of trial, Luis was planning to take the bar examination and had an interview in Washington D.C. for a position as a legislative aid. Luis does not dispute that he voluntarily left a lucrative position with the military, but explains he did so to pursue the law degree that he now holds.

Luis’s decision to leave the military in 1997 to continue his education does not give rise to an inference of voluntary underemployment to avoid paying child support. See In re J.G.L., 295 S.W.3d 424, 428 (Tex.App.-Dallas 2009, no pet.). There was no court ordered child support in 1997, and there is no evidence Amber was asking Luis for support. Luis accomplished what he set out to do in 1997 — he obtained an undergraduate and a law degree. We conclude there was no evidence presented to the trial court to support a finding of voluntary underemployment or unemployment at the time of the trial. Therefore, the trial court abused its discretion in basing child support on the presumption of Luis’s earning potential of $80,000.00 a year. See id. We reverse the judgment in part and remand the cause so that the trial court can determine current child support pursuant to the applicable Family Code provisions.

Luis also claims the trial court erred in requiring him to pay half of B.R.’s counseling fees, which he claims were incurred solely for the purpose of terminating his parental rights. Amber testified the counseling was not sought specifically for preparing for the adoption but because B.R. was going through a tumultuous time. The trial court properly exercised its discretion in requiring Luis pay one-half of B.R.’s counseling fees. See Tex. Fam.Code Ann. §§ 154.008, 154.064 (Vernon 2008).

C. Modification of Child Support

Finally, Luis contends the trial court erred in ordering that he could not file an action seeking to reduce the current child support amount. However, nothing in the judgment restricts Luis from seeking relief in the trial court as allowed by the applicable law. Thus, Luis’s third issue presents nothing for review.

Conclusion

The trial court abused its discretion in calculating current child support on the assumption Luis had the earning potential of $80,000.00 a year. Therefore, we reverse the trial court’s judgment setting current child support at $840.00 a month, and remand the cause to the trial court for a new trial on that issue. In all other respects, we affirm the trial court’s judgment.

Dissenting Opinion by: STEVEN C. HILBIG, Justice.

STEVEN C. HILBIG,

Justice, dissenting.

I respectfully dissent from part A of the majority opinion because the majority fails to properly interpret section 154.131(c) of the Family Code.

When interpreting statutes, our primary concern is the Legislature’s intent as expressed by the language of the statute. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008); see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). When we interpret a code enacted by the legislature, we read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005); Jones v. State, 175 S.W.3d 927, 930 (Tex.App.-Dallas 2005, no pet.). Even when a statute is not ambiguous on its face, the Code Construction Act allows a reviewing court to consider other matters in ascertaining legislative intent, including the objective of the law, the legislative history, and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023 (Vernon 2006); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Shumake, 199 S.W.3d at 284. We must examine the legislature’s words in context of the statute as a whole. Harris Co. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009).

Section 160.636 of the Texas Family Code authorizes the trial court to order retroactive child support as provided by Chapter 154 of the Family Code. Tex. Fam. Code Ann. § 160.636(g) (Vernon Supp. 2009). Chapter 154 subsections c and d provide:

(c) It is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child.
(d) The presumption created under this section may be rebutted by evidence that the obligor:
(1) knew or should have known that the obligor was the father of the child for whom support is sought; and
(2) sought to avoid the establishment of a support obligation to the child.

Id. § 154.131 (Vernon 2008).

Construing the amendment to Chapter 154 according to the plain and common meaning of its words, subsection (c) creates a presumption that retroactive child support representing an amount that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child. Perforce, if the trial court orders an amount that is more than what would have been due for the preceding four years, the order is not reasonable and not in the child’s best interest. Thus, the legislature added subsection (d), which allows the trial court to order an amount of retroactive child support that exceeds what would have been due in the previous four years if the obligor knew or should have known that he was the father of the child and avoided the establishment of the support obligation. This procedure serves public policy concerns of what is in the best interest of the child and what is reasonable for both the mother and father. The presumption addresses both the situation where a mother keeps knowledge of the child’s existence from the biological father or when a father actively avoids the establishment of a child support.

The legislative history supports my interpretation of the statute. Subsections (c), (d), and (e) were added to the Family Code by way of H.B. 899 of the 77th Regular Session of the Texas Legislature. The Honorable Senfronia Thompson was the author of the bill and testified about the intent of the bill during a committee hearing on March 6, 2001. See testimony of Representative Thompson on H.B. 899, 77th R.S. (2001), available at htbp://www. house, state, tx. us/committees/audio 77/3W-htm (archived broadcasts March 6, 2001). In her testimony, Representative Thompson told the committee that the purpose of the bill was to limit an award of retroactive child support to no more than what would have been due for the preceding four years unless the presumption contained in the bill was rebutted. Id. Representative Thompson explained the impetus of the bill was a study that found men who are saddled with a large amount of retroactive child support are less likely to meet current child support obligations. Id.; see also John J. Sampson et. al., Sampson & Tindall’s Texas Family Code Ann., Title 5, subtitle B, chap. 154, pg. 614 cmt. (Thomson West 2009) (“In effect, [subsection (c) ] creates an estoppel by laches defense with the burden of refutation falling upon the obligee or the state, as the case may be.”). The majority errs in holding subsections (c) and (d) inapplicable to this case.

Applying the presumption, I would reverse and remand the trial court’s retroactive child support award. Here, there is insufficient evidence to rebut the presumption. Although Luis has acknowledged he is B.R.’s father, Amber’s only evidence to rebut the second prong of the presumption is that Luis provided some irregular support for B.R., that such support fell “embarrassingly” short of the support he should have paid, and Luis knew he had a duty to support B.R. but failed to take steps to establish a formal support obligation. This evidence does not directly or by inference show that Luis sought to avoid the establishment of a support obligation. Because there is no evidence rebutting the second prong of the presumption, the retroactive child support award must be limited to an amount not to exceed the total amount that would have been due for the four years preceding the date the petition seeking support was filed. Tex. Fam.Code Ann. § 154.131(c)(d)(Vernon 2008).

I respectfully dissent to the majority’s resolution of the retroactive child support issue. This court should hold the trial court abused its discretion, reverse the part of the trial court judgment that awards $67,943.78 for retroactive child support, and remand the ease for a new determination of retroactive child support. I join in all other aspects of the majority opinion.

      . In interpreting a statute, our goal is to ascertain and give effect to the Legislature's intent in enacting it. In re Candles, 52 S.W.3d 698, 702 (Tex.2001) (orig.proceeding). We note that the dissent relies on legislative history to support its interpretation of the Legislature’s intent in enacting section 154.131. However, while the Code Construction Act does allow a court to consider legislative history, among other matters, see Tex. Gov't Code Ann. § 311.023 (Vernon 2005), the Texas Supreme Court has warned against courts relying on legislative history instead of the plain language of a statute. In Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex.2006), the supreme court stated that "[o]rdinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on.” (emphasis added). "This enacted language is what constitutes the law, and when a statute's words are unambiguous and yield a single inescapable interpretation, the judge's inquiry is at an end.” Id. at 651-52. Thus, "wherever possible,” courts should "construe statutes as written”; only "where enacted language is nebulous” may courts "cautiously consult legislative history to help divine legislative intent.” Id. at 652. The supreme court explained that it used the word "cautiously” because while it recognized that "the Code Construction Act expressly authorizes courts to use a range of construction aids, including legislative history,” it was "mindful that over-reliance on secondary materials should be avoided, particularly where a statute’s language is clear.” Id. at 652 n. 4. According to the court, ”[i]f the text is unambiguous, we must take the Legislature at its word and not rummage around in legislative minutiae.” Id. Because the text of section 154.131 is unambiguous, we rely on the plain words of the statute rather than legislative history.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    Jamie CRENSHAW, Appellant/Cross-Appellee, v. KENNEDY WIRE ROPE & SLING COMPANY and Newco Manufacturing Company, Inc., Appellees/Cross-Appellants.
    No. 04-09-00410-CV.
    Court of Appeals of Texas, San Antonio.
    June 30, 2010.

      Timothy Patton, Timothy Patton, P.C., San Antonio, TX, Steve T. Hastings, Henry Blackmon, Hastings Law Firm, Corpus Christi, TX, for Appellant.
    David Stephenson, Kathryn A. Stephens, Geoffrey N. Courtney, Clemens & Spencer, P.C., San Antonio, TX, Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX, David McFarland, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

PHYLIS J. SPEEDLIN, Justice.

Jamie Crenshaw appeals a take-nothing judgment rendered against her, arguing the trial court erred in submitting its jury instruction on common law marriage, and that such instruction was harmful. In a cross-appeal, Kennedy Wire Rope & Sling Company and Neweo Manufacturing Company, Inc. complain the trial court erred in denying their motions for directed verdict on the issues of common law marriage and products liability. We must decide whether the jury instruction on common law marriage was an improper comment on the weight of the evidence and, if improper, whether it was harmless because the defendants were entitled to directed verdicts on the holding out element of common law marriage and on the issue of liability.

BACKGROUND

David Goehring was fatally injured while working as a floorhand on a drilling rig operated by his employer Helmerich & Payne International Drilling Company (“H & P”). Goehring was moving two casing bails with the use of a braided wire rope sling. The sling was attached to the bail by a sliding choker hook while the other end was connected to the hoist on the rig. The accident occurred when the bails disengaged from the sling and struck Goehr-ing. Goehring’s parents filed a wrongful death suit against the manufacturer of the sling, Kennedy Wire Rope & Sling Company (“Kennedy”) as well as the manufacturer of the sliding choker hook, Neweo Manufacturing Company, Inc. (“Neweo”), alleging that the sling and hook were defectively designed. Jamie Crenshaw intervened in the death action, alleging she was Goehring’s common law wife. Goehr-ing’s parents subsequently settled with Kennedy and Neweo, leaving Crenshaw’s claims to proceed to trial.

At trial, the issue of whether a common law marriage existed between Crenshaw and Goehring was strongly contested. At the close of the evidence, Neweo and Kennedy moved for directed verdict on the issues of common law marriage and products liability. The trial court denied the motions for directed verdict and submitted the case to the jury. The first question in the court’s charge related to the issue of common law marriage and was submitted as follows:

Were Jamie Crenshaw and David Goehring married at the time of David Goehring’s death?
A man and a woman are married if they agreed to be married and after the agreement they lived together in Texas as husband and wife and represented to others that they were married.
Represented to others means that both Jamie Crenshaw and David Goehring represented to other people that they were married. Mere isolated references to each other as husband and wife does not amount to adequate evidence to prove that they represented to others that they were married.

(Emphasis added). Crenshaw objected to the italicized portion of the charge on the grounds that the instruction: (1) submitted language that does not appear in the statutory definition of common law marriage; (2) improperly embellished a statutory claim with unnecessary language despite the Texas Supreme Court having repeatedly held that trial courts should submit statutory claims in the statutory language; (3) contained incorrect statements of law; (4) improperly characterized certain evidence as only amounting to “mere isolated references;” (5) had not been approved as a proper submission by any Texas court or the Pattern Jury Charge Committee of the State Bar of Texas; and (6) constituted a direct comment on the weight of the evidence.

The jury answered “No” to the question of whether Crenshaw and Goehring were married, and therefore did not answer the remaining questions related to liability, proportionate responsibility, and damages. The trial court entered a take-nothing judgment against Crenshaw, and she timely appealed.

I. Jury Charge on Common Law Marriage

On appeal, Crenshaw contends the trial court erred in submitting the instruction on common law marriage, and that such instruction was harmful because it imper-missibly tilted or nudged the jury toward a finding against Crenshaw on the existence of a common law marriage.

A. Applicable Law and Standard of Review

Rule 277 of the Texas Rules of Civil Procedure states:

In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict.
The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of then-answers when it is properly a part of an instruction or definition.

Tex.R. Civ. P. 277. A jury instruction is proper if it: (1) assists the jury; (2) accurately states the applicable law; and (3) is supported by the pleadings and evidence. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855-56 (Tex.2009). Rule 277 affords the trial court considerable discretion in deciding what instructions are necessary and proper. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451-52 (Tex.1997); GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, 268 S.W.3d 822, 836 (Tex.App.-Fort Worth 2008, no pet.). In fact, a trial court is afforded even more discretion when submitting instructions than when submitting jury questions. GuideOne Lloyds, 268 S.W.3d at 836-37; Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied).

We review the trial court’s decision to submit a particular jury instruction for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam); Star Enterprise v. Marze, 61 S.W.3d 449, 456 (Tex.App.-San Antonio 2001, pet. denied). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding principles. Middleton, 982 S.W.2d at 469-70; Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). An erroneous instruction, however, does not require reversal if it did not cause the rendition of an improper judgment. Tex.R.App. P.44.1 (a) (“No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of ... probably caused the rendition of an improper judgment.”); Star Enterprise, 61 S.W.3d at 456. Charge error is generally considered harmful if it relates to a contested, critical issue. Columbia, 284 S.W.3d at 856. We review the entire record to determine whether the submission or refusal to submit an instruction probably resulted in an improper judgment. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998).

B. Discussion

In Texas, a common law marriage has three requirements: (1) the parties agreed to be married; (2) the parties lived together in Texas as husband and wife after they agreed to be married; and (3) the parties represented to others that they were married. Tex. Fam.Code ANN. § 2.401(a)(2) (Vernon 2006); Russell v. Russell, 865 S.W.2d 929, 932 (Tex.1993); Palacios v. Robbins, No. 04-02-00338-CV, 2003 WL 21502371, at *3 (Tex.App.-San Antonio Jul. 2, 2003, pet. denied) (mem. op.)

Crenshaw first argues the trial court erred in failing to submit a statutory claim in language tracking the statute; in other words, he asserts the submission on common law marriage did not track section 2.401 of the Family Code “as closely as possible.” Tex. Fam.Code Ann. § 2.401(a)(2); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994) (‘When liability is asserted based upon a provision of a statute or regulation, a jury charge should track the language of the provision as closely as possible.”). Second, Crenshaw contends the “mere isolated references” instruction amounted to an improper comment on the weight of the evidence. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984) (charge should not be embellished with surplus instructions that tend to lead the jury toward a particular answer or suggest the trial court’s opinion on the matter); Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984) (even a correct statement of the law should not be submitted if the instruction comments on the weight of the evidence or impermissibly tilts or nudges the jury one way or the other). Crenshaw takes particular offense to the addition of the word “mere” to modify the phrase “isolated references,” which she contends is already an inappropriate embellishment. See Lemos, 680 S.W.2d at 801 (instruction advising jury that “mere happening of a collision is not evidence of negligence” was an impermissible comment that tilted or nudged the jury one way or the other).

In response, Kennedy and Newco initially contend that the instruction did track the Family Code and that there was no error in deviating from the pattern jury charge by adding a definition or instruction. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45-46 (Tex.2007); see also H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex.1998) (trial courts have broad discretion to add definitions to a pattern jury charge that has not been declared the exclusive method of charging a jury in Texas); Whiteside v. Watson, 12 S.W.3d 614, 623-24 (Tex.App.-Eastland 2000, pet. denied) (same).

Additionally, both defendants assert the particular paragraph at issue was proper because it (1) assisted the jury, (2) accurately stated the law, and (3) was supported by the pleadings and evidence. See Tex.R. Civ. P. 277, 278; Columbia, 284 S.W.3d at 855-56. Kennedy argues that because the instruction was an accurate statement of the law, it necessarily helped the jury. In support of this argument, Kennedy cites nine Texas cases for the proposition that isolated or occasional references to “husband” or “wife,” without more, are no evidence of holding out. See Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex.1981) (when two persons not living together occasionally refer to each other as a “spouse,” these isolated references do not establish a common-law marriage); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960) (introduction of defendant as her “husband” to two close friends, and telling three others they were married, constituted no evidence of holding out to the public as man and wife where couple did not live together, and she publicly represented herself as single); Drummond v. Benson, 133 S.W.2d 154, 160 (Tex.Civ.App.-San Antonio 1939, writ ref'd) (isolated references to each other as “husband” and “wife” did not establish a common law marriage where couple lived together only intermittently and did not use the same last name); Nichols v. Lightle, 153 S.W.3d 563, 571 (Tex.App.-Amarillo 2004, pet. denied) (summary judgment affidavits showing, at most, only isolated references to each other as husband and wife, did not raise a genuine question of fact on the holding out element of common law marriage); Lee v. Lee, 981 S.W.2d 903, 907 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (woman’s introduction of man as her “husband” to two close friends, and telling a few customers and friends they were secretly married, constituted no evidence that both persons held themselves out to the public as man and wife); Flores v. Flores, 847 S.W.2d 648, 653 (Tex.App.Waco 1993, writ denied) (where couple had been married and divorced, man’s reference after divorce to his “wife” and statement that he was “living with my wife and helping her out” was insufficient to support a finding of holding out and agreement to re-marry); Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.App .-Houston [1st] Dist.1991, writ denied) (occasional introductions as husband and wife, without having reputation in the community of being married, did not establish element of holding out); In re Estate of Giessel, 734 S.W.2d 27, 31 (Tex.App.-Houston [1st] Dist.1987, writ ref'd n.r.e.) (references to each other as “husband” and “wife” were not the only evidence of holding out where record was replete with evidence of couple’s conduct and reputation in community representing they were married); Gary v. Gary, 490 S.W.2d 929, 934 (Tex.Civ.App.-Tyler 1973, writ ref'd n.r.e.) (occasional references to “husband” and “wife” did not support finding of holding out where couple were not sure they were divorced from previous marriage).

Kennedy and Newco further argue that if the instruction was a comment on the weight of the evidence, it was only incidental. To constitute a comment on the weight of the evidence, the instruction must indicate the trial judge’s opinion on the truth of the matter in question. Harris v. General Motors Corp., 924 S.W.2d 187, 188 n. 1 (Tex.App.-San Antonio 1996, writ denied); Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.App.Houston [1st Dist.] 1996, no writ). An incidental comment on the evidence is not error. Tex.R. Civ. P. 277; Harris, 924 S.W.2d at 188 n. 1. Here, Kennedy asserts the instruction merely tracked the holdings in case law, and did not tell the jury to give more weight to particular evidence over other evidence. Kennedy points to Lewis v. Anderson, 173 S.W.3d 556 (Tex.App.-Dallas 2005, pet. denied), as an analogous case on the issue of the existence of an informal marriage. In Lewis, the appellant objected to the following jury instruction:

You are instructed that proof of an agreement to be married may be established by circumstantial evidence or the conduct of the parties. Proof of cohabitation and representation to others that the couple are married may constitute circumstantial evidence of an agreement to be married.

Id. at 564. The Dallas court noted the instruction quoted directly from Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993), and was a correct statement of the law. Id. at 565. The court further held that, “[t]o the extent the instruction commented on the evidence, it did so only incidentally and did not suggest the trial court’s opinion concerning the issue.” Id. Moreover, the Dallas court concluded the instruction was “helpful” to the jury. Id. (citing Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998)).

We reject each of the arguments made by Kennedy and Newco. First, contrary to the impression created by the challenged language “mere isolated references,” there is no bright-line quantitative test for what constitutes sufficient evidence of holding out to others. All of the cases relied on by the defendants, and referenced supra, apply a very fact-specific analysis to determine whether the holding out element of a common law marriage has been proven under the particular facts and circumstances of the case. See, e.g., Threet, 333 S.W.2d at 364; Drummond, 133 S.W.2d at 160; Winfield, 821 S.W.2d at 651; Giessel, 734 S.W.2d at 31. Further, the mere fact that an instruction is a correct statement of the law does not mean it should be included in the jury charge, and does not prevent it from being an improper comment on the weight of the evidence. See Acord, 669 S.W.2d at 116 (in closely contested case, instruction that singled out for the jury that General Motors was neither an insurer nor a guarantor of an accident-proof product was an impermissible comment on the case as a whole); Maddox, 930 S.W.2d at 671 (noting every correct statement of the law does not belong in the jury charge, and holding surplus instruction on duty tended to lead the jury to a particular answer and suggested judge’s opinion on the issue).

Here, the challenged portion of the instruction on common law marriage, even if a correct statement of the law, nudged the jury in a specific direction, and was more than an incidental comment on the weight of the evidence. The language used, “[m]ere isolated references to each other as husband and wife does not amount to adequate evidence to prove that they represented to others that they were married,” constitutes a direct comment on one aspect of one element of the statutory claim of common law marriage on which the plaintiff had the burden of proof. See Russell, 865 S.W.2d at 932 (elements of common law marriage are agreement to marry, living together after agreement, and holding out). By stating that a certain category of evidence “does not” constitute sufficient evidence, the instruction favored the defensive theory that there was no evidence on the element of holding out, and impermissibly indicated the trial judge’s opinion on the issue. See Lemos, 680 S.W.2d at 801 (explicit instruction that particular evidence, “the mere happening of a collision,” is not evidence of negligence was materially different from instruction that particular evidence does not necessarily im/ply negligence, and was error). The instruction in the instant case differs significantly from the instruction in Lewis, relied on by Kennedy, which made the permissive statement that certain categories of proof “may” constitute circumstantial evidence of an agreement to be married. See Lewis, 178 S.W.3d at 564-65 (holding instruction was not a direct comment on weight of the evidence). In contrast, the challenged language here instructed the jury that “mere isolated references” to each other as husband and wife “does not amount to adequate evidence” of holding out, and thus directly commented on the weight of the evidence on that element of Crenshaw’s claim in violation of Rule 277.

Because it amounted to a direct comment on the weight of the evidence on one element of the contested issue of common law marriage, we hold the trial court abused its discretion in submitting the challenged portion of the jury instruction.

C. Harm Analysis

Having determined that the instruction was erroneous, we must now decide whether it probably caused the rendition of an improper judgment. See Tex. R.App. P. 44.1(a). Crenshaw maintains the erroneous instruction was harmful because whether a common law marriage existed was a contested, critical issue at trial. See Columbia, 284 S.W.3d at 856 (charge error is generally harmful if it relates to a “contested, critical issue”). The existence of a common law marriage was the only question answered by the jury, and was extensively addressed in voir dire, in opening statements, by trial witnesses, and in closing arguments. In addition, Crenshaw asserts the following closing argument by defense counsel compounded the harm:

If you look at the instruction on question one the very last sentence says mere isolated references to each other as husband and wife does not amount to adequate evidence. That’s the Judge telling you that. Mere isolated references. One time, two times, ten times over the course of several years that just doesn’t get it.

Crenshaw notes that in Timberwalk, the court held that an erroneous instruction constituted harmful error where “there was a vigorous dispute at trial” related to the instruction and counsel’s closing argument “focused the jury’s attention on the instruction and plainly misstated it.” Timberwalk, 972 S.W.2d at 755-56. We conclude the erroneous instruction was harmful because it definitively instructed the jury that a certain category of evidence on a contested, critical element of common law marriage was flatly inadequate, and therefore impermissibly suggested the trial judge’s opinion on the matter and nudged the jury toward a defensive theory. Moreover, the defendant’s closing argument to the jury quoted above stressed the erroneous instruction and highlighted the idea that the instruction revealed the judge’s opinion on the matter. Therefore, we conclude the submission of the erroneous instruction probably caused the rendition of an improper verdict. See Tex. R.App. P. 44.1(a).

Kennedy and Newco argue that any error in the charge on common law marriage was necessarily harmless because their motions for directed verdict on common law marriage should have been granted. That argument is addressed below.

II. Cross-Appeal: Motions for Directed Verdict

Both Kennedy and Newco moved for directed verdict on the issues of common law marriage and products liability. The trial court denied the motions and submitted the case to the jury. On cross-appeal, both defendants argue the trial court erred in failing to grant their motions for directed verdict on common law marriage because there is no evidence that Crenshaw was the common law wife of Goehring. As to liability, Newco argues the evidence conclusively established that its component hook did not fail, and that Newco was not in any way involved in the design of the integrated wire rope sling; therefore, it was entitled to a directed verdict. Kennedy argues it was entitled to a directed verdict on liability because there was no evidence that the integrated sling was defectively designed.

A. Standard of Review

A directed verdict for a defendant may be proper in two situations: (1) when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right to recover; and (2) when the plaintiff either admits or the evidence conclusively establishes a defense to the plaintiffs cause of action. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000).

We review a challenge to a trial court’s denial of a motion for directed verdict the same as we would review a challenge to the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). Under a legal sufficiency standard of review, we view the evidence in the light most favorable to the finding and indulge every reasonable inference that supports it. Id. at 822. We credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. at 827. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). More than a scintilla of evidence exists “if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

B. Common Law Marriage

To determine whether Kennedy and Newco were entitled to a directed verdict on common law marriage, we examine each required element in turn. See Tex. Fam. Code Ann. § 2.401(a)(2).

(1) Agreement to Be Married

To establish an agreement to be married, the evidence must show the parties “intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.” Eris v. Phares, 39 S.W.3d 708, 714 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). The agreement to be married may be established by direct or circumstantial evidence. Russell, 865 S.W.2d at 933. The unchallenged testimony of one of the parties to the marriage constitutes direct evidence the parties agreed to be married and amounts to more than a scintilla. Eris, 39 S.W.3d at 714 (citing Collora v. Navarro, 574 S.W.2d 65, 70 (Tex.1978)); Giessel, 734 S.W.2d at 32. The conduct of the parties as well as proof of cohabitation and representations to others may constitute circumstantial evidence of an agreement to be married depending upon the facts of the case. See Russell, 865 S.W.2d at 933; see also Eris, 39 S.W.3d at 714.

Here, Crenshaw testified that three or four months after they started dating, she and Goehring agreed that they would be married. Kennedy argues that this testimony is self-serving and uncorroborated. Although Crenshaw’s testimony was challenged by the defense, and contradicted by Goehring’s family, friends, and coworkers, who testified that they believed Crenshaw to be Goehring’s girlfriend, it is more than a scintilla of evidence of an agreement to be married. We conclude the evidence was legally sufficient to establish that Crenshaw and Goehring agreed to be married.

(2) Cohabitation

There was extensive evidence presented at trial that Crenshaw and Goehr-ing lived together for almost two years prior to his death. Goehring moved into Crenshaw’s duplex in Victoria in September 2005, and lived there until his death on June 18, 2007. Goehring worked seven days on and seven days off; on his days off, he lived at the duplex with Crenshaw. Cohabitation need not be continuous. See Bolash v. Held, 733 S.W.2d 698, 699 (Tex.App.-San Antonio 1987, no writ) (holding evidence sufficient to establish cohabitation where husband worked in Nigeria but lived with wife each time he returned to Texas). Goehring kept his possessions, including clothing, vehicles, tools, furniture, guns, dishes, fishing gear, and other personal property at the duplex. Several witnesses, including Goehring’s parents, testified that Crenshaw and Goehring were living together at the time of his death. The evidence was legally sufficient to establish that Crenshaw and Goehring lived together in Texas after they agreed to be married.

(3) Holding Out

Finally, to meet the third element of common law marriage, the parties must have represented to others in Texas that they were married. Winfield, 821 S.W.2d at 648. The statutory requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” Id.; Giessel, 734 S.W.2d at 30. Holding out may be proven by evidence of the conduct and actions of the parties. Eris, 39 S.W.3d at 715; Giessel, 734 S.W.2d at 31. “Spoken words are not necessary to establish representation as husband and wife.” Winfield, 821 S.W.2d at 648.

Here, Crenshaw and two witnesses testified regarding the element of holding out. Sara Pagil, Crenshaw’s close friend, frequently stayed at the duplex and testified that the couple often referred to each other as “husband and wife,” and Pagil considered them to be married. When people would ask where Goehring was, Crenshaw would answer, “Oh [,] my husband is over there.” Pagil remembered one occasion when Crenshaw told Goehring to get out of the kitchen so she could cook dinner, and Goehring replied, “Man [,] my wife is mean.”

Monty Hoffman, who lived across the street from the couple, testified that Cren-shaw regularly referred to Goehring as her “husband” and he thought the couple was married. On one occasion, Goehring confronted him about a barbeque pit Hoffman had borrowed from Crenshaw without permission. Goehring told him, “Jamie [Crenshaw] is my wife and, whatever is hers is mine.”

Crenshaw herself testified that once they decided to be married, she and Goehring both represented to others that they were husband and wife. Before making plans with others, Crenshaw would say, “I would have to speak with my husband.” Likewise, Goehring would say, “he would have to speak to his wife,” or that he would “need to get it approved with his wife first.” Crenshaw also referred to a specific occasion in December 2005 or January 2006 when she and Goehring told his friends, John and Randy Becker, that they were married.

John Becker, however, refuted that statement, and testified there was no doubt in his mind that Crenshaw and Goehring were not married. In fact, all of the defense witnesses, including Goehr-ing’s family, friends, and coworkers, testified that Crenshaw and Goehring did not hold themselves out as husband and wife. Additionally, Pagil testified that Crenshaw told her that she and Goehring planned to get married. Kennedy and Newco assert that such a statement negates the existence of a present informal marriage, because a couple cannot presently be married and also plan to marry in the future. Kennedy and Newco argue there is no evidence to show that Goehring believed he was married to Crenshaw, and that the couple’s isolated references to each other as “husband” and “wife” were insufficient as a matter of law to establish that they held themselves out as married. See Threet, 383 S.W.2d at 364.

Crenshaw responds that even if the references were isolated, they were corroborated by the uncontroverted evidence that they agreed to be married and the overwhelming evidence of cohabitation. See Russell, 865 S.W.2d at 932-33; see also Claveria, 615 S.W.2d at 166. Considering the evidence in the light most favorable to Crenshaw, we conclude that reasonable and fair-minded people could differ in their determinations as to whether Crenshaw and Goehring held themselves out as husband and wife. See City of Keller, 168 S.W.3d at 827-28. There is certainly more than a scintilla of evidence — based on the testimony of Pagil, Hoffman, and Crenshaw — that the couple represented to others that they were married. Accordingly, we hold the trial court did not err in denying the defendants’ motions for directed verdict, and correctly submitted the issue of common law marriage to the jury.

C. Products Liability

To recover on her products liability claim alleging the integrated wire rope sling was defectively designed, Crenshaw had to prove that:

(1) the product was defectively designed so as to be unreasonably dangerous, taking into consideration the utility of the product and the risk involved in its use;
(2) there was a safer alternative design; and
(3) the defect was a producing cause of the injury or death in question.

Tex. Civ. Prac. & Rem.Code Ann. § 82.005(a) (Vernon 2005); Hernandez v. Tokai Corp., 2 S.W.3d 251, 256-57 (Tex.1999). Kennedy and Newco moved for directed verdict on the issue of liability, alleging that Cren-shaw failed to present more than a scintilla of probative evidence on the first element of her claim for a defectively designed product. We address each motion for directed verdict in turn.

(1) Newco’s Motion

Newco moved for directed verdict on the basis that the evidence conclusively established that its component hook did not fail, and that it was not in any way involved in the design of the integrated wire rope sling. Newco argues that, as a component-part manufacturer who did not participate in the integration of the hook into the sling, it is not liable for any defects in the sling if the hook itself was not defective. See Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 683 (Tex.2004) (“if the component-part manufacturer does not participate in the integration of the component into the finished product, it is not liable for defects in the final product if the component itself is not defective.”); Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 504 (Tex.App.-San Antonio 2004, pet. denied) (component part manufacturer that supplies a product according to purchaser’s specifications is free from liability if component itself is not .defective). Crenshaw contends there was sufficient evidence to establish that Newco’s hook was defectively designed, or at least to raise a fact issue on the matter. Crenshaw relies on the testimony of Erica Ryles, Newco’s manager, and the testimony of an expert witness Randy McClay, a petroleum engineering expert.

In determining whether the record contains any probative evidence to raise a fact issue on whether the hook itself was defective, we must look closely at the trial testimony cited by Crenshaw, viewing it in the light most favorable to her as the non-movant. Bostrom, 140 S.W.3d at 684 (citing Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001)). The relevant portion of Ryles’ testimony is set forth below:

Q. And would you agree that ifs [sic] it is possible to use a safety latch on a hook that it should be used on a hook.
A. Yes.
Q. All right I mean it makes common sense to — that increases the safety of the hook doesn’t it?
A. Yes, it does.
Q. Uh now you — Newco realizes that this hook without a latch is still going to be used in slings that lift objects over people’s heads.
A. We can assume that that’s what they are going to be used for, we don’t know.
Q. You don’t know but you want — you can assume it’s going to happen and so as the manufacturer you need to plan for that.
A. Correct.
Q And the way you plan for that is to make it safe as possible.
A. Yes.
Q. And for it to be safe as possible when its’s lifting loads over people’s heads, it needs to have a safety latch on it doesn’t it.
A. Uh, yeah.
A. And it doesn’t, does it?
A. No it does not.
Q And you as Newco have known that you knew it before you ever sold it.
A. That’s correct.
Q That in order to truly be safe it needed to have a safety latch on it.
A. Yes.
Q And you didn’t do it.
A. Yeah.
Q. And when this hook without a safety latch is used on a cable as an assembly without a safety latch, you wouldn’t recommend that this cable and assembly be used for work overhead would you?
A. No
Q. And that makes this whole thing defective doesn’t it?
A. I don’t know if it does or doesn’t
Q. Well it’s unreasonably dangerous isn’t it because—
A. If slack becomes in the line, yes.
Q. And it could be — and it is unreasonably dangerous if slack gets in the line because it doesn’t have a safety latch.
A. That correct.
Q. And if that’s the definition the jury answers — is asked ábout defective, that makes that whole thing defective doesn’t it?
A. I would assume so.

Crenshaw argues that Ryles’ testimony set forth above conclusively established that the Newco hook by itself was defectively designed. We disagree. Reading Ryles’ testimony as a whole and in context shows that she was stating that the whole assembled product (“this cable and assembly”), ie., the braided wire rope sling with the Newco hook attached, was unreasonably dangerous for lifting loads overhead if slack got in the line. Ryles testified the Newco hook used by Kennedy was not equipped with a safety latch, and that a hook with a safety latch should have been used for lifting loads over people’s heads in order for the whole integrated product (sling with the hook attached) to be as safe as possible. Ryles stated she would not recommend using the Newco hook without a safety latch “on a cable as an assembly” for work overhead. She further stated that “this whole thing” can be unreasonably dangerous if slack gets in the line. We read Ryles’ testimony that the “whole thing” was defective under certain conditions, Le., slack in the line, as referring to the whole integrated product, not the Newco hook by itself. In addition, Ryles testified that Newco does sell the same size hook with a safety latch for use with a single wire rope, but not for use with the braided wire rope used by Kennedy. Finally, Ryles testified that one of Newco’s competitors, Crosby, sells a hook equipped with a safety latch for use with braided wire rope.

In addition, Crenshaw relies on McClay’s expert testimony explaining that because the Newco hook lacked a safety latch, the sling incorporating the hook was unreasonably dangerous when used with braided wire cable to lift loads overhead. Crenshaw maintains this evidence is sufficient to raise a fact issue on the first element of her design defect claim against Newco. However, McClay also testified that the Newco hook did not break or otherwise fail, and that the most likely cause of the accident was slack in the sling line which caused the thimble to come out of the hook and the load to release. Specifically, when questioned about the Newco hook component, McClay testified in relevant part:

Q. Do you have an opinion whether or not the Newco number 3 sliding choker hook that was installed on exhibit number 8 at the time of the accident, without a safety latch, was an appropriate piece of equipment for the job that was being done?
A. I believe it was totally inappropriate for that particular job. [Expert testified about design defects and definition of “design defect,” and “safer alternative design.”]
Q. Do you have an opinion whether or not per that definition, the — there was a design defect, uh, in the Newco number 3 choker hook that was a producing cause of the occurrence in question?
A. Yes, sir.
Q. And what is that opinion?
A. I believe that there was a better design, a safer design of that particular sling, uh, we’ve heard testimony and I agreed with the testimony that if the hook had had a latch you would have prevented the slack condition from allowing it to come unhooked and I believe that is what caused this accident.

Again, reading McClay’s testimony in context it is apparent that he was referring to the defective design of “that particular sling,” the integrated product, not to the Newco hook by itself. Indeed, McClay testified that the hook itself was not per se defective, and did not fail. Further, McClay did not opine that the integrated wire rope sling was defectively designed for all purposes, but rather “was totally inappropriate for that particular job.” McClay stressed that “there was a better design, a safer design of that particular sling,” and that the integrated sling was misused in an inappropriate application. McClay conceded, however, that both the hook and sling were appropriate for certain applications. As noted in Bostrom, a component part which is not itself defective and is appropriate for certain other applications does not become “defective” simply because it was used in an inappropriate application. Id. at 683-84 (component seat which was not itself defective, and which “in another application, not the one on this vehicle, could work and perform under many conditions well,” was not defective as integrated into vehicle restraint system where manufacturer had no control over design of restraint system).

Viewing the above-quoted testimony in the light most favorable to Crenshaw, we do not agree that the testimony of Ryles and McClay raised a fact issue as to whether the Newco hook was defective in and of itself. Rather, both witnesses testified that the hook, as integrated into the wire rope sling by Kennedy, was part of a defectively designed “assembly,” ie., the integrated product as a whole. As in Bos-trom, Kennedy chose which hook it would use and integrated it into the design of the braided wire rope sling — Kennedy was “in total control” of the design of the sling, and Newco played no role in designing the sling. See id. at 684-85. We read Ryles’ and McClay’s testimony much like Newco does, meaning that both witnesses testified the issue was more one of misuse or inappropriate application of the hook than defective design of the hook itself. We conclude there is no evidence that the hook itself was defective, or that Newco participated in the integration of the hook into the final product; therefore, as a component-part manufacturer, it is not liable for any design defects in the wire rope sling. See id. at 683.

Because the evidence does not raise a fact issue as to whether the Newco hook was itself defective, and because there is no evidence that Newco participated in the integration of the hook into the final product, we hold that Newco cannot be held liable for the alleged defective design of the sling. See id. at 684. We therefore sustain Newco’s complaint regarding its motion for directed verdict on liability, and render a take-nothing judgment in favor of Newco.

(2) Kennedy’s Motion

Kennedy asserts the trial court erred in denying its motion for directed verdict because there was no evidence that its integrated wire rope sling was defectively designed so as to be unreasonably dangerous, taking into consideration the utility of the product and the risk involved in its use. See Hernandez, 2 S.W.3d at 257. Specifically, Kennedy maintains the evidence failed to raise a fact issue on the following five risk-utility factors that are used to determine whether the defective design of a product rendered it unreasonably dangerous:

(1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoida-bility because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer.

Hernandez, 2 S.W.3d at 256 (citing American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex.1997)). We conduct the risk-utility analysis within the context of the product’s intended use and its intended users. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 312 (Tex.2009).

Crenshaw responds that the evidence was sufficient to raise a fact issue as to whether Kennedy defectively designed an integrated wire rope sling that was unreasonably dangerous. See Tex. Civ. Prac. & Rem.Code Ann. § 82.001(4) (Vernon 2005) (defining a “manufacturer” as anyone who designs or assembles a product or any component part thereof and places the product or component part into the stream of commerce); see also MCI Sales & Serv., Inc. v. Hinton, 272 S.W.3d 17, 31 (Tex.App.-Waco 2008, pet. granted) (“[a] design defect renders a product unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.”). Specifically, Crenshaw contends the testimony of Ryles and McClay, summarized above, as. well as the testimony of Warren Hubler, H & P’s Vice President for Health Safety Environment, and Garland Kennedy, Vice President and co-owner of Kennedy Wire Rope & Sling, raises a fact issue on each of the five risk-utility factors. We briefly summarize the testimony of Hubler and Kennedy.

Warren Hubler testified that, due to H & P’s prior experience with failed chain slings, he contacted Kennedy about alternatives. He trusted Kennedy’s expertise and advice with regard to slings, wire rope, and equipment selection. Hubler stated that H & P looked to Kennedy for “reputable instruction on what to watch out for and how to operate our rig safely with regard to slings, rigging, and wire rope.”

Garland Kennedy testified that his company publicly represents that it has experience in heavy lifting, and offers consulting services on the use and safety of wire rope slings. He stated that matching the sling to the particular job is “critical” in terms of safety, because if the wrong piece of equipment is provided accidents can occur. Kennedy stated he is familiar with H & P’s operations, having' done business with them for 27 years. Kennedy agreed that Hubler and H & P approached his company about their problem with broken slings and dropped objects, and sought Kennedy’s advice on the “ultimate safest way” to do the job. In response, Kennedy analyzed H & P’s lifting procedures and conducted a variety of tests. Based on Kennedy’s advice, H & P decided to purchase a braided wire rope sling equipped with the Newco sliding choker hook.

We agree with Crenshaw that there was more than a scintilla of evidence sufficient to raise a fact issue on each of the risk-utility factors. The evidence established that the particular design of the braided wire rope sling with a Newco hook was chosen by Kennedy. Before recommending the “improved” sling product to H & P, Kennedy made the decision to use braided wire rope, rather than single wire rope, and then chose the Newco number 3 choker hook for assembly with the braided rope, knowing it did not have a safety latch. Ryles testified that not only does Newco sell a similar hook with a safety latch, although only for use with single wire rope, but a competitor, Crosby, also sells a hook with a safety latch that can be used with braided wire rope. In addition, Ryles testified that the sling should have incorporated a hook with a safety latch in order for the whole product to be as safe as possible for lifting overhead loads — in case slack got in the line. McClay testified that the hook without a safety latch was “inappropriate for that particular job;” specifically, McClay stated that, although the hook itself was not defective and did not fail, the sling design incorporating a hook without a safety latch allowed the load to come unhooked when slack got in the line, causing the accident. In addition, there is evidence that Kennedy had the ability to make the integrated sling product safer for lifting overhead loads without impairing its usefulness or significantly increasing costs. Further, the testimony of Hubler and Garland Kennedy shows that Kennedy was well aware of H & P’s prior problems with chain slings that broke or failed and its need for a safer sling for use on it rigs, and yet recommended a sling that incorporated a hook without a safety latch. Hubler testified he would have liked to know about the option of using a hook with a safety latch, and that the additional cost would not have been an issue. Kennedy testified that incorporating a choker hook with a safety latch was feasible and would not have reduced the sling’s utility.

Considering the evidence in the light most favorable to Crenshaw, we conclude that reasonable minds could differ on consideration of the five risk-utility factors, and thus the matter cannot be determined as a matter of law. See Timpte, 286 S.W.3d at 312 (issue of whether a product is defectively designed is generally a question of fact for the jury, although it may be determined as a matter of law in an appropriate case); Hernandez, 2 S.W.3d at 260-61 (determination of whether product is unreasonably dangerous as designed may be a legal question if reasonable minds cannot differ on the risk-utility analysis). Because the issue of a design defect was a question of fact for the jury in this case, we hold the trial court did not err in denying Kennedy’s motion for directed verdict on liability, ánd in submitting the issue to the jury.

Conclusion

Based on the foregoing analysis, we conclude the challenged portion of the jury instruction on common law marriage was a direct comment on the weight of the evidence. The erroneous instruction was harmful to Crenshaw because it instructed the jury that a certain category of evidence on a contested, critical element of common law marriage was inadequate, and therefore suggested the trial judge’s opinion and nudged the jury toward a defensive theory. However, because we conclude that Newco was entitled to a directed verdict on the issue of liability, we affirm the take-nothing judgment entered by the trial court in favor of Newco. By contrast, we do not conclude that Kennedy was entitled to a directed verdict on the issues of common law marriage or liability. Accordingly, we reverse the remaining portion of the trial court’s judgment as to Kennedy and remand the cause of action as to Kennedy to the trial court for further proceedings.

      . Kennedy argues Crenshaw failed to preserve her jury charge complaints for appellate review. We disagree. Crenshaw made the trial court aware of her complaints by objecting to the challenged language as a direct comment on the weight of the evidence, an incorrect statement of the law, and an improper embellishment that was inconsistent with the pattern jury charge; she also requested a proposed instruction that tracked the statute and pattern jury charge. Accordingly, Crenshaw preserved error. See Tex.R. Civ. P. 278; Tex.R.App. P. 33.1(a); see also State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992); Green Tree Fin. Corp. v. Garcia, 988 S.W.2d 776, 780-81 (Tex.App.San Antonio 1999, no pet.).

      . We need not determine whether the challenged language was in fact a correct statement of the law.

      . Kennedy concedes that the evidence established the second of the five risk — utility factors — the existence of an alternative hook design which would not be unsafe or unreasonably expensive.