author: BEA ANN SMITH, Justice.

text:
    Helen F. CASTELLOW, Appellant, v. SWIFTEX MANUFACTURING CORPORATION, Individually and d/b/a Swiftex, Inc., Appellee.
    No. 03-00-00287-CV.
    Court of Appeals of Texas, Austin.
    Dec. 7, 2000.
    Rehearing Overruled Jan. 19, 2001.

      Derek L. Davis, Byrd, Davis, & Eisen-berg, L.L.P., Austin, for appellant.
    Jeffrey A. Hagleman, Martin & Associates, P.C., Austin, for appellee.
    Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PATTERSON.
   BEA ANN SMITH, Justice.

Appellant Helen F. Castellow sued her employer, appellee Swiftex Manufacturing Corporation (Swiftex), for negligence that proximately caused injuries she incurred in the course of her employment. Swiftex is not a subscriber to workers’ compensation insurance but offers a private benefit plan that requires an employee to waive her common-law remedies for the employer’s negligence in causing on-the-job injuries. The trial court granted Swiftex’s motion for summary judgment which asserted waiver, ratification, and estoppel. The sole issue appellant raises on appeal is whether the waiver Castellow signed is unenforceable because it violates public policy. We hold that the waiver thwarts the intent of the legislature embodied in the statutory workers’ compensation scheme and reverse the trial court’s summary judgment in favor of Swiftex.

FACTS AND PROCEDURAL HISTORY

Castellow was hired in January 1998. Swiftex did not subscribe to workers’ compensation insurance but instead offered its own “Employee Safety Program Benefit Plan” (the Plan). The parties stipulate that participation in the Plan was voluntary but required a waiver of all common-law remedies against Swiftex for on-the-job injuries. Castellow elected to participate in the Plan and signed the waiver, relinquishing her right to sue Swiftex or its employees for injuries or death sustained in the course of her employment that resulted from the sole or concurrent negligence of Swiftex. The waiver provided in bold language, “My only remedy will be to receive benefits under the Plan.”

In February 1999, Castellow was injured after tripping over a cord in her work area, which she described as “small and cramped.” Castellow made a claim and received medical and wage replacement benefits under the Plan. She has never paid back any of these benefits.

Ignoring the terms of the waiver, Cas-tellow filed this suit in June 1999 alleging that Swiftex’s negligence in failing to provide a safe work environment proximately caused her injuries. In September, Swif-tex filed a motion for summary judgment asserting that Castellow’s claims were barred because she had agreed to waive her claims by voluntarily electing to participate in the Plan; that she ratified the waiver by accepting and not returning, or offering to return, the benefits she received; and that she is estopped from adopting an inconsistent position by suing Swiftex.

Castellow did not file a response or appear at the summary-judgment hearing. The trial court granted Swiftex’s motion on November 3, 1999, without stating its grounds. Castellow filed a response to the motion for summary judgment on December 16. On January 6, 2000, Castellow appealed the court’s granting summary judgment, and on January 24, she filed a motion for new trial.

DISCUSSION

Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.—Austin 1999, no pet.). The standards for review of a summary judgment are well-established:

(1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and

(3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Swiftex has the burden of showing that Castellow could not succeed on any theory pleaded. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.App.—San Antonio 1996, no writ). When the trial court’s summary judgment does not specify the grounds relied upon, we must affirm the court’s judgment if any of the summary-judgment grounds is meritorious. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999).

Castellow’s sole challenge to the summary judgment in Swiftex’s favor is her assertion that the waiver she signed is unenforceable because its terms are contrary to public policy. Whether an agreement violates public policy is a question of law, which we review de novo. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 726 (Tex.App.—San Antonio 1999, pet. denied). Castellow concedes that if the waiver is not contrary to public policy, it is otherwise enforceable.

Preservation of Error

Swiftex argues that Castellow failed to preserve error in two ways: first, by failing to appeal all three points on which the summary judgment could have been based; and second, by not presenting the issue on appeal to the trial court prior to its ruling on the motion for summary judgment.

Swiftex maintains that the summary-judgment must be affirmed because Cas-tellow failed to attack every possible ground upon which the trial court based its summary judgment and she did not assert a general assignment of error in granting the summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). General assignment of error, or specific attack on each ground on which the summary judgment was possibly based, is not necessary here because disposition of the public policy issue necessarily disposes of the entire case. If the waiver contravenes public policy and is unenforceable, then Swiftex’s ratification and estop-pel arguments fail. See Peniche v. Aeromexico, 580 S.W.2d 152, 157 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ) (“It is well settled that an illegal contract cannot be ratified or saved by estoppel.”). If the waiver is enforceable, then Castel-low concedes that waiver, estoppel, and ratification will defeat her cause of action. See Reyes, 995 S.W.2d at 726. Castellow clearly states her issue on appeal and concisely argues that the waiver is unenforceable as a matter of public policy. This is sufficient to preserve this issue for our review. See id. at 725.

Next, Swiftex argues that Castel-low failed to present to the trial court, in writing, her contention that the waiver is unenforceable prior to the hearing on Swif-tex’s motion for summary judgment. The non-movant must expressly present to the trial court, by written answer or response to the motion, those issues that would defeat the movant’s right to a summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979). If the non-movant fails to do so, she may not later assign those issues as error on appeal. Id. “[B]oth the reasons for the summary judgment and the objections to it must be in writing before the trial judge at the hearing.” Id. at 677. The exception to this rule is when “the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment.” Id. at 678.

In her motion for new trial, Castellow asserted that, as a matter of law, the waiver she signed is unenforceable because it offends public policy. Her motion for new trial was overruled by operation of law. See Tex.R.Civ.P. 329b(b). She was not required to file an answer to the motion for summary judgment to preserve her contention that the grounds for summary judgment are insufficient as a matter of law. See Guzman v. Carnevale, 964 S.W.2d 311, 314 (Tex.App.—Corpus Christi 1998, no pet.).

Enforceability of the Waiver

Castellow asserts that the waiver undermines the purpose and structure of the Workers’ Compensation Act and is therefore contrary to public policy. See Tex.Lab.Code Ann. §§ 401.001-418.002 (West 1996 & Supp.2000). She states that because Swiftex’s Plan provides fewer benefits to the injured worker while granting the employer greater immunity from liability than the Act, the waiver provision should be held unenforceable as against public policy. Swiftex, on the other hand, maintains that the waiver is “purely a matter of contract and the rights and obligations are to be measured by the contract.”

A court can declare a contract void as against public policy and refuse to enforce it. Williams v. Patton, 821 S.W.2d 141, 147-48 & n. 11 (Tex.1991) (Doggett, J., concurring) (citing cases in which courts found contracts to be void as contrary to public policy). Agreements exempting a party from future liability for negligence are generally recognized as valid except where, because of the relationship of the parties, the exculpatory provision is contrary to public policy or the public interest. Crowell v. Housing Auth., 495 S.W.2d 887, 889 (Tex.1973) (“It is generally held, for example, that a contract exempting an employer from all liability for negligent injury of his employees in the course of their employment is void as against public policy.”). The State’s public policy is expressed through its statutes. See National County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 8 (Tex.1993). We begin our analysis by noting that we must liberally construe the workers’ compensation statute in favor of the injured worker. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000).

Prior to 1913, when the first workers’ compensation legislation was enacted in Texas, employees injured on the job were often denied recovery. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 510 (Tex.1995). Employees found that negligence was difficult to prove and that employers enjoyed complete defenses in the common-law doctrines of contributory negligence, assumption of the risk, and negligence by a fellow employee. Id. The first Workers’ Compensation Act replaced the common-law negligence remedy with limited, but more certain, benefits for injured workers. Id. at 510-11. Employees could recover reduced benefits without proving fault by their employers or facing common-law defenses. Id. at 511. “In exchange, the employer’s total liability for an injury was substantially limited.” Id. Employers could opt out of the system but were discouraged from doing so, as the Act abolished all traditional common-law defenses for nonsubscribers. Id. Employees of nonsubscribers retained their common-law rights. Id. Although portions of the Act have been amended, this quid pro quo scheme has remained unchanged since 1913. Id.

The core concept of the Act is the assurance that injured employees either have access to the courts to seek redress for wrongs or receive adequate substitute remedies. See id. at 520-21. The Texas Constitution provides an “open courts” guarantee: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const, art. I, § 13. Legislative action that withdraws common-law remedies for well-established, common-law causes of action satisfies the constitutional open-courts guarantee only when it is reasonable in substituting other remedies. Garcia, 893 S.W.2d at 520; see also Sax v. Votteler, 648 S.W.2d 661, 667 (Tex.1983). The quid pro quo established in the Workers’ Compensation Act provides an adequate substitute by giving injured employees a satisfactory and certain, although limited, recovery. Garcia, 893 S.W.2d at 521. Even certain benefits, however, can be so inadequate as to run afoul of the open-courts doctrine. Id. The supreme court held that the benefits provided by the Act — including full lifetime medical coverage, temporary benefits replacing a substantial part of lost wages during convalescence, impairment benefits, and long-term wage replacement for those with at least moderately severe impairments — satisfied the open-courts guarantee. Id.

The Act was enacted primarily for the benefit and protection of employees. Hazelwood v. Mandrell Indus. Co., 596 S.W.2d 204, 206 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.) (citing Woolsey v. Panhandle Ref. Co., 131 Tex. 449, 116 S.W.2d 675 (1938)). Although the Act allows employers to opt out, employees of nonsubscribers remain protected because the Act abolishes all common-law defenses available to these nonsubscribing employers. See Garcia, 893 S.W.2d at 511. Indeed, a voluntary waiver in which the nonsubscribing employer limits its own liability and yet retains its common-law defenses has been held void as against public policy. Hazelwood, 596 S.W.2d at 206.

Swiftex maintains that the waiver executed by Castellow, accepting benefits under its Plan in place of her common-law remedies, is not against public policy. Generally, voluntary workers’ compensation is a matter of contract. Reyes, 995 S.W.2d at 727. Contracts executed after an injury occurs that liquidate claims and limit the employers’ liability have been held not contrary to public policy. Memorial Med. Ctr. v. Keszler, 943 S.W.2d 433, 435 (Tex.1997); Martinez v. IBP, Inc., 961 S.W.2d 678, 684 (Tex.App.—Amarillo 1998, pet. denied); Tigrett v. Heritage Bldg. Co., 533 S.W.2d 65, 70 (Tex.Civ.App.—Texarkana 1976, writ ref'd n.r.e.). Similarly, contracts that measured recovery for industrial injuries according to the measure of benefits provided by the Workers’ Compensation Act have been held valid and enforceable. Tigrett, 533 S.W.2d at 70; Employers Mut. Cas. Co. v. Poorman, 428 S.W.2d 698, 700-01 (Tex.Civ.App.—San Antonio 1968, writ ref'd n.r.e.); United States Fid. & Guar. Co. v. Valdez, 390 S.W.2d 485, 489 (Tex.Civ.App.—Houston 1965, writ ref'd n.r.e.).

Conversely, voluntary workers’ compensation contracts have been held void as against public policy when they reduced either statutory or common-law rights of employees. In 1916, the supreme court found a contract in which the employee expressly assumed the risk of injury “so abhorrent that it is held to be in violation of public policy and void.” Barnhart v. Kansas City, M. & O. Ry. Co. of Tex., 107 Tex. 638, 184 S.W. 176, 179 (1916) (holding that transferring by contract the burden which rested in law on the employer to the “shoulders of its employee” was unjust). A contract in which the employer retained its common-law defenses was held invalid as against public policy in Hazelwood. Hazelwood, 596 S.W.2d at 206. Finally, a contract in which the employee waived not only negligence claims, but intentional and gross negligence claims that are retained under the Workers’ Compensation Act, was held in violation of public policy and therefore, void and unenforceable. Reyes, 995 S.W.2d at 729.

For support, Swiftex cites several cases in which the courts have held that waivers associated with voluntary benefit plans were valid and enforceable contracts. See Wolfe v.C.S.P.H., Inc., 24 S.W.3d 641, 645 (Tex.App.—Dallas 2000, no pet.); Lawrence v. CDB Servs., Inc., 16 S.W.3d 35, 44 (Tex.App.—Amarillo 2000, pet. granted); Lambert v. Affiliated Foods, Inc., 20 S.W.3d 1, 6 (Tex.App.—Amarillo 1999, pet. granted). In Lawrence, the seventh court of appeals first looked to contract law to hold that agreements releasing a party from responsibility for future acts of negligence “have long been part of otherwise valid contracts in Texas,” and that such waivers “are not in and of themselves in violation of public policy.” Lawrence, 16 S.W.3d at 41. That court then turned to the Workers’ Compensation Act to note that “in plain language” the legislature described its intent that “an employee can waive specified common law rights in exchange for some level of fixed benefits to be provided without regard to fault in the event of an injury on the job.” Id. at 42. The court emphasized that this policy “has remained continuously manifested in the express language of the Act.” Id.

It is no surprise that this quid pro quo policy has remained unchanged over time, because the Act would be unconstitutional if it did not substitute an adequate remedy for the employee’s common-law right to sue her employer. See Garcia, 893 S.W.2d at 521. The fairness of this trade-off was precisely the issue addressed by the supreme court when it considered the open-courts challenge to the revised workers’ compensation scheme in Garcia. Id. Should this delicate balance be disturbed by depriving the employee of the right to sue for gross negligence, for example, the open-courts guarantee would likely be violated. See Reyes, 995 S.W.2d at 729.

We agree with the Lawrence court that the quid pro quo expressed in the Act represents the public policy intended by the legislature. We disagree that employers may, by contract, establish their own private quid pro quo policy and ignore the carefully constructed benefit level approved by the legislature. Contracts that afford to the employee fewer benefits than the statutory scheme, or require giving up more substantial legal remedies than the Act, run the danger of contravening public policy and violating the employee’s open-court rights.

Swiftex contends that the Act prevents nonsubscribing employers from asserting certain common-law defenses, and waiver is not listed among them. See Tex.Lab. Code Ann. § 406.033 (West 1996). The pertinent sections of the Act are as follows:

(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).
(c) The employer may defend the action on the ground that the injury was caused:
(1) by an act of the employee intended to bring about the injury; or
(2) while the employee was in a state of intoxication.

Id.

The cardinal rule of statutory construction is to ascertain and follow the legislature’s intent. Citizens Bank v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex.1979). We ascertain that intent by initially looking at the language used in the statute. Jones v. Del Andersen & Assocs., 539 S.W.2d 348, 350 (Tex.1976). The words in the statute should be interpreted according to their ordinary meaning; they are not to be interpreted in an exaggerated, forced, or strained manner. Howell v. Mauzy, 899 S.W.2d 690, 704 (Tex.App.—Austin 1994, writ denied). We need not analyze extrinsic evidence of legislative intent if the intent is apparent from the language of the statute. Minton v. Frank, 545 S.W.2d 442, 445 (Tex.1976). The goal of statutory construction is to give effect to the intent of the legislature. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994). If language in a statute is unambiguous, this Court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used. Id.

We presume that a statute passed by the legislature is constitutional. HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex.1994). If possible, we must construe statutes to avoid constitutional infirmities. See Texas State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex.1970). Finally, we must reject interpretations of á statute that defeat the purpose of the legislation so long as another reasonable interpretation exists. See Citizens Bank, 580 S.W.2d at 348.

Swiftex relies on the seventh court of appeals’ reasoning that section 406.003(a) provides evidence that the legislature did not intend to deprive employers of the defense of waiver. See Lawrence, 16 S.W.3d at 42-43. Swiftex argues that if we hold this waiver void, we will be judicially creating a fourth prohibited defense under section 406.033(a). See Tex.Lab. Code Ann. § 406.033(a); Lambert, 20 S.W.3d at 6. “[E]ven though waiver is also a common law defense, it is not included in the list of prohibited defenses to a common law action for personal injuries brought by an employee.” Lambert, 20 S.W.3d at 6 (citation omitted). The court stated that because holding the waiver void on public policy grounds “would constitute a judicial creation of subsection (4) ... we are constrained to refrain from invading the legislative field.” Id.

The seventh court of appeals noted that section 406.035 provides that an agreement by an employee to waive the right to compensation is void. Lawrence, 16 S.W.3d at 43; see also Tex.Lab.Code Ann. § 406.035 (West 1996). Consequently, the court reasoned, when the legislature deems certain contractual provisions void, it knows how to prohibit them. Because the language of section 406.033 does not prohibit an employer from relying on a contractual waiver, the Amarillo court declined to hold such a waiver void as against public policy. Lawrence, 16 S.W.3d at 43-44. With all due respect, we read the statute differently.

The supreme court explained that section 406.033(c) identifies the two defenses upon which employers may rely: that the employee intended to bring about the injury, or the injury occurred while the employee was intoxicated. Tex.Lab.Code Ann. § 406.033(c); Kroger, 23 S.W.3d at 350. Section 406.033(c) does not include a third defense, that the employee signed a contract agreeing to waive all common-law remedies and to accept benefits under a voluntary plan as a sole remedy for a job-related injury.

The term “waiver” is simply not found in section 406.033, either as a prohibited defense or as a permitted defense. We need not read it into the statute in either subsection to determine if the waiver at issue here is void because it violates public policy. The structure of section 406.033, nonetheless, provides insight to the important legislative intent of delineating “explicitly the structure of an employee’s personal-injury action against his or her nonsub-scribing employer.” Kroger, 23 S.W.3d at 350-51.

In Kroger, the supreme court determined whether section 406.033(a) prohibited the common-law defense of comparative responsibility even though it was not included in the list of prohibited defenses. The court explained that the legislature intended to encourage employers to obtain workers’ compensation insurance; therefore, it enacted section 406.033 as a “penalty provision” that penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees’ personal-injury actions. Id. at 350.

Comparative responsibility also is not listed in section 406.033(c) as an available defense. Id.; cf. Tex.Lab.Code Ann. § 406.033(c). The supreme court refused to add it to subsection (c) stating, “[t]o construe section 406.033 [as adding comparative responsibility as an available defense] would be to supply by implication restrictions on an employee’s rights that are not found in section 406.033’s plain language.” Kroger, 23 S.W.3d at 351. The supreme court held that an employer could not assert comparative responsibility as a defense, noting that measuring comparative responsibility necessitates a preliminary finding that the plaintiff was contrib-utorily negligent. Id. The court stated, “[B]y precluding contributory negligence as a defense the Legislature intended that an employee’s fault would neither defeat nor diminish his or her recovery.... That is the penalty employers pay for opting not to subscribe to workers’ compensation insurance.” Id. at 352 (citation omitted).

Similarly, we cannot by implication read waiver into section 406.003 as a defense that is available to employers. Because we must not construe the statute in a way that would render it unconstitutional, we refuse to read section 406.033 as holding that every waiver associated with every private benefit plan is a defense available to employers sued for negligence. See Citizens Bank, 580 S.W.2d at 348. To construe the statute to permit a waiver that reduces the benefits of an employee or increases the employer’s immunity would upset the delicate trade-off that has been held constitutional in the face of the open-courts challenge to the workers’ compensation scheme. See Garcia, 893 S.W.2d at 520-21. Further, such a reading would undermine the purpose of section 406.033 — to penalize employers who opt out of subscribing to workers’ compensation insurance. See Kroger, 23 S.W.3d at 349.

The public interest in protecting employees, as embodied in the Act, requires that voluntary contracts, such as the one here, be in accord with the intent of the legislature as reflected in the Act. See Hazelwood, 596 S.W.2d at 206. Cas-tellow maintains that the Plan offers fewer benefits than those provided by the Act. Castellow also contends that the waiver she signed provides Swiftex more immunity from liability than that granted by the Act. We must compare the provisions of the Plan with similar provisions in the Act to determine whether the waiver violates public policy. See Reyes, 995 S.W.2d at 728.

The Workers’ Compensation Act provides medical benefits for health care that cures or relieves the injured employee of the effects of the injury, that promotes recovery, or that enhances the ability of the employee to return to or retain employment. Tex.Lab.Code Ann. § 408.021(a) (West 1996). Under Swiftex’s Plan, medical benefits terminate at the point — which the Plan refers to as “maximum rehabilitative capacity” — when Swif-tex’s designated physician determines the injured employee will not improve substantially as a result of additional medical treatment or physical therapy.

The Act provides wage replacement during convalescence based on seventy percent of the difference between the claimant’s average weekly wage and the post-injury weekly earnings until the date of maximum medical improvement. Tex. Lab.Code Ann. §§ 408.102(a), .103(a)(1) (West 1996). Swiftex’s Plan provides wage replacement according to the following formulas: for the first week, eighty-five percent x average hours x average wage; thereafter, seventy-five percent of the average hourly wage. The benefits terminate when the employee reaches maximum rehabilitative capacity, when the treating physician releases the employee to return to either &11 or part-time work, either regular or modified duty, or when the Plan administrator determines that the benefits should be terminated in accordance with the Plan. The Act also provides impairment income, supplemental income, and lifetime income benefits. Tex.Lab.Code Ann. §§ 408.121, .142 (West 1996) & § 408.161 (West Supp.2000). The Plan offers no comparable benefits.

The Act allows “recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.” Tex.Lab. Code Ann. § 408.001(b) (West 1996). The Plan, conversely, prohibits death claims caused by gross negligence. The fact that this provision does not apply to Castellow is not determinative of whether the waiver is unenforceable. See Hazelwood, 596 S.W.2d at 206. “In considering whether a contract is contrary to public policy, the test is whether the tendency of the agreement is injurious to the public good, not whether its application in a particular case results in actual injury.” Id. Here, we consider that the Act provides injured employees access to the courts when death results from an intentional act or gross negligence, whereas the Plan precludes all claims of gross negligence.

When the balance developed by the legislature is “tipped so that the employee’s benefits under the statute are substantially reduced, the clear intent of the legislature is thwarted.” See id.; accord Reyes, 995 S.W.2d at 729. As in Reyes, the Plan enables Swiftex to enjoy all of the advantages, and even greater advantages, of subscriber status, without providing subscriber-level benefits to employees. See id. A waiver whereby an employee foregoes more common-law remedies than are surrendered under the Act, in exchange for fewer benefits than are afforded by the Act, must be declared invalid as against public policy. Id. We sustain Castellow’s single point of error.

CONCLUSION

Because the waiver executed by Castel-low is void as against public policy, the trial court erred in granting summary judgment in favor of Swiftex. We therefore reverse the trial court’s judgment and remand the cause to that court for further proceedings.

      . Common-law remedies also may be restricted when the limitation is a reasonable exercise of the police power in the interest of the general welfare, or the legislature has left a reasonable alternative at common law. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995); Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex.App.—Houston [1st Dist.] 1993, no writ).

      . Section 406.035 applies only to employees of subscribing employers. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 726 (Tex.App.—San Antonio 1999, pet. denied).

      . Subsection (a) lists defenses that are unavailable to an employer; subsection (c) dictates the defenses that an employer may use; and subsection (d) provides the employee’s burden of proof. Tex.Lab.Code Ann. § 406.033(a), (c), (d) (West 1996); Kroger Co. v. Keng, 23 S.W.3d 347, 351 (Tex.2000). The seventh court of appeals contends that the addition of subsection (b) is evidence that the legislature revisited the issue of an employee's common-law rights, and did not expressly void or prohibit these contractual provisions. Lawrence v. CDB Servs., Inc., 16 S.W.3d 35, 43-44 (Tex.App.—Amarillo 2000, pet. granted); Tex.Lab.Code Ann. § 406.033(b) (West 1996). That section, however, states that it "does not reinstate or otherwise affect the availability of defenses at common law.” Tex.Lab.Code Ann. § 406.033(b). We read this to mean that the common-law defenses prohibited under subsection (a) and those allowed in subsection (c) remain unchanged.

      . The Act relies on a similar point in time, "maximum medical improvement,” in determining certain benefits, but not medical benefits. Tex.Lab.Code Ann. § 401.011(30) (West Supp.2000) & § 408.101(a) (West 1996). Cf. id. § 408.021 (West 1996).

      . Temporary income benefits may also be measured as equal to seventy-five percent of the difference between the claimant's average weekly wage and the post-injury weekly earnings when the employee earns less than $8.50 an hour. Tex.Lab.Code Ann. § 408.103(a)(2) (West 1996). "Maximum medical improvement” is defined as the earlier of:
      (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; or
      (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or
      (C) the date determined [by statute for spinal surgery].

        Id. § 401.011(30).


source: Caselaw Access Project

author: MAURICE AMIDEI, Justice.

license: Public Domain

text:
    Jimmy Lee VAUGHN, Appellant, v. The STATE of Texas, Appellee.
    No. 14-99-01276-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 7, 2000.

      Randy McDonald, Houston, for appellants.
    Peyton Peebles, Houston, for appellees.
    Panel consists of Justices MAURICE AMIDEI, HUDSON, and DRAUGHN.

      . Senior Justice Joe L. Draughn sitting by assignment.

   OPINION

MAURICE AMIDEI, Justice.

Appellant, Jimmy Lee Vaughn, appeals his conviction for tampering with evidence. Tex.Pbn.Codb Ann. § 37.09(a)(1) (Vernon Supp.2000). After finding appellant guilty, the jury assessed punishment at eight years confinement in the Texas Department of Criminal Justice — Institutional Division. Raising two points of error, appellant contends that the State’s proof at trial was neither legally nor factually sufficient to sustain his conviction. We affirm.

Background

Sometime around the date of March 15, 1999, Harris County Sheriff Wilke pulled his vehicle into the parking lot of the Bayou Motel while on a routine patrol. While pulling into the lot, Wilke noticed two men arguing with each other while a female stood nearby. Seeing Wilke exit his marked police vehicle, both men quickly stopped arguing and returned to their separate rooms. Wilke proceeded to the room appellant had rented and, after knocking on the door, entered the room with appellant’s permission. Upon entering the room, Wilke saw what he identified as cocaine residue on a dresser in appellant’s room and began to question him about it. At this point, appellant began to react nervously. Wilke then called for backup and told appellant to sit down as he was being detained.

Around this time, the female Wilke had earlier seen near appellant and the other man began to look into the open doorway of the room. Keeping his eye on appellant, Wilke stepped outside of the room and briefly scanned the area. Appellant then slammed the door behind Wilke and headed to the bathroom, with Wilke in close pursuit. Seconds later, both men were inside the bathroom when appellant pulled down a curtain rod containing a small clear bag of what Wilke recognized as crack cocaine rocks. After appellant refused to obey an order to get on the ground, Wilke jumped on his back and attempted to wrestle the bag from appellant. During this struggle, appellant managed to open the bag, dump its contents into the toilet, and flush it. At this point, the appellant ended his resistance and was handcuffed, with Wilke subsequently recovering a single rock of crack cocaine near the toilet. Based on this, the jury convicted appellant of tampering with unknown physical evidence. Appellant now raises two points of error, asserting legal and factual insufficiency of the evidence.

Legal and Factual Sufficiency Standards

In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex.Crim.App.1998); Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App.1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). In contrast to a legal sufficiency review, a review of factual sufficiency dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996)). We conduct such a review by examining the evidence weighed by the jury that tends to prove the existence of an elemental fact in dispute and comparing it with the evidence tending to disprove that fact. Johnson, 23 S.W.3d at 7. Under a factual sufficiency review, a court will set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, id. Finally, while a reviewing court is authorized to disagree with the fact finder’s determination in its factual sufficiency review, it must employ appropriate deference to the fact finder’s judgment. See id. In practice, then, a factual sufficiency analysis generally requires deference to a fact finder’s determinations as a reviewing court can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. See id. at 9.

In his two issues, appellant argues that the evidence offered by the State was both legally and factually insufficient to comport with the indictment and charge given to the jury. Specifically, appellant argues that the State’s evidence at trial was insufficient to prove that he destroyed an unknown object of evidence, as pleaded in the indictment and submitted in the jury charge, but instead that the testimony clearly proved that he destroyed a known object — crack cocaine. For the reasons set out below, we disagree.

Under Texas law, a person is guilty of tampering with physical evidence when: 1) knowing that an investigation is pending he, 2) alters, destroys, or conceals, 3) any record, document, or thing, 4) intending to impair its verity, legibility, or availability as evidence in the investigation. Tex.Pen. Code Ann. § 37.09(a) (Vernon Supp.2000). To support its charge that appellant destroyed unknown evidence, the State adduced testimony from the arresting officer, Sheriff Wilke. While Wilke repeatedly stated that the destroyed substance was, in his opinion, crack cocaine, he twice conceded the possibility that the substance could have been wax, drywall, or soap. Moreover, Wilke also conceded that he never saw whether the extant piece of crack found near the toilet base fell from the bag appellant emptied in the toilet. After viewing the evidence in a light most favorable to the verdict, we conclude that the State’s evidence was legally sufficient to prove the essential elements of tampering with physical evidence.

Employing the appropriate deference to the jury’s determination, we likewise conclude that the State’s evidence was factually sufficient to prove that appellant destroyed an unknown object. While the evidence destroyed by appellant could well have been cocaine, the State demonstrated that it could not positively prove this as appellant flushed it down the toilet. Under these circumstances, we hold that the jury’s finding as to the unknown character of the destroyed object was no so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant’s two issues and affirm the judgment of the trial court.


author: WITTIG, Justice.

text:
    2,174 OBSCENE DEVICES, Appellant, v. The STATE of Texas, Appellee.
    No. 14-00-00192-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 14, 2000.

      Nelson T. Hensley, Houston, for appellants.
    Alan Curry, Houston, for appellees.
    Panel consists of Justices YATES, WITTIG and FROST.
   OPINION

WITTIG, Justice.

Gino Anthony Barone appeals an adverse forfeiture judgment from County Criminal Court. On August 21, 1995, Houston Police vice officers seized from a warehouse, without a warrant, 2,174 devices claimed to be obscene. In September 1999, the State filed a motion for forfeiture and destruction of the seized items. On December 15, 1999 a hearing was conducted of the motion resulting in a judgment entered February 1, 2000. In its judgment, the trial court delineated those items found to be obscene as well as a not insignificant number of items not found to be obscene. There were no criminal prosecutions involving any of the items seized.

In his sole point of error, appellant claims the court erred in partially granting the State’s motion to forfeit. Because Mr. Barone, the stated owner of the devices, was neither convicted under section 43.23 of the Texas Penal Code (wholesale promotion of any obscene material or device), nor were the devices entered into evidence, he claims there is no statutory authority for forfeiture. Without citation to authority, appellant further argues the legislature specifically intended to eliminate the review of devices one at a time applying section 43.21 penal code definitions. Rather, the only definitions to be applied are found in article 18.18 of the Texas Code of Criminal Procedure. Examples include “prohibited weapon,” article 18.18(g)(3) and “dog fighting equipment,” article 18.18(g)(4). Appellant correctly observes the legislature does not include the corresponding definition of “obscene devices” in article 18.18. Thereafter, in the procedures set out to show cause why seized property should not be forfeited or destroyed, the relator is not given the option to show his property is not obscene. See Tex.Code Cmm. PROC. Ann. art. 18.18(f). Because of the missing ability to characterize objects as obscene, a forfeiture may only occur upon final conviction and pervious determination by the fact finder. So the argument goes.

And finally, appellant’s one case citation illustrating there is no prohibition against an individual possessing an obscene device. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Indeed we recently observed, “No device, sitting passively on the shelf, is a criminal instrument.” Janjua v. State, 991 S.W.2d 419, 426 (Tex.App.—Houston. [14th Dist.] 1999, no pet.). But appellant overlooks the presumption, found in our penal code, stating a person in possession of six or more obscene devices is presumed to possess them with intent to promote. See Tex. Pen.Code Ann. § 43.23(f).

We should hasten to add we are dealing with an in rem proceeding, not the personal prosecution of Mr. Barone. Our courts have consistently held a forfeiture of personal property to be in rem, not against the owner, but the property itself. See Gambling Paraphernalia, Devices, Equipment and Proceeds v. State, 22 S.W.3d 625, 627 (Tex.App.—Dallas, 2000, no pet. h.). As in our case, there was no prosecution in Gambling Paraphernalia. But to the thrust of appellant’s argument, what are we to make of the fact that the forfeiture “show cause” provision does not mention obscene devices?

It is true the first paragraph of article 18.18(g)(6) provides: “ ‘obscene device or material’ means a device or material introduced into evidence and thereafter found obscene by virtue of a final judgment....”

However, subparagraph (b) provides: “If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of ... obscene device or material ... to show cause why the property seized should not be destroyed or the proceeds forfeited.” Further, subparagraph (e) allows any person interested in the alleged obscene device or material to appear or forfeit the interest in the property. And finally, sub-paragraph (g)(6) defines for purposes of this article an obscene device or material to be a “device or material introduced into evidence and thereafter found obscene by virtue of a final judgment after all appellate remedies are exhausted.”

The trial court was afforded the testimony of both Officer Leonard concerning the seizure of the devices and Mr. Barone who claimed ownership. Further evidence concerning the devices was introduced in the form of photographs. The trial court obviously reviewed all the evidence and made discrete findings in the judgment, eliminating many items as not being obscene. Thus the requirements of both a final judgment and introduction into evidence have been met. Appellant argues the statute requires a “final conviction.” The pertinent language only requires a “final judgment.” Appellant does not contend there was no evidence of the devices; the voluminous record indicates numerous pictorial representations such as to allow specific findings as to each item. Appellant’s own testimony can be read as conceding the obscene nature of the material. We overrule appellant’s only issue and affirm the judgment of the court.

      . Section 43.23 states:
      (a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.
      (b) An offense under Subsection (a) is a state jail felony.
      (c) A person commits an offense if, knowing its content and character, he:
      (1) promotes or possesses with intent to promote any obscene material or obscene device; or
      (2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.
      (d) An offense under Subsection (c) is a Class A misdemeanor.
      (e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.
      (f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.
      (g)It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.
      Tex. Pen.Code Ann. § 43.23.

      . This section states:
      If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person’s interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, criminal instrument, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.

        Tex.Code Crim. Proc. Ann. art. 18.18(f).

      . It is problematic, as appellant duly notes, that the legislature does not provide any ''burden” or opportunity in article 18.18 for the relator to show the material is not obscene. We are not here faced with a constitutional challenge so perhaps the legislature can clarify, this apparent oversight before one materializes. In the meantime, the Code Construction Act presumes the statute constitutional and a "just and reasonable result is intended.” Tex. Gov’t Code Ann. § 311.021(3).


author: ANDERSON, Justice.

text:
    Igdalia Melany FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 14-99-00270-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 14, 2000.

      James R. Butler, Houston, for appellants.
    Alan Curry, Houston, for appellees.
    Panel consists of Justices ANDERSON and FROST, and Senior Justice LEE.

       Senior Justice Norman Lee sitting by assignment.

   CORRECTED OPINION ON REHEARING

ANDERSON, Justice.

We withdraw our opinion issued August 31, 2000, and substitute the following corrected opinion.

A jury convicted appellant, Igdalia Flores, of violating a City of Houston ordinance requiring entertainers employed by a sexually oriented enterprise to obtain a permit from the City of Houston. She was fined three hundred dollars and sentenced to two days incarceration in the Harris County Jail. In fourteen points of error, she alleges the trial court erred in entering judgment because (1) the county court at law lacked jurisdiction over the cause; (2) the information was defective; (3) the municipal ordinance, upon which she was convicted, is unconstitutionally vague; (4) the evidence is legally and factually insufficient to support the verdict; and, (5) she was denied a hearing on her objection to the State’s peremptory challenges. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

While on assignment in another case at an adult cabaret, Tim Cox, a City of Houston vice officer, observed appellant dancing topless between the legs of a male customer. After she completed the dance, Cox approached appellant and asked her to accompany him to a back room of the club. At her request, Cox permitted appellant to make change for the customer before meeting him in the room. There, Cox confirmed that appellant did not have a permit from the City of Houston to act as an entertainer in the club. Consequently, he arrested her for engaging in entertainment without obtaining a permit in violation of the city ordinance.

The State charged appellant with a violation of the ordinance by information. Appellant moved to quash the information, alleging the same complaints she now raises on appeal. After a hearing, the trial court denied the motion and the cause proceeded to trial. Appellant filed a motion for new trial, which was overruled by operation of law.

II. Motion to Quash

In her first seven points of error, appellant contends the trial court abused its discretion by denying her motion to quash. In her first two points of error, appellant contends the information did not charge her with a violation of state law; therefore, the county court at law lacked jurisdiction over the case. In points three and four, appellant complains the information was fundamentally defective because it failed to allege all of the material elements of the offense. In points of error five through seven, appellant maintains the information failed to provide sufficient notice to prepare a defense and sufficient facts to bar a subsequent prosecution because it failed to state the manner and means by which she engaged in entertainment.

We review a trial court’s order quashing an information for an abuse of discretion. See Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1981) (op. on reh’g); State v. Kinkle, 902 S.W.2d 187, 189 (Tex.App. — Houston [14th Dist.] 1995, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles, or acts arbitrarily or unreasonably. See Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990).

Appellant raised the same objections to the trial court in her motion to quash and at the hearing on the motion as she does on appeal. The trial court denied the motion at the hearing but offered no explanation for the denial.

A. Jurisdiction

In her first two points of error, appellant contends the county court at law abused its discretion in denying her motion to quash because the court lacked jurisdiction over the cause. Appellant bases this contention on the following grounds: (1) the State did not offer proof that the City of Houston ordinance vested the county court at law with jurisdiction; (2) the information failed to charge appellant with a violation of state law or otherwise set forth sufficient information to vest the county court at law with jurisdiction; and (3) Chapter 243 of the Texas Local Government Code regulates the licensing of owners or operators of a sexually oriented business but not entertainers.

1. Judicial Notice and Proof of Ordinance

In her first argument, appellant contends the county court at law lacked jurisdiction over this case because the State neither asked the court to take judicial notice of the municipal ordinance nor offered a copy of the ordinance into evidence at the motion to quash hearing. Appellant contends that the State was required to offer proof of the ordinance because without proof of the ordinance, the county court at law had no means by which to determine whether it had jurisdiction over the case.

Under the former rules of criminal evidence, Texas courts could not take judicial notice of the existence of city ordinances or their terms, even on their own motion. See Lange v. State, 639 S.W.2d 304, 306 (Tex.Crim.App.1982); Green v. State, 594 S.W.2d 72, 74 (Tex.Crim.App.1980); Cole v. State, 556 S.W.2d 343 (Tex.Crim.App.1977); Jones v. State, 172 Tex.Crim. 100, 354 S.W.2d 160 (1962). Consequently, courts with appellate jurisdiction required proof of ordinances where the ordinances “enter into a transaction and are relied on.” Lange, 639 S.W.2d at 306. A reviewing court, however, could take judicial notice of an ordinance if the record of the trial below reflected relevant portions of the ordinance. See DeDonato v. State, 819 S.W.2d 164,166 (Tex.Crim.App.1991).

Under the current rule, any Texas court may, upon its own motion or the motion of a party, take judicial notice of a municipal ordinance, provided the party requesting notice furnishes the court with sufficient information to comply with the request and the court gives the opposing party an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. See Tex. R.Evid. 204. The record in this case indicates that the trial court and the parties were aware of and familiar with the provisions of the ordinance. At the hearing on appellant’s motion, the State maintained that the county court at law had jurisdiction over the case because a violation of the municipal ordinance was a Class A misdemeanor by virtue of the ordinance’s reference to section 243.001 of the Texas Local Government Code. Appellant’s trial attorney acknowledged the terms of the ordinance when he complained that the City of Houston could not apply Chapter 243 to entertainers because the Legislature enacted Chapter 243 years before the City of Houston enacted this particular ordinance. Later during the hearing, appellant’s trial attorney complained that the information did not state the material elements of the offense, which “come under the ordinance definition of entertainment, that it must be performed in the presence of a customer and there must be a specified sexual activity performed or a specified anatomical area exposed.” The trial court then asked the State by what means it intended to proceed at trial and specifically, the sexual activity it alleged appellant engaged in while providing entertainment. We find this discussion sufficient to establish that the trial court took judicial notice of the ordinance and specifically section 28-253.

2. Offense on Face of Information

Next, appellant’ argues that “the information fails to charge a violation of state law, or otherwise set forth sufficient information to vest the County Criminal Court at Law with jurisdiction.” Without citing authority, appellant claims that because the face of the information alleges that appellant violated a municipal ordinance and not a Class A misdemeanor pursuant to Chapter 243 of the local government code, jurisdiction vests in the municipal court, and not the county court at law.

“Jurisdiction vests only upon the filing of a valid indictment in the appropriate court.” Cook v. State, 902 S.W.2d 471, 476 (Tex.Crim.App.1995). Generally, a municipal court has exclusive original jurisdiction over all criminal matters arising under municipal ordinances within the city. See Tex.Code CeimProcAnn. art. 4.14(a) (Vernon Supp.2000). A municipal court’s jurisdiction in criminal cases, however, is restricted to offenses punishable by money fine alone. See id. art. 4.14(c). A municipal court does not have exclusive original jurisdiction over a violation of an ordinance punishable by confinement in jail or imprisonment. Id.

A county court at law, on the other hand, has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and offenses punishable by a fine of $500 or less. See Tex.Gov’t Code Ann. § 26.045 (Vernon Supp.2000). A violation of a municipal ordinance regulating sexually oriented businesses is a Class A misdemeanor. See Tex.Loc.Gov’t.Code Ann. § 243.010(b) (Vernon 1999). Punishment for a Class A misdemeanor includes a fine and/or confinement in jail for a term not to exceed one year. See Tex.Pen.Code Ann. § 12.21 (Vernon 1994). Because a violation of a municipal ordinance regulating sexually oriented businesses is a Class A misdemean- or punishable by fine or confinement, jurisdiction vests with the county court at law and not a municipal court. See State v. Coleman, 757 S.W.2d 127, 127 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd). In this case, a valid information was filed in the appropriate court, the county court at law.

The fact that the face of the information did not indicate which enabling statute the State relied upon to support the prosecution did not deprive the court of its jurisdiction over the cause. See DeDonato, 819 S.W.2d at 168 (Maloney, J. concurring). As discussed in points of error three and four, the information was a valid instrument filed in the appropriate court. Hence, the jurisdictional requirements were met.

3. Authority of Municipality under Chapter 243 Texas Local Government Code

In her third argument, appellant contends the county court at law lacks jurisdiction over the case because the Ordinance falls outside the provisions of Chapter 243 of the Texas Local Government Code. Chapter 243 is the enabling legislation that permits municipalities to regulate sexually oriented businesses. See Tex.Loc.Gov’t.Code Ann. § 243.001 (Vernon 1999). Appellant maintains Chapter 243 limits the scope of a municipality’s authority to regulate a sexually oriented business to the location of the business and to the licensing of the owner or operator of the business. Appellant maintains Chapter 243 grants no authority to require an entertainer to obtain a license or permit. We disagree.

In enacting Chapter 243, the Texas Legislature granted to municipalities broad powers to regulate sexually oriented businesses within the municipality. The Legislature expressly found that “the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity.” Id. § 243.001(a). To remedy this problem, the Legislature authorized municipalities to adopt by ordinance regulations regarding sexually oriented businesses that the municipality considers necessary to promote the public health, safety, or welfare of the community. See id. § 243.003(a). The Legislature further expressed its intent that no provision of chapter 243 “diminish the authority of a local government to regulate sexually oriented businesses with regard to any matters.” Id. § 243.001(b). While sections 243.006 and 243.007 of this chapter authorize a municipality to restrict or prohibit the location of a sexually oriented business and to require an owner or operator to obtain a license or permit to operate the business; see id. §§ 243.006, 243.007; they in no way restrict the municipality from regulating the conduct of employees of sexually oriented businesses. See Haddad v. State, 9 S.W.3d 454, 458 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Regulation of conduct may include the requirement that an employee acting as an entertainer in a sexually oriented enterprise hold a permit issued by the municipality. See Jackson v. State, 880 S.W.2d 432, 435 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd).

Because the information was valid, filed in the appropriate court, and the offense was properly enabled under Chapter 243 of the local government code, the county court at law had jurisdiction over the cause. Therefore, the trial court did not abuse its discretion in denying appellant’s motion to quash the information on appellant’s jurisdictional complaint. Accordingly, appellant’s first and second points of error are overruled.

4. Fundamental Defect

In her third and fourth points of error, appellant contends the information is fundamentally defective because it does not allege all of the material elements of the offense. A fundamental defect in a charging instrument deprives the trial court of jurisdiction. See Ex parte Patterson, 969 S.W.2d 16, 18 (Tex.Crim.App.1998). Appellant maintains the information is fundamentally defective because it omitted the method comprising the element of entertainment as defined by the Ordinance, i.e., the exposure of a specific anatomical area or the display of a specific sexual activity.

A charging instrument is fundamentally defective only if it fails to charge a person with an offense. Ex parte Patterson, 969 S.W.2d at 19 (quoting Tex. Const, art. V, § 12(b)). The failure to allege an element of an offense in a charging instrument is a defect of substance. See Studer v. State, 799 S.W.2d 263, 267-68 (Tex.Crim.App.1990). An information “flawed by a defect of substance but which purports to charge an offense is not fundamentally defective and, in the absence of a pretrial objection, will support a conviction.” See Ex parte Patterson, 969 S.W.2d at 19. As long as the information charges “the commission of an offense,” it is not fundamentally defective even if fails to allege an element of an offense. Duron v. State, 956 S.W.2d 547, 551 (Tex.Crim.App.1997).

“Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.” Tex.Pen.Code Ann. § 1.03(a) (Vernon 1994). A written instrument sufficiently charges a person with an offense if it alleges on its face all of the statutory elements comprising a criminal offense, even if it is otherwise defective. See Duron, 956 S.W.2d at 551.

In this case, the State sufficiently charged appellant with the commission of an offense. A violation of section 28-253(a) of Article VIII of the Ordinance is a criminal offense under Chapter 243 of the local government code. See Tex.LoC. Gov’t.Code Ann. § 243.010(b) (Vernon 1999). Section 28-253(a) provides that “[fit shall be unlawful for any person who does not hold a permit to act as an entertainer or a manager of or in an enterprise.” Houston, Tex., Code § 28-253(a) (2000). Thus, the elements of the offense are (1) a person (2) without a permit (3) acts as an entertainer (4) in an enterprise. See id.

The information here alleged the elements of the offense described in section 28-253(a) of Article VIII of the Ordinance as follows, in pertinent part:

[T]hat in Harris County, Texas, IGDA-LIA MELANY FLORES, hereafter styled the Defendant, heretofore on or about SEPTEMBER 3, 1998, did then and there unlawfully intentionally and knowingly act as entertainer at MICHAEL’S INTERNATIONAL, a sexually oriented enterprise, namely, an adult cabaret located at 6440 Southwest Freeway and within the incorporated limits of the City of Houston without holding a valid permit issued by the Chief of Police of the City of Houston, or his designee, as required under section 28-253(a) of the Code of Ordinances of the City of Houston.

Because the information plainly states the elements of the offense under section 28-253(a), the information is not fundamentally defective. The trial court did not abuse its discretion in denying appellant’s motion to quash; accordingly, appellant’s third and fourth points of error are overruled.

B. Notice

In her fifth, sixth, and seventh points of error, appellant maintains the trial court committed reversible error in denying her motion to quash the information and her motion for new trial because the information failed to provide her with sufficient notice by which to prepare a defense and to plead sufficient facts to bar a subsequent prosecution. Specifically, appellant argues the information failed to identify the act or performance that she engaged in under the Ordinance and failed to identify which specified sexual activity or anatomical area was involved as defined by the Ordinance.

Both the Sixth Amendment to the United States Constitution and Article I,section 10 of the Texas Constitution require the State to give a defendant notice before trial of the nature and cause of the accusation against him. See U.S. Const. amend. VI; Tex. Const, art. I, § 10. They further require that notice be given with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.1998).

The Texas Legislature has also provided some guidance for the requisite specificity of an information. See State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998). “The rules with respect to allegations in an indictment and the certainty required apply also to an information.” Tex.Code Crim.PROC.Ann. art. 21.23 (Vernon 1989). Article 21.21(7) of the Texas Code of Criminal Procedure requires that an information set forth the offense “in plain and intelligible words.” Id. art. 21.21(7). Article 21.03 provides that “[e]verything should be stated in an indictment which is necessary to be proved.” Id. art. 21.03. Finally, article 21.04 provides “[t]hat the certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” Id. art. 21.04.

Generally, a motion to quash will be granted if the facts sought are essential to give notice. See State v. Edmond, 933 S.W.2d 120, 129 (Tex.Crim.App.1996) (quoting Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981) (op. on reh’g)). If a fact is not essential, the information need not plead evidence relied upon by the State. See id. “Subject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements; the State need not allege facts that are merely evidentiary in nature.” Mays, 967 S.W.2d at 406. An exception to this general rule arises when a statute defines the manner or means of the commission of the offense in several alternative ways. See id. When “a criminal statute possesses statutorily-defined, alternative methods of committing an offense, then upon timely request, a defendant is entitled to an allegation of which statutory method the State intends to prove.” Edmond, 933 S.W.2d at 128. This rule applies only when the statutory term describes an act or omission of the defendant. See Lewis v. State, 659 S.W.2d 429, 431 (Tex.Crim.App.1983); State v. Goldsberry, 14 S.W.3d 770, 773 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd). The reason for the exception is that a defendant is constitutionally entitled to know what behavior she allegedly engaged in so she can properly prepare a defense to that allegation. See State v. Carter, 810 S.W.2d 197, 199 (Tex.Crim.App.1991). In any case, under Article I, section 10 of the Texas Constitution, the requisite notice of an offense must come from the face of the information. See Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986). Under the constitutional guarantee of adequate notice, a defendant may not be left to guess or assume that the State is going to prove one or all of the types of statutorily defined conduct. See Carter, 810 S.W.2d at 199.

The Ordinance explicitly describes the conduct that is subject to criminal sanctions if performed by an employee of a sexually oriented business without a permit. Section 28-253(a) provides that “[i]t shall be unlawful for any person who does not hold a permit to act as an entertainer or manager of or in an enterprise.” Houston, Tex., Code § 28-253(a) (2000). The Ordinance defines an entertainer as “[a]ny employee of an enterprise who performs or engages in entertainment.” Id. § 28-251. “Entertainment” is defined as “[a]ny act or performance, such as a play, skit, reading, revue, fashion show, modeling performance, pantomime, role playing, encounter session, scene, song, dance, musical rendition or striptease that involves the display or exposure of specified sexual activities or specified anatomical areas or engaging in any specified sexual activities whatever in the presence of customers.” Id. “Specified anatomical areas” are defined as “less than completely and opaquely covered: (a) human genitals, pubic region or pubic hair; (b) buttock; (c) female breast or breasts or any portion thereof that is situated below a point immediately above the top of the areola; or (d) any combination of the foregoing.” Id. § 28-121. “Specified sexual activities” include (1) human genitals in a discernable state of sexual stimulation or arousal; (2) acts of human masturbation, sexual intercourse or sodomy; (3) fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock or female breast or breasts; or (4) any combination of the foregoing. See id.

In short, section 28.253(a) criminalizes a specific type of entertainment performed by an employee of a sexually oriented enterprise if performed for customers without a permit from the City of Houston. The manner and means of “acting as a entertainer” under such circumstances consists of performing a specific act, such as a table dance, that involves the display of specified sexual activities or exposure of specified anatomical areas as defined by the Ordinance. The display of specific sexual activities or exposure of specific anatomical areas refers to characteristics of the act or performance that criminalize the act or performance if performed without a permit. For this reason, we hold the type of sexual activity performed and the specific anatomical area exposed to be facts essential to give notice. The face of the information, here, does not allege these facts; consequently, the information fails to give appellant the requisite notice.

The failure of an information to give a defendant sufficient notice of the offense charged constitutes a defect of form. See Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App.1994); American Plant Food Corp. v. State, 508 S.W.2d 598, 602 (Tex.Crim.App.1974). A judgment is not affected by a defect of form that “does not prejudice the substantial rights of the defendant.” Tex.Code CRM.PRoc.Ann. art. 21.19 (Vernon 1989); see also Adams, 707 S.W.2d at 902. The face of the information did not provide sufficient notice to appellant. Therefore, it was error for the trial court to deny appellant’s motion to quash. Accordingly, we must now perform a harm analysis by determining “whether, in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and finally, how great an impact.” Adams, 707 S.W.2d at 903.

The failure to provide proper notice in a charging instrument is not reversible error unless the error affects the defendant’s ability to prepare a defense. See Chambers v. State, 866 S.W.2d 9, 17 (Tex.Crim.App.1993); Peck v. State, 923 S.W.2d 839, 841 (Tex.App.—Tyler 1996, no pet.). In making this determination, we consider the complete record. See Saathoff v. State, 908 S.W.2d 523, 528 (Tex.App.—San Antonio 1995, no pet.) (opinion on remand); see also Saathoff v. State, 891 S.W.2d 264, 267 (Tex.Crim.App.1994) (remanding case to intermediate court of appeals to perform an Adams analysis by reviewing the record for prejudice to appellant’s substantial rights from trial court’s erroneous refusal to grant appellant’s motion to quash indictment based on notice defect).

A review of the record fails to show how the lack of notice in the information adversely impacted appellant’s ability to prepare a defense. The record reflects that appellant had notice of the police offense report and a supplemental narrative to the report. The supplemental narrative states that appellant, wearing nothing but a bikini bottom, was performing a table dance between the legs of a seated male patron. The report contains a graphic and detailed description of appellant’s performance (e.g., “shaking her breasts near his face ... placing her buttocks near his face”). Furthermore, the record shows that the day before trial at the hearing on appellant’s motion to quash, the State informed the trial court as well as appellant’s counsel of the State’s intention to prove that appellant acted as an “entertainer” by engaging in “specified sexual activities,” namely “fondling or other erotic touching of human genitals, pubic region or pubic hair, buttocks or female breast.” At trial, Officer Cox testified that while dancing between the legs of a seated male customer, appellant was erotically caressing her buttocks and placing her buttocks near the customer’s face.

There is nothing in the record or in appellant’s arguments to suggest that defense strategy turned on the particular anatomical area (genitals, breast, buttocks, or pubic area) or sexual act (fondling or erotic touching) involved or that appellant was in any way impaired in her ability to present a defense. There is nothing in the record to suggest that appellant was prejudiced as a result of any surprise because she had anticipated that the State would target her touching of a different body part or engaging in a different sexual act, nor is there any reasonable basis to conclude that appellant was unable to defend against the charge of entertaining without a permit because she was not aware of the specific type or act of “entertainment” at issue. We are unable to find from this record that the omission of the manner and means from the information had a deleterious impact on appellant’s defense.

In the final analysis, this record supports a conclusion beyond a reasonable doubt that the absence of notice of the manner or means of the commission of the offense in the information did not prejudice the substantial rights of appellant. In Adams, the court held that a defect in notice must prejudice the substantial rights of a defendant before reversal is warranted. See 707 S.W.2d at 904. Thus, because the error in denying appellant’s motion to quash, or her motion for new trial on the same grounds, did not prejudice appellant’s substantial rights, reversal based on such error is not warranted. Accordingly, appellant’s fifth, sixth, and seventh points of error are overruled.

III. Constitutionality of the Okdinance

In her eighth and ninth points of error, appellant claims the Ordinance is unconstitutionally vague under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 19 of the Texas Constitution. Appellant claims the Ordinance is unconstitutionally vague because it does not define the term “erotic.”

The Due Process Clause of the Fourteenth Amendment requires a legislature to define a criminal offense in its penal statutes in a manner sufficient to inform ordinary people whether their conduct is prohibited and to provide minimal guidelines to govern law enforcement. See State v. Edmond, 933 S.W.2d 120, 125 (Tex.Crim.App.1996). “Without such guidance, a penal statute might be susceptible to arbitrary and discriminatory enforcement.” Id.

An appellate court presumes the validity of a statute or ordinance attacked on constitutional grounds. See Ex Parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978); Webb v. State, 991 S.W.2d 408, 414 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd). The court must uphold the ordinance if a reasonable construction will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979); Meisner v. State, 907 S.W.2d 664, 667 (Tex.App.—Waco 1995, no pet.). Appellant bears the burden to prove the ordinance unconstitutional as applied specifically to her conduct. See Meisner, 907 S.W.2d at 667.

A statute is vague if persons of common intelligence must necessarily guess at its meaning and differ about its application. See Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App.1985); Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.—Austin 1995, pet. ref'd). A statute need not be mathematically precise; it need only give fair warning, in fight of common understanding and practices. See Ex parte Anderson, 902 S.W.2d at 699. A statute is not unconstitutionally vague merely because the words or terms used are not defined. See Edmond, 933 S.W.2d at 126.

When words are not defined, they are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense. See Ex parte Anderson, 902 S.W.2d at 699. Statutory words are to be read in context and construed according to the rules of grammar and common usage. See Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998). Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not vague and indefinite. See Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App.1978); Ex parte Anderson, 902 S.W.2d at 700.

Appellant contends the Ordinance fails to give fair warning of the prohibited conduct because it fails to distinguish between touching and erotic touching. She argues that “[c]onduct which may be defined ‘erotic’ by some may not be viewed as such by others.” Moreover, she maintains the Ordinance fails to provide guidance to law enforcement, who are called upon to determine whether the touching is erotic, thus requiring the entertainer to hold a permit. Appellant bases this argument on the testimony of Officer Cox, who testified that he “guessed” he could use “erotic” as an adjective to describe the manner in which appellant touched her buttocks.

Appellant’s argument isolates the term “erotic” from the rest of the Ordinance. Although undefined in the Ordinance, the term “erotic” is neither vague nor indefinite as applied to appellant’s conduct. In the context of the Ordinance, the term “erotic” describes how the entertainer touches specific body parts, the whole of which comprise a sexual activity. The commonly understood meaning of “erotic” is “of or causing sexual love, esp. tending to arouse sexual desire or excitement.” The OxfoRD Encyclopedic English Dictionary 483 (1991); see also Webster’s Ninth New Collegiate Dictionary 422 (1983) (defining erotic as “of, devoted to, or tending to arouse sexual love or desire”). Thus, erotic touching of a specified body part in the context of this Ordinance means touching a specified body part in such a manner that would tend to arouse sexual desire or excitement. Appellant’s argument also isolates Officer Cox’s equivocal answer regarding the erotic manner from the rest of his testimony. The record reflects that Cox observed appellant touch her buttocks while performing a dance between the legs of a male customer. He testified that appellant was dancing in front of the customer “approximately the distance of his knees facing him with her hands over head at points in time and just kind of moving her body back and forth and her hips.” As the music played, appellant turned around, bent over and continued to dance. “She had her right hand that she caressed or moved very slowly on her buttocks, the right side.” Her hands appeared to rub her buttocks in a slow, deliberate manner. When the officer was asked if he would “use erotic as an adjective to the manner” of appellant’s movement with her hand, the following exchange occurred:

A. I guess it could be, it was slow, a very slow movement.
Q. Well, I mean, was she — did she just brush her arm against her butt?
A. It appeared to me that it was a slow motion rubbing, caressing.
Q. (By Ms. Bennett) Okay. And she wasn’t just adjusting her bathing suit?
A. No, ma’am.
Q. And it was a slow and deliberate—
A. Yes, ma’am.

The language of the Ordinance is not unconstitutionally vague. It conveys a sufficient warning about the proscribed conduct when measured by a common understanding and practice. Appellant’s eighth and ninth points of error are overruled.

IV. Sufficiency of the Evidence

In her tenth through twelfth points of error, appellant contends the evidence is legally insufficient to support the conviction. In her thirteenth point of error, she challenges the factual sufficiency of the evidence.

A. Judicial Notice of Ordinance

In her tenth point of error, appellant contends the evidence is legally insufficient to prove she committed a violation of the Ordinance because the State failed to offer proof of the Ordinance at trial. Without proof of the Ordinance in the record, appellant maintains, this court may not take judicial notice of the ordinance. See Blackwell v. Harris County, 909 S.W.2d 135, 140 n. 2 (Tex.App.—Houston [14th Dist.] 1995, writ denied) (stating court may take judicial notice of municipal ordinance when the ordinance is in verified form, as in that case); City of Houston v. Southwest Concrete Const., Inc., 835 S.W.2d 728, 733 n. 5 (Tex.App.—Houston [14th Dist.] 1992, writ denied) (requiring municipal ordinances to be submitted in verified form to be part of appellate record). She argues without taking judicial notice of the Ordinance, we cannot determine the sufficiency of the evidence to sustain her conviction. See Howeth v. State, 645 S.W.2d 787, 788 (Tex.Crim.App.1983).

Rule 204 of the Texas Rules of Evidence applies to all courts, including this court. It authorizes a court upon its own motion to take judicial notice of a municipal ordinance. See Tex.R.Evid. 204. Although in Blackwell and Southwest Concrete, supra, we stated that we would take judicial notice of a municipal ordinance if a verified copy of the ordinance was in the appellate record, we are not bound by stare decisis to follow that rule in every case. See Dedonato v. State, 789 S.W.2d 321, 325 (Tex.App.—Houston [1st Dist.] 1990), affirmed, 819 S.W.2d 164, 165-66 (Tex.Crim.App.1991).

Here, we take judicial notice of the Ordinance for two reasons. First, the trial court took notice of the Ordinance and appropriately applied its provisions in its charge to the jury. For this reason, neither party disputes that the jury reached its verdict on a correct statement of the law. Second, the provisions of the Ordinance are readily available to this court. Appellant recites the pertinent provisions in her brief and the City of Houston posts its ordinances, including the pertinent provisions of Ordinance 97-75 on its Internet web page. Consequently, this court may readily verify the pertinent sections of the Ordinance and review the sufficiency of the evidence in fight of these provisions. Accordingly, we overrule appellant’s tenth point of error.

B. Legal Sufficiency

In her eleventh and twelfth points of error, appellant contends the evidence is legally insufficient to support her conviction. In point of error eleven, she contends the evidence is insufficient to show that she did not have a valid permit issued by the City of Houston. In point of error twelve, she maintains the evidence is insufficient to show she acted as an entertainer as charged in the information.

In reviewing the legal sufficiency of the evidence, we view the evidence in the fight most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.CrimApp.1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We accord great deference “to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). “We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.” Id. at n. 13, 99 S.Ct. 2781 (quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781).

In point of error eleven, appellant complains the State failed to prove that “no permit had been issued by the Chief of Police of the City of Houston or his desig-nee” because neither the Chief of Police nor his designee testified to the same at trial. The record, however, reflects that Officer Cox asked appellant if she had a permit. He testified that she did not. Appellant voiced no objection to Cox’s testimony or the State’s failure to establish a foundation for this testimony. A rational trier of fact could have found that appellant did not have a permit to act as an entertainer. Therefore, we overrule her eleventh point of error.

In her twelfth point of error, appellant contends the evidence is legally insufficient to find that she acted as an entertainer; ie., that she engaged in an erotic touching of her buttocks. As discussed in points of error eight and nine, Cox’s descriptive testimony of appellant’s conduct is sufficient for a rational juror to find that she acted as an entertainer. Accordingly, we overrule appellant’s twelfth point of error.

C. Factual Sufficiency

In her thirteenth point of error, appellant contends “the jury verdict should be set aside because it is contrary to the overwhelming weight of the evidence.” Appellant contends that for her conviction to stand, “the facts must sufficiently establish that the touching was ‘erotic’ and that the absence of a permit was because one had not been issued by the Chief of Police of the City of Houston, or his designee.”

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). We “are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable.” Clewis, 922 S.W.2d at 135. In other words, we will not substitute our judgment for that of the jury. See id. at 133. To do so would violate a defendant’s right to trial by jury. See id.

Appellant contends the testimony of Rauf Tony Kabolati, the general manager of the cabaret, and of Officer Cox, the arresting officer, indicate that appellant did not engage in erotic touching and that Cox was not a designee of the chief of police for the purpose of issuing permits. Kabolati testified that when asked, Cox would not tell him how appellant violated the Ordinance. Kabolati claims Cox stated that appellant would be notified when they arrived downtown. Kabolati attested that Cox did not inspect any records that contained information about the women working at the cabaret. He also testified that he had no personal knowledge about the particular dance appellant performed in front of Cox.

As noted in points of error eight and nine, Cox testified at trial about the dance appellant performed between the legs of a male customer and the manner in which she touched her buttocks. He also testified that he knew on the day he observed appellant’s performance that she had been engaging in sexual activity and he filed charges for that behavior. He further testified appellant’s conduct was the basis for asking her for the permit.

In other testimony, Cox attested that the initial police report was made by another officer. The report simply lists appellant as one of several women arrested for lack of a permit under the Ordinance. The report indicates at the time of the arrest, appellant was dressed in a black bikini bottom and changed to a black dress and shoes. Cox dictated a supplement to the report, in which he detailed his investigation of appellant’s conduct. The supplement states, in pertinent part:

Ms. Flores was performing a table dance for an unknown black male patron. This black male was sitting in a chair with his legs spread apart while Ms. Flores proceeded to dance between his legs, facing him, and shaking her breasts near his face. Ms. Flores then turned around, still between this patron’s legs, and bent over placing her buttocks near his face. Ms. Flores danced much closer to her customer than Ms. Costillo did. Both female dancers had on bikini bottoms and no tops. The music ended and both female dancers picked up their tops and walked toward where I was standing.... I also asked Ms. Flores to accompany me to the back dressing room, when Ms. Flores asked if she could return change to the black male patron she had been dancing for. Ms. Flores’ request was allowed and at which time myself and both female dancers proceeded to the female dressing room, where they were left in the care and custody of officers Andrews and Reaves.

Cox acknowledged that this supplement, prepared shortly after appellant’s arrest, contained no information about the specific manner in which appellant violated the Ordinance. Cox conceded that the act at issue — erotic touching of the buttocks— was not in the report and admitted the omission was his mistake. Yet, Cox attested, the first time he let anyone know that something was missing in the report was a few days before trial when he discussed the facts of the case with the prosecutor. The discrepancies between Cox’s supplemental report that did not state appellant’s touching was erotic, and his testimony at trial, which did so state, go to the credibility of his testimony, and not to the weight of the evidence.

The record here does not reflect that proof of appellant’s guilt is so obviously weak as to undermine confidence in the jury’s determination or that proof of her guilt is greatly outweighed by contrary proof. Accordingly, the evidence is factually sufficient to support her guilt. Appellant’s thirteenth point of error is overruled.

V. Batson HeaRing

In her fourteenth point of error, appellant claims “the trial court committed reversible error in refusing to conduct a hearing following appellant’s objection to the State’s use of peremptory challenges in a racially discriminatory manner.” Excluding a person from jury service because of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See U.S. Const, amend. XIV; Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Tex.Code CRIm.Proc.Ann. art. 35.261 (Vernon 1989) (codifying Batson standard).

A party challenging the opposing party’s exercise of peremptory strikes on racial grounds bears the ultimate burden to persuade the trial court regarding racial motivation. See Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App.1999) (citing Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). The same party bears the initial burden of production to establish a prima facie case of racial discrimination by the State against an eligible venire member. See id.; Batson, 476 U.S. at 97, 106 S.Ct.1712. “To make such a case, the defendant must show that relevant circumstances raise an inference that the State made a race-based strike.” Wardlow v. State, 6 S.W.3d 786, 787 (Tex.App.—Austin 1999, no pet.). The burden is not onerous; only minimal evidence is needed to support a rational inference. See id. Once a prima facie case is established, the burden of production shifts to the challenged party to give neutral reasons for the strike. See Ford, 1 S.W.3d at 693. The prosecutor’s explanation must be clear and reasonably specific, and must contain legitimate reasons for the strike related to the case. See Wardlow, 6 S.W.3d at 787. Once a race-neutral explanation is proffered, the challenging party must persuade the trial court that the reasons proffered were pretextual and the strikes are in fact racially motivated. See Ford, 1 S.W.3d at 693-94; Wardlow, 6 S.W.3d at 787.

In this case, appellant objected to two of the State’s peremptory strikes on the ground that both venire persons were African American and were part of a racially recognizable group; therefore, “there was no racially neutral reason to challenge those two perspective jurors.” The trial court queried whether appellant was saying that she was part of the same racial group. Appellant explained that she was Hispanic and not part of the same racial group but noted that membership in the same racial group was not mandatory to a Batson challenge. The trial court overruled the objection and then asked the State to give reasons for the strike for the record. The State responded as follows:

MS. BENNETT: Okay. For the record, I struck Juror No. 1, he was previously on a criminal jury that was unable to reach a verdict. And I struck Juror No. 6 just because I didn’t feel like he and I had—
MR. LARSON: Juror No. 5 and 6 came from me. I thought they looked skeptical when she was talking to them about the case. They both had their eyes down, looking away, when the rest of the venire were watching her, and I thought they were rather skeptical of her case, so that’s where No. 6 came from.
THE COURT: All right. Denied.

On appeal, appellant contends she made a prima facie case of racial discrimination on the basis of her objection that the two stricken venire members were African American and, therefore, she was entitled to a hearing on her Batson challenge. We need not review the issue of whether appellant established a prima fa-cie case because the issue is now moot. “[O]nce the State’s [sic] offers explanations for striking the contested venire members, and the trial judge rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case is now moot and, therefore, not subject to appellate review.” Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App.1996) (emphasis in original). In this case, after denying appellant’s objection, the trial court urged the State to articulate reasons for the contested peremptory strikes. The State then articulated its race-neutral reasons for the strikes and the trial court ruled on the ultimate question of intentional discrimination without hearing argument from appellant.

Although cursory, the trial court conducted a hearing by asking the State to proffer for the record its reasons for the strikes. The court ruled on the issue without hearing evidence or argument from appellant that would impeach or refute the State’s neutral explanation. Appellant, however, did not ask to cross-examine the prosecutor or offer any evidence following the State’s race-neutral explanation for the peremptory challenges. See Salazar v. State, 795 S.W.2d 187, 192-93 (Tex.Crim.App.1990); Williams v. State, 767 S.W.2d 872, 874 (Tex.App.—Dallas 1989, pet. ref'd). Moreover, appellant did not voice an objection at trial that she was denied the opportunity to present evidence or argument and she did not seek to perfect a bill of exceptions. See Salazar, 795 S.W.2d at 193.

A Batson challenge is subject to principles of ordinary procedural default. See Batiste v. State, 888 S.W.2d 9, 17 n. 5 (Tex.Crim.App.1994) (as applied to ineffective assistance of counsel); Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993) (explaining forfeitable rights), overruled in part on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997); Mathews v. State, 768 S.W.2d 731 (Tex.Crim.App.1989) (declining to hear Batson complaint because not preserved at trial). “The trial judge as institutional representative has no duty to enforce for-feitable rights unless requested to do so.... Accordingly, an important consequence of a party’s failure to petition enforcement of his forfeitable rights in the trial court is that no error attends failure to enforce them and none is presented for review on appeal.” Marin, 851 S.W.2d at 279-80 (citing Rezac v. State, 782 S.W.2d 869, 870-871 (Tex.Crim.App.1990)). Because appellant did not ask to cross-examine the prosecutor or offer evidence refuting the race-neutral explanation for the strikes, and she did not object to the lack of an opportunity to do the same, she forfeits review of the issue on appeal. Therefore, we overrule appellant’s fourteenth point of error.

Because we find no reversible error, we affirm the judgment of the court below.

      . Appellant’s trial attorney said, "In the ordinance it says that all violations of this ordinance will be punished pursuant to Chapter 243 of the Local Government Code.”

      . The trial court asked the State what specific sexual activities appellant engaged in. The prosecutor answered, "Like fondling or other erotic touching of human genitals, pubic region or pubic hair, buttocks or female breast.” Appellant’s attorney queried, "Again, which one? That’s our whole point here is that—” The trial court responded, "Her left breast or right breast?”

      .Unlike this case, the term "entertainment” in the information in Kaczmarek v. State, 986 S.W.2d 287 (Tex.App.—Waco 1999, no pet.), did not involve the defendant's conduct, but one of the many services provided by a manager of a sexually oriented enterprise. See id.

      . Upon appellant’s timely motion to quash, the State should have amended the information. See Tex.Code Cwm.Proc.Ann. art. 28.10 (Vernon 1989).

      . Neither the offense report nor the supplemental narrative described the act for which appellant was tried.

      . The male customer was not identified by appellant or the police report; thus, he was unavailable to testify. The club manager testified that he did not observe the dance.

      . See text in Part IIB, supra, at page 917.

      . Although appellant did not object to the testimony when offered on the basis of Rule 1005 of the Texas Rules of Evidence, she moved for an instructed verdict on the basis that the State failed to offer any evidence from the Chief of Police or his designee to show that appellant did not have a permit.

      . Although discussed at the hearing on appellant's motion to quash the information, the supplemental report was not admitted into evidence at trial. We recognize in conducting a factual sufficiency review, we consider the evidence weighed by the jury. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). We include the report only to clarify appellant’s argument that the evidence was factually insufficient to support a finding that she engaged in erotic touching.

      . Appellant does not seek review of whether the trial court erred in allowing the State to peremptorily strike the two African American venire members. Without meaningful cross-examination or evidence to rebut a facially neutral explanation for the strike, it is difficult to show on appeal that one met her burden of persuasion to successfully challenge the State's peremptory strikes at trial. See Ford v. State, 1 S.W.3d 691, 693-94 (Tex.Crim.App.1999).