author: DAY, Justice.

text:
    JCPENNEY LIFE INSURANCE CO., Appellant, v. Lela M. BAKER, Appellee.
    No. 2-99-267-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 16, 2000.

      Reynolds & Pennington, L.L.P., H. Allen Pennington, Fort Worth, for Appellant.
    Walton, Brown, Walton, et al., Edwin J. Seilheimer, Granbury, William Latham, Fort Worth, for Appellee.
    Before DAY and GARDNER, JJ.; and FARRIS, J., (Retired, Sitting by Assignment).
   OPINION

DAY, Justice.

I. INTRODUCTION

Lela Baker brought suit as the beneficiary of an insurance policy issued by Appellant JCPenney Life Insurance Company (“JCPenney”) to Lela’s husband, Howard Baker. After Lela filed a claim with JCPenney, the insurer paid her $40,000 under Part III of Howard’s policy, which covered “all other injuries resulting in a loss.” However, JCPenney disputed liability under Part II of the policy, which provided for a $100,000 benefit if Howard was injured by an accident while occupying a private passenger automobile.

Lela filed suit, seeking recovery under Part II of the policy, as well as statutory damages and attorney’s fees. The jury found in favor of Lela and the trial court entered judgment for $60,000, plus the statutory penalty, interest, and attorney’s fees against JCPenney. On appeal, JCPenney alleges that there was no evidence, or alternatively, insufficient evidence, to support the jury’s verdict. JCPenney also alleges the trial court abused its discretion in allowing Lela’s expert witness to testify.

We affirm.

II. BACKGROUND

At the time of Howard’s death, he and Lela owned and operated Mama’s Donut Shop in Granbury. Tuesday through Sunday, Howard left the shop during the early morning hours to deliver donuts to the local motels and stores. On March 13, 1996, at approximately 5:45 a .m., Howard’s truck drove off the road while he was making deliveries and plunged into Lake Granbury. Rodney Pickett was driving toward a small bridge beside Lake Gran-bury with his co-worker, J.D. Hopper, when Pickett saw a splash of water from the lake that “looked like an explosion.” The water shot up beside the bridge, reaching the treetops. Midway across the bridge, Pickett and Hopper looked out across the lake, where they saw Howard’s truck in the water approximately 75 to 100 feet from the shore. Pickett drove across the bridge and down to the water’s edge, where the men noticed the cab of Howard’s vehicle was already under water. Pickett backed his truck away from the lake and drove back to the road to summon help.

As they reached the road, they saw a police cruiser driven by Officer Rodney Casey approaching. Pickett flashed his truck lights at Casey, but the officer continued driving and crossed the bridge. When Pickett decided to go after Casey, he met the officer coming back across the bridge to see if Pickett needed assistance. Pickett told him about seeing the truck in the water. All three men returned to the water’s edge and saw that Howard’s truck was now almost totally submerged. About fifteen seconds after the truck went completely under water, Pickett and Hopper saw a man surface near the area where the pickup had gone down. The man stayed afloat for a few moments, but then disappeared from their view. Howard’s body was pulled from Lake Granbury later that morning.

III. STANDARD OF REVIEW

In determining a “no-evidence” issue, we are to consider all of the evidence in the light most favorable to the party in whose favor the judgment has been rendered, and to indulge every reasonable inference from the evidence in that party’s favor. Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (op. on reh’g); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law. Formosa Plastics Corp., 960 S.W.2d at 48; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). A “no-evidence” issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Merrell Dow Pharm., 953 S.W.2d at 711 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 362-63 (I960)). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992).

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

IV. THE INSURANCE POLICY

In this case, the insurance policy in effect required that Howard suffer a bodily injury caused by an accident “directly and independently of all other causes.” A coverage clause such as this case places the burden on the insured to prove that the loss in question was caused by an accidental bodily injury directly and independently of all other causes. See Stroburg v. Ins. Co. of N. Am., 464 S.W.2d 827, 829 (Tex.1971); Connecticut Gen. Life Ins. Co. v. Stice, 640 S.W.2d 955, 958 (Tex.App.—Dallas 1982, writ ref'd n.r.e.). “Independent” as used in the coverage clause means “solely,” “only,” and “standing alone.” Stroburg, 464 S.W.2d at 829. Thus, a coverage clause of this type limits recovery to accidental bodily injuries that are the sole cause of death. See id. Even so, however, recovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation that it does not materially contribute to the death or injury. Id.

V. WAS HOWARD’S DEATH CAUSED BY AN ACCIDENT INDEPENDENT OF ALL OTHER CAUSES?

In its first issue on appeal, JCPen-ney argues that there is no evidence or insufficient evidence to establish that Howard’s death was caused by an accident independent of natural causes. Specifically, JCPenney contends that in order to prevail, Lela had to prove that no natural causes contributed to Howard’s death. Because there was some evidence indicating that Howard may have had a coronary problem (i.e., a natural cause) that caused him to lose consciousness and drive into the lake, JCPenney argues that Lela could not establish that Howard’s injury was the result of an accident “directly and independently of all other causes” as required by Howard’s policy. JCPenney also argues that Lela failed to prove that drowning was the sole proximate cause of Howard’s death.

At trial, JCPenney introduced deposition testimony from Chief Medical Examiner Dr. Nizam Peerwani, who performed the autopsy on Howard’s body. During the autopsy, Peerwani determined that Howard suffered from hypertension and had an enlarged heart. Peerwani also found that Howard had a hardening of the coronary arteries with eighty to ninety percent occlusion (blockage). Based on Howard’s heart condition and on police reports indicating that there was no evidence at the scene indicating that Howard had tried to brake or take other evasive action, Peer-wani believed that it was “probable” that Howard “may” have experienced a “cardiac conduction problem, thereby losing control of his vehicle and driving it into the lake.”

According to Peerwani’s autopsy report, Howard’s body “had all the stigmata of drowning!,] including presence of frothy blood-tinged edema fluid in the tracheo-bronchial tree, wrinkling of palms and soles and severe visceral congestion.” In the autopsy report, Peerwani listed the cause of Howard’s death as “severe occlusive coronary atherosclerosis with terminal drowning (lake).” During his deposition, Peerwani explained that what he meant by “terminal event” was that “besides [Howard’s] cardiac problem[,] there was another cause that intervened and caused him to die.” Peerwani said that this cause was asphyxiation by drowning. Peerwani’s report also concludes that the manner of death was an “accident.” Peerwani admitted that he could not tell from the autopsy results whether Howard had in fact suffered a cardiac conduction problem or other type of heart problem before entering the lake or while in the lake.

To rebut Peerwani’s theory that Howard’s heart condition had played a role in his death, Lela called Dr. Kuban, a specialist in internal medicine. Kuban agreed that the cause of Howard’s death was drowning, but disputed whether there was evidence to conclude that Howard’s heart condition contributed to his death. More specifically, Kuban testified about the effects that the two most serious heart conduction problems have on the victim. Ku-ban explained that the most serious type of cardiac conduction problem is ventribular fibrillation, which causes the heart to stop beating entirely and produces sudden, immediate death. Ventricular tachycardia, on the other hand, allows the heart to continue beating but causes the individual to become extremely weak to the point that they cannot stand or walk. Kuban said that if Howard had experienced either of these conditions, he would not have been able to get his pickup window open and get out of his truck. Kuban said that there were other heart conduction problems that could cause an individual to lose consciousness, but those were not lethal conditions. Finally, according to Kuban, if Howard had experienced a heart attack, there would be observable findings evident in the autopsy, such as changes in the heart muscle tissue or clogged arteries.

In support of its contention that Howard’s death was not caused by an accident independent of natural causes, JCPenney relies on Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110, 112 (Tex.1965). In Mutual Benefit Health, the beneficiary sought to recover benefits under a policy that limited recovery for accidental deaths resulting “independent of other causes.” See id. at 112. The supreme court held that recovery was barred because all the evidence at trial indicated that the decedent’s death resulted from a pre-existing heart disease and overexertion on a hot day, which together caused his heart to fibrillate. See id. at 111-12.

Six years after Mutual Benefit Health, the supreme court decided Stroburg, 464 S.W.2d at 829. In Stroburg, the decedent died in a one-car collision in which he received extensive bodily injuries, including several broken bones and major internal injuries. See id. at 828. In the decedent’s policy, the insurer agreed to insure against loss of life resulting “directly and independently of all other causes from bodily injuries caused by accident.” Id. After the decedent’s son filed as beneficiary of the policy, the insurer denied coverage, alleging that the son had failed to show that his father’s death was caused by an accident independent of other causes. See id. at 828-29. The jury found in favor of the son, and the insurer appealed.

The Austin Court of Appeals determined that the decedent’s bodily injuries would not have occurred but for the insured’s preexisting bleeding ulcer that caused him to faint while driving. See Ins. Co. of N. Am. v. Stroburg, 456 S.W.2d 402, 406 (Tex. Civ.App.—Austin 1970), rev’d, 464 S.W.2d 827 (Tex.1971). As a result, the appellate court concluded that the decedent’s ulcer was a concurrent cause of death that precluded coverage. See id. at 407.

The Supreme Court of Texas reversed, noting that the intermediate appellate court’s decision was based upon the erroneous conclusion that if the decedent’s ulcer caused the accident, it must have been a cause of his resulting bodily injuries and death. See Stroburg, 464 S.W.2d at 830. The court held that absent a clause excluding liability when disease or sickness contributed to the loss “directly or indirectly,” a previous medical condition would preclude recovery only when it was the proximate rather than the indirect or remote cause of the loss. Id. at 831-32 (emphasis added). Based on the record, the Stro-burg court determined that the evidence did not conclusively establish that the decedent’s ulcer was a proximate cause of his death and that there was some evidence to support the jury’s verdict. See id. at 832.

In examining these cases, it is clear that Howard’s death is more akin to the situation in Stroburg than that in Mutual Benefit Health. Based on the record in this case, the jury was clearly entitled to find that the evidence indicating that Howard may have had a non-lethal coronary event that may have contributed to the accident was, at best, evidence of a remote rather than proximate cause of Howard’s death.

There was some evidence from which the jury also could have reasonably concluded that drowning was the sole proximate cause of Howard’s death. Peerwani and Kuban agreed that the actual cause of Howard’s death was drowning. Both experts also agreed that had Howard experienced a heart attack, there would have been some evidence of that in the autopsy results. Additionally, the jury could have decided that Howard did not suffer either of the two most lethal heart conduction problems based on Kuban’s testimony that one of those conditions caused immediate death and the other would have rendered Howard so severely weakened that he would be unable to extract himself from his submerged pickup. The jury could also have reasonably believed Kuban’s testimony that none of the other heart conduction problems that could have caused Howard to lose consciousness were lethal and, thus, could not have been a concurrent cause of Howard’s death.

After reviewing the record, we hold there was some evidence to support the jury’s verdict. See Nat’l Life & Accident Ins. Co. v. Franklin, 506 S.W.2d 765, 767 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref'd n.r.e.) (holding that epileptic seizure causing insured to fall and lose consciousness in bathtub, where insured drowned, was not a “cause” of insured’s death so as to exclude insurance coverage). Additionally, based on the record in this case, we cannot say that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See id. at 767. Issue one is overruled.

VI. DID HOWARD INCUR AN INJURY WHILE OCCUPYING HIS VEHICLE?

In its second issue, JCPenney argues that Lela failed to prove that Howard was “occupying” his vehicle at the time of his injury, as required by the policy. Howard’s policy defined “occupying” as “in or in direct contact with” the vehicle. At trial, the evidence indicated that Howard did not suffer any traumatic injury to his body when his truck entered the water. Additionally, Pickett and Hopper testified that they saw Howard surface after the truck became completely submerged. Pickett also testified that he believed Howard drowned after Pickett saw him go underwater for the last time. From Pickett and Hopper’s testimony, JCPenney surmises that there was no evidence, and alternatively, insufficient evidence, that Howard suffered any injury while occupying his vehicle. Lela, on the other hand, argues that the jury could have inferred from the evidence that Howard ingested enough water while still in his pickup to begin drowning. We agree with Lela. First, as noted above, both Peerwani and Kuban agreed that the ultimate cause of Howard’s death was drowning. In addition, Kuban testified that drowning is a bodily injury caused when the victim’s lungs begin to fill up with fluid. Kuban also said that drowning occurs over a period of time, rather than immediately.

Furthermore, according to the autopsy report, at the time of Howard’s death, he was sixty-five years old, was six feet four- and-one-half inches tall, and weighed 225 pounds. On the morning that he died, Howard was wearing a long-sleeve shirt, jeans, shoes, and a jacket. His body was found fully clothed. According to Lela’s uncontroverted testimony, Howard always wore his seat belt when driving and, thus, was most likely wearing it when his truck entered Lake Granbury.

Tim Hatch, a member of the Fort Worth Fire Department’s search and rescue unit, testified about the obstacles Howard faced to get out of his truck as it was sinking into Lake Granbury. Hatch said that when a vehicle enters a body of water and begins to submerge, the pressure from the water prevents the doors from opening. If the vehicle’s windows were closed, Hatch said it would be difficult for a passenger to open the window due to “tremendous pressure” from the water on the outside. He also testified that to open a window, the passenger would have to exert “a lot” of pressure on the handle. Even then, the passenger would be unable to get out until the pressure inside the vehicle was equalized, i.e., until the vehicle was completely full of water. Finally, Hatch opined that any person inside a vehicle that was submerged was in perilous danger and the colder the water, the greater the danger.

Evidence adduced at trial indicated that the water in Lake Granbury was extremely cold on the morning of Howard’s death. Local weather reports introduced into evidence indicated that the water temperature was approximately fifty-four degrees. Dan Ames, a volunteer rescue diver who went into the water shortly after Howard disappeared testified that the water was so cold it took his breath away. Ames estimated the water temperature to be approximately thirty-five to forty-two degrees Fahrenheit.

There was also testimony about how long Howard’s truck was under water before he appeared. The uncontradicted evidence indicated that the cab of Howard’s truck was almost completely submerged within several seconds after hitting the water. Additionally, there was testimony that two to two-and-one-half minutes elapsed from the time the cab of Howard’s truck went underwater until Howard was seen by the eyewitnesses.

There was contradictory evidence from two eyewitnesses about the length of time that Howard was seen in the water. Hopper acknowledged telling the police that Howard had treaded water for two to three minutes before he went under, but admitted that his estimation could have been wrong. At trial, Hopper estimated that the time might have been closer to forty-five seconds to one minute and fifteen seconds. The other eyewitness, Pickett, testified that he saw a dark shadow in the water that appeared to be a person. Pickett said that the person might have been treading water, but there was little arm movement. Pickett said that when he turned away to speak to Hopper, the shadow disappeared. As he continued to watch, Pickett saw a head pop back out of the water, but there was no arm movement this time. Pickett said that he saw the head above water for two to three seconds the first time and from one to two seconds the next time.

Finally, Granbury Police Officer Mitch Galvan testified that he arrived at the scene one minute after Officer Casey issued a call for assistance. Galvan said the taillights of Howard’s truck were already underwater and that the water was bubbling up. Galvan was talking to Casey when he heard one of the bystanders (apparently Hopper or Pickett) shout “there he is, he’s trying to swim.” Galvan said that the bystander was pointing toward the bubbling in the water, but Galvan did not see anyone out there. About twenty minutes later, Galvan found Howard’s body against the creek bank.

As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962); Ambassador Dev. Corp. v. Valdez, 791 S.W.2d 612, 618 (Tex.App.—Fort Worth 1990, no writ). The jury may also draw reasonable inferences from the facts and choose between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex.1973); Valdez, 791 S.W.2d at 618. We cannot overturn the fact finder’s ruling unless only one inference can be drawn from the evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992).

On the face of this record, it is clear that the jury could have believed from the evidence that Howard ingested sufficient water to begin drowning while still in his pickup. Although conflicting inferences could be drawn from the evidence, we are not the fact finder, and we cannot substitute our judgment for that of the jury. Because there was some evidence to support the jury’s verdict, and because the evidence to the contrary is not so overwhelming to make the jury’s finding manifestly unjust, we overrule issue two.

VII. DR. KUBAN’S TESTIMONY

In its final issue on appeal, JCPenney claims that the trial court abused its discretion in allowing Lela’s expert witness to testify because (1) he was not qualified as an expert in pathology and (2) Lela failed to show that his testimony was reliable under E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex.1995).

A. Qualifications

In this case, JCPenney contends that the trial court abused its discretion in determining that Kuban was qualified to testify about Howard’s cause of death because he was not a pathologist. Additionally, JCPenney complains that Kuban did not read any pathology articles in preparation for his testimony. Finally, JCPenney argues that Kuban was not qualified to testify because he acknowledged that there were pathology journals and articles that analyzed and provided error rates for his theories, “but admitted] he was not familiar with the names or even contents of these works.”

A finding that a witness is qualified to testify as an expert is a matter within the trial court’s discretion, and such finding will not be disturbed absent a clear abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). “The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.” Id. (citing Robinson, 923 S.W.2d at 558). The party offering the expert’s testimony bears the burden of proving that the witness is qualified under Rule 702 of the Texas Rules of Evidence. Tex.R.Evid. 702; see Broders, 924 S.W.2d at 151-52.

Rule 702 requires that an expert be qualified “by knowledge, skill, experience, training, or education” and that his testimony will assist the trier of fact. Tex. R.Evid. 702; United Blood Servs. v. Longoria, 938 S.W.2d 29, 30-31 (Tex.1997). Whether an expert is qualified is a preliminary question to be decided by the trial court. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). The offering party must demonstrate that the witness possesses special knowledge on the precise matter that he is called to testify about. Id. at 718-19.

A review of the record indicates that the trial court did not abuse its discretion in determining that Kuban was qualified as an expert in this case. Kuban was called to testify about two primary issues: (1) the physical capabilities of a person experiencing a cardiac conduction problem or a heart attack; and (2) the physical findings that would show up on an autopsy after a cardiac event in which the victim died. Based on the autopsy report, he also testified about the cause of Howard’s death.

Kuban has a Doctor of Osteopathy from the University of North Texas Health Science Center and is board certified with the American College of Osteopathic Internists. He has been in private practice for thirteen years and specializes in internal medicine, including the cardiac and respiratory systems. In his practice, Kuban is routinely called upon to make cause of death determinations. Kuban said that he often uses autopsy reports and pathologist reports to determine a patient’s cause of death, and relies on pathologist reports “almost daily” to aid him in forming his own medical opinions.

Kuban testified that certain physical manifestations would be evident on an autopsy to indicate that a person had a heart attack and that he was familiar with those indicia. Kuban was also knowledgeable about what physically happens to a person who drowns and the signs in an autopsy report that shows the victim drowned. Finally, Kuban testified that he had reviewed Peerwani’s autopsy report and the statements from witnesses at the scene and felt qualified to give an opinion on whether, based on a reasonable medical probability, coronary artery disease was a cause of Howard’s death.

Contrary to JCPenney’s contention, Ku-ban did not testify that there were pathology articles testing his opinions that he had not reviewed. Rather, after a confusing series of questions, JCPenney’s attorney asked whether there were studies and testing to show incidents of heart conditions that caused a loss of consciousness. Kuban agreed that such studies and testing existed. However, Kuban said there was no way to directly test for a coronary conduction abnormality after a person died. Kuban said that for this reason, it was impossible to do a peer review of or determine an error ratio on someone’s theory that the patient had experienced a coronary conduction problem that caused the patient’s death. Kuban never testified that a heart condition such as Howard’s could not have caused him to lose consciousness. Instead, he said, under the facts of this case, it could not be determined within a reasonable medical probability that Howard had experienced a coronary conduction problem that caused him to become unconscious and lose control of his truck.

Finally, while Kuban explained that while he did not read pathology texts because he was not a pathologist, he testified he did read medical journals that discussed pathology as it relates to the fields of cardiology and pulmonary medicine. Ku-ban also said he daily reviewed pathology reports, cardiology texts, and pulmonary texts. Finally, Kuban testified he had reviewed articles on the subject of pathology related to cardiac heart disease, coronary atherosclerosis, and conduction abnormalities in preparation for his testimony. Based on this record, we cannot say the trial court abused its discretion in determining that Kuban was qualified to testify.

B. Was Kuban’s Testimony Reliable?

Next, we must ascertain whether Kuban’s opinions were reliable. Rule 702 vests a trial court with the threshold responsibility of ensuring that an expert’s testimony rests on a rehable foundation. Gammill, 972 S.W.2d at 728. In meeting that responsibility, a trial court is not to determine whether an expert’s conclusions are correct, but only whether the analysis used to reach those conclusions is rehable. Id. In Robinson, the Texas Supreme Court espoused six factors that it believed would be helpful in determining whether expert testimony is reliable: (1) the extent to which the theory underlying the expert’s testimony has been tested; (2) the extent to which the technique rehes upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses which have been made of the theory. Robinson, 923 S.W.2d at 556-57.

In this case, JCPenney contends that Kuban’s testimony should have been excluded because it could not meet any of the factors set forth in Robinson to determine the reliability of his testimony. Recently, the Texas Supreme Court addressed the issue of scientific and nonscientific evidence under Robinson and determined that while all expert testimony must be reliable before it may be admitted, the factors affecting reliability as outlined in Robinson are not applicable to all expert testimony. Gammill, 972 S.W.2d at 727. The Gammill court explained the inherent difficulty in assessing the reliability of experience-based testimony by its reference to the “beekeeper analogy” found in Berry v. City of Detroit:

[I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts.
On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have.

Gammill, 972 S.W.2d at 724-25 (quoting Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994)) (emphasis omitted).

As is evident from the discussion of Kuban’s qualifications above, his opinions are based largely upon his experience and observations in the medical field. Thus, his opinions are clearly not the type of testimony that can be easily evaluated under the Robinson factors. In cases such as this, Gammill directs us to determine whether there is an “analytical gap” between the expert’s opinion and the basis on which it is founded. Gammill, 972 S.W.2d at 726. Here, Kuban testified that he treats people with coronary artery disease on a daily basis and regularly treats persons actually in the throes of a heart attack or a coronary conduction problem. Kuban said that based on his observations and experience, he was knowledgeable about how both of these medical conditions physically affect the human body and what a person experiencing either of those conditions would be capable of doing. Kuban then offered his medical opinion on what Howard would have been capable of physically doing if he had experienced a serious heart conduction problem. Finally, Kuban testified that he was experienced in reviewing pathologist reports and making cause-of-death determinations from those reports. Kuban said he reviewed Peer-wani’s autopsy report and drew conclusions from that report regarding the cause of Howard’s death.

This evidence, as well as the evidence set forth above regarding Kuban’s qualifications, establishes that his testimony was closely related to his experiences in the medical profession. Accordingly, we conclude that the trial court’s decision that Kuban’s testimony was reliable was not made without resort to guiding rules and principles and, thus, was not an abuse of discretion. Issue three is overruled.

VIII. CONCLUSION

Having overruled JCPenney’s issues, we affirm the trial court’s judgment.

      . There was evidence at trial that the weather was very cold that morning. From this, the jury could have inferred that Howard’s pickup windows were most likely closed when his truck went into the lake. When his truck was discovered in the water, the driver’s side window was open.

      . We note that JCPenney cites several other cases in support of its argument, but they are similarly distinguishable. See Standard Life & Accident Ins. Co. v. Roberts, 318 S.W.2d 757, 759 (Tex.App.—Amarillo 1958, writ ref'd n.r.e.); Combined Am. Ins. Co. v. McCall, 497 S.W.2d 350, 352 (Tex.Civ.App.—Amarillo 1973, writ, ref'd n.r.e.); Community Life & Health Ins. Co. v. McCall, 497 S.W.2d 358, 364 (Tex.Civ.App.—Amarillo 1973, writ ref'd n.r.e.); Republic Nat’l Life Ins. Co. v. Bullard, 399 S.W.2d 376, 377 (Tex.Civ.App.—Houston 1966, writ ref'd n.r.e.).

      .JCPenney also sirgues that Hopper testified that Howard did not drown inside his truck. At trial, JCPenney’s attorney asked Hopper, ‘‘All right. It’s-if this gentleman drowned, it’s clear to you, is it not, that he did not drown inside of his pickup truck?” Hopper responded, "No, sir.” Because of the awkward wording of counsel’s question, it is unclear whether Hopper was agreeing or disagreeing with counsel’s statement.

      . We note that the policy language is clear that the insured did not have to actually die in the vehicle. The policy expressly covers death caused by an accidental injury sustained while occupying an automobile, provided that death occurs within 365 days of the accident.

      . As noted above, the evidence at trial indicated that because of the cold weather, Howard’s truck windows were most likely closed when his truck went into the lake.

      . It was Kuban's opinion that: (1) Howard did not experience a heart attack because there would have been evidence of that in the autopsy findings; (2) no heart conduction problem could have been a concurrent cause of Howard’s death because the two most serious problems would have rendered him unable to escape his vehicle as he did and the other problems were not lethal; and (3) there simply was no evidence in the autopsy from which one could conclude that Howard actually experienced a cardiac conduction problem.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice. RICHARDS, Justice,

license: Public Domain

text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant, v. Derrick WARREN, Appellee.
    No. 2-99-346-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 16, 2000.
    Rehearing Overruled Dec. 21, 2000.

      Johnson & Sylvan, P.C., James K. Campbell, Dallas, for Appellant.
    Derrick Warren, Fort Worth, for Appel-lee.
    Before CAYCE, C.J.; LIVINGSTON and RICHARDS, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Old Republic Insurance Company (appellant) appeals from a jury verdict in favor of Derrick Warren (appellee) on ap-pellee’s claims for benefits under the Texas Worker’s Compensation Act. We affirm.

STATEMENT OF FACTS

Appellee was injured at work on July 19, 1997. He received temporary income benefits from July to October 1997, at which time a carrier-selected physician determined he had reached maximum medical improvement. This physician gave appel-lee a 13 percent impairment rating as of October 28, 1997. At appellee’s request, the Texas Worker’s Compensation Commission (TWCC) appointed a doctor, Dr. Andrew Mager, to perform another examination. Dr. Mager filed a report indicating appellee had reached maximum medical improvement on October 1, 1997 with a 4 percent impairment rating.

Appellee’s treating physician prepared a report giving appellee a 10 percent impairment rating as of April 14, 1998. The parties participated in a benefit review conference to mediate their disagreement on the date of maximum medical improvement and the percentage of impairment. Because the parties faded to resolve these issues, a contested case hearing was held. After that hearing, the hearing officer found that appellee had reached maximum medical improvement on October 1, 1997 with a 4 percent impairment rating. Ap-pellee appealed to the TWCC appeals panel, which affirmed the hearing officer’s findings on September 3, 1998. Appellee appealed to the 17th District Court of Tar-rant County on September 17, 1998. The district court overruled appellant’s plea to the jurisdiction and submitted the case to a jury.

The jury found that appellee had reached maximum medical improvement on April 14, 1998 with an impairment rating of 10 percent. The trial court overruled appellant’s motion for judgment notwithstanding the verdict and rendered judgment in accordance with the jury’s findings on July 29, 1999. Appellant’s motion for new trial was overruled by operation of law.

ISSUES

On appeal, appellant challenges the trial court’s ruling on its pleas to the court’s jurisdiction (Issue 1); the court’s submission of two special issues as a comment on the weight of the evidence (Issue 2); and the legal and factual sufficiency of the evidence to support the jury’s answers (Issues 3-6). Additionally, appellant’s counsel has a post-judgment motion for attorney’s fees pending in this court.

THE TRIAL COURT’S JURISDICTION

In its first issue appellant claims the trial court erred in denying its plea to the jurisdiction as well as its post-verdict motion for judgment notwithstanding the verdict. Appellant claims the trial court lacked jurisdiction because appellee only asserted claims not tried at the administrative level and failed to challenge the only two issues decided in the administra-five proceeding before the 40th day after the TWCC appeals panel issued its ruling.

Under section 410.252 of the Texas Labor Code, suit must be filed no later than 40 days after the appeals panel’s decision is filed with the TWCC hearings division. Tex.Lab.Code Ann. § 410.252 (Vernon 1996). According to appellant, because section 410.301 limits the scope of a trial court’s review to those issues decided by the appeals panel, and appellee’s original and amended petitions did not refer to the appeals panel decision or the two issues it decided until more than 40 days had passed, jurisdiction in the trial court did not attach.

The record shows the appeals panel’s decision was filed with the director of the hearings division on September 3, 1998. Appellee’s original petition was filed September 17, 1998. His first and second amended petitions were filed September 18 and October 7, 1998 respectively. The 40th day for filing the original petition expired on October 13, 1998. Appellant filed its plea to the jurisdiction on October 23,1998 and, in response, appellee filed his third amended petition, which included specific references to the appeals panel’s decision and the two issues it addressed. Appellee’s third amended petition was filed on December 7, 1998 after the expiration of the 40th day.

Because the question of subject matter jurisdiction is a question of law, we review the trial court’s ruling under a de novo standard. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144,119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). “Subject matter jurisdiction is never presumed and cannot be waived.” McGuire v. McGuire, 18 S.W.3d 801, 804 (Tex.App.—El Paso 2000, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993); Gonzalez v. Sanchez, 927 S.W.2d 218, 221 (Tex.App.—El Paso 1996, no writ); Abderholden v. Morizot, 856 S.W.2d 829, 832 (Tex.App.—Austin 1993, no writ); City of El Paso v. Madero Dev., 803 S.W.2d 396, 400 (Tex.App.—El Paso 1991, writ denied), cert. denied, 502 U.S. 1073, 112 S.Ct. 970, 117 L.Ed.2d 135 (1992); Armstrong v. West Tex. Rig Co., 339 S.W.2d 69, 71 (Tex.Civ.App.—El Paso 1960, writ ref'd n.r.e.)).

Labor code section 410.252 provides that a party seeking judicial review of a TWCC appeals panel decision must file suit not later than the 40th day after the appeals panel’s decision is filed. Tex.Lab.Code Ann. § 410.252. Further, section 410.302 limits judicial review “to issues decided by the commission appeals panel.” Id. § 410.302. This section also requires that “the pleadings must specifically set forth the determination of the appeals panel by which the party is aggrieved.” Id.

Cases clearly support appellant’s position that filing suit in the district court within 40 days is mandatory and jurisdictional. St. Paul Fire and Marine Ins. Co. v. Meador, 990 S.W.2d 362, 365 (Tex.App.—Fort Worth 1999, no pet.); Texas Workers Comp. Comm’n v. Hartford Accident and Indem. Co., 952 S.W.2d 949, 952 (Tex.App.—Corpus Christi 1997, pet. denied); Walker v. Argonaut Southwest Ins. Co., 929 S.W.2d 499, 500-01 (Tex.App.—Texarkana 1996, no writ). However, it is undisputed that appellee filed suit in the trial court within the 40-day period. No case has held that a plaintiffs failure to follow the strictures of section 410.302 divests a district court of jurisdiction when the plaintiffs original petition was timely filed. We also decline to do so.

Rather, we hold that section 410.302 does not create a jurisdictional requirement, but simply defines the scope of issues that may be judicially reviewed after an appeals panel decision. Generally, pleading defects are handled by special exceptions, just as occurred here. See Tex.R.Civ.P. 91. After appellant filed its plea to jurisdiction and its special exceptions, appellee amended his petition to more clearly meet section 410.302’s requirement to limit the appeal to the issues decided by the appeals panel. Issue one is overruled.

COMMENT ON WEIGHT OF EVIDENCE

Appellant next complains about the trial court’s submission of jury questions one and two, which it claims amounted to a comment on the weight of the evidence.

Question number one was submitted as follows:

On what date did Derrick Warren reach maximum medical improvement from his compensable injury of July 19, 1997?
You are instructed that the opinion of the designated doctor as to whether one has reached maximum medical improvement, and when, is entitled to presumptive weight and you shall base your determination of whether Mr. Warren has reached maximum medical improvement, and when, on the opinion of the designated doctor unless the great weight of other medical evidence is to the contrary.
You are further instructed that medical evidence, not lay testimony, is the evidence that is required to overcome the designated doctor’s opinion.
Answer by selecting one of the following dates:
Question number two stated:
What is Derrick Warren’s impairment rating as a result of his compensable injury of July 19,1997?
You are instructed that the opinion of the designated doctor as to the impairment rating shall have presumptive weight and you shall base the impairment rating on that opinion unless the great weight of other medical evidence is to the contrary.
If you determine that the great weight of other medical evidence is contrary to the designated doctor’s opinion, then you shall adopt the impairment rating of one of the other doctors.
Answer by selecting one of the following percentages of the whole body:

Appellant complains these questions and instructions failed to instruct the jury that the opinion of the doctor designated by the TWCC was entitled to “presumptive weight” because the jury was given multiple choice answers for each question. Appellant contends the three-part multiple choice answers indicate that the possible choices were co-equal and therefore constituted a comment on the weight of the evidence. We disagree.

Both question one and two are preceded by specific definitions as well as instructions that quite clearly follow the law by instructing the jury to give the statutorily “designated doctor’s” opinion presumptive weight. Because the trial court did not err in either of these instructions, we overrule appellant’s second issue.

LEGAL SUFFICIENCY

In appellant’s third and fifth issues it complains that there is legally insufficient evidence to support the jury’s finding that appellee reached maximum medical improvement on April 14, 1998 and to support the jury’s finding that appellee’s impairment rating was 10 percent.

In determining a “no-evidence” issue, we are to consider all of the evidence in the light most favorable to the party in whose favor the judgment has been rendered, and to indulge every reasonable inference from the evidence in that party’s favor. Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow Pham., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law. Formosa Plastics Corp., 960 S.W.2d at 48; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996).

A “no-evidence” issue may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Merrell Dow Pharm., 953 S.W.2d at 711 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (I960)). There is some evidence when the proof supplies a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992).

Here, the medical testimony is conflicting. TWCC’s designated doctor, Dr. Mag-er, testified that appellee reached his maximum medical improvement on October 1, 1997. Two other medical experts disagreed. Appellee’s doctor, Dr. Shestha opined that appellee reached maximum medical improvement on April 14,1998 and Dr. Osborne (selected by appellant) determined the date to be October 28, 1997.

Dr. Taylor, appellee’s treating physician, also supplied evidence and reports that supported Dr. Osbourne’s conclusion of a 13 percent impairment rating at maximum medical improvement on October 28, 1997. Thus, while the TWCC’s designated doctor proposed a 4 percent impairment rating, three others supported ratings of 10, 13, and 13 percent.

As to the date of maximum medical improvement, Dr. Mager determined it was October 1, 1997, while Drs. Osborne and Taylor concluded it was October 28, 1997. Dr. Shestha opined it was April 14, 1998. Some of this additional medical evidence, coupled with appellee’s own testimony, could have undermined the jury’s confidence in the presumption to be accorded the designated physician’s opinions.

Although conflicting, this evidence is more than a scintilla of evidence and does not show the complete absence of a vital fact. Therefore, we overrule appellant’s legal sufficiency challenges in issues three and five.

FACTUAL INSUFFICIENCY

In appellant’s issues four and six, appellant challenges the factual sufficiency of the evidence to' support the jury’s same two findings, the April 14, 1998 date of maximum medical improvement and his impairment rating of 10 percent.

When a party complains on appeal that the evidence is “insufficient” to support a fact finding the party must show that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

We must review all the evidence and determine whether the findings are so against the great weight and preponderance as to be manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g).

In addition to the evidence discussed under issued three and five, appellee testified that his one office visit with Dr. Mager was “the most quickest [sic] doctor visit that I have ever had in my whole entire life,” lasting under ten minutes. Appellee also testified that Dr. Mager did not take any measurements, even though he based some of his medical concessions on measurements.

Even though Dr. Mager’s opinions, as those of TWCC’s designated doctor carried presumptive weight, in light of all the evidence, we cannot say the jury’s findings were so against the great weight and preponderance of the evidence to be manifestly unjust. We overrule appellant’s fourth and sixth issues.

ATTORNEY’S FEES

Post-submission, appellant filed a motion for approval of appellate attorney’s fees. Appellant contends it is entitled to attorney’s fees under section 408.222 of the Texas Labor Code. Tex.Lab. Code Ann. § 408.222. We have already denied this request once by written order dated March 9, 2000. Appellant has filed a motion to reconsider our ruling March 9 along with a second motion for approval of attorney’s fees. While we agree that the labor code allows for the recovery of attorney’s fees in connection with defending an insured in a worker’s compensation claim, that fee should be approved by the TWCC or “court.” Id. The statute does not specify which court. Appellant is asking this court to determine the propriety and the reasonableness of the fees with no motion for attorney’s fees having been previously filed with the TWCC or the trial court below. We believe, however, that this issue should have been submitted either to the TWCC or to the trial court for determination. Id. Any prospective award for appealing a TWCC or trial court decision could be conditionally determined by the trial court. We therefore deny appellant’s motion to award or determine attorney’s fees.

Having found no error in the trial court’s judgment we affirm.

RICHARDS, J., filed a concurring and dissenting opinion.

RICHARDS, Justice,

concurring and dissenting.

I concur with the majority in the decision to affirm the trial court’s judgment, but I respectfully dissent to the denial of approval of attorney’s fees for appellant’s counsel on appeal.

The majority states that the Texas Labor Code provides that the issue of appellate attorney’s fees be submitted either to the TWCC or to the “court,” and that “[a]ny prospective award for appealing a TWCC or trial court decision could be conditionally determined by the trial court.”

Not only does the statute in question not support the interpretation suggested by the majority, but even a cursory reading of its provisions yields the exact opposite conclusion. See Tex.Lab.Code Ann. § 408.222 (Vernon 1996). By its express language, the statute provides that an attorney seeking approval of attorney’s fees must provide written evidence of the “time spent and expenses incurred.” Id. § 408.222(b)(1) (emphasis added). This language is retrospective in nature — not prospective. That is, the attorney must actually spend time and incur expenses before requesting approval of his or her attorney’s fees. The majority opinion ignores this mandatory language as though the statute provided that the appellate attorney could submit written evidence to the trial court of an estimate of time to be spent and expenses anticipated in the appeal. Regardless of the logical appeal of the procedure suggested by the majority, it is not the law, given the express language of the legislature to the contrary.

Moreover, section 408.222 empowers the TWCC or “court” to determine what is reasonable and necessary. Section 408.221, the companion provision relating to approval of attorney’s fees for the claimant’s attorney, also requires approval of necessary and reasonable attorney’s fees by the TWCC or “court.” Id. § 408.221. There is nothing within the language of either section 408.221 or section 408.222 that limits the meaning of court to “trial court.” Originally, only the Workers’ Compensation Board had authority to approve reasonable attorney’s fees for representing a claimant. Act of March 28,1917, 35th Leg., R.S., ch. 103, part 1, §§ 7c-7d, 1917 Tex.Gen.Laws 269, 273, amended by Act of May 5, 1937, 45th Leg., R.S., ch. 261, § 1, 1937 Tex.Gen.Laws 535, 535-36, amended by Act of June 6, 1957, 55th Leg., R.S., ch. 397, § 1, 1957 Tex.Gen. Laws 1186, 1187-88, amended by Act of June 1, 1959, 56th Leg., R.S., ch. 355, § 2, 1959 Tex.Gen.Laws 778, 780, amended by Act of March 18, 1969, 61st Leg., R.S., ch. 18, §§ 6, 7, 1969 Tex.Gen.Laws 48, 51, amended by Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 4.09, 1989 Tex.Gen.Laws 1, 34-35 (current version at Tex.Lab.Code Ann. § 408.221). However, prior to codification of section 408.221 in the labor code, the legislature’s amendments required “such fee for services so rendered to be fixed and allowed by the trial court in which such matter may be heard and determined.” Act of March 18, 1969, 61st Leg., R.S., ch. 18, §§ 6, 7, 1969 Tex.Gen.Laws 48, 51-52. In 1989, when the Legislature amended the approval requirement as it applied to claimants’ attorneys, and added the provision relating to attorneys who represent carriers, it removed the reference to “trial court.” See Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 4.09, 1989 Tex.Gen.Laws 1, 34-35. I would hold that by so doing, the Legislature intended to broaden the jurisdiction over approval of attorney’s fees to include the appellate courts. The fact that section 408.222 only authorizes approval of fees for “time spent and expenses incurred” lends further support to this proposition. Tex.Lab.Code Ann. § 408.222(b)(1).

The majority’s decision denying approval of fees to appellate counsel has the effect of punishing counsel for his decision to follow the letter of the law and submit his accounting of “time spent and expenses incurred” only after his time was spent and after his expenses were incurred. To hold that this accounting was due before any time was spent and before any expenses were incurred is improper and in direct contravention of the procedure required by the Legislature.

For these reasons, I would respectfully hold that we have jurisdiction to consider attorney Campbell’s motion, and that we have the option to either approve or not approve the fees requested, or to abate the appeal and remand the question of approval of attorney’s fees to the trial court for determination.

      . Appellant also challenged the trial court’s jurisdiction in its special exceptions in its original answer filed simultaneously with the plea to the jurisdiction. It is unclear from the record how or if the trial court ruled on appellant’s special exceptions, but the court specifically denied appellant’s plea to the jurisdiction by written order.

      . We note section 410.302 is entitled "Limitation of Issues,” whereas section 410.252 is entitled "Time for Filing Petition, Venue.” Id. §§ 410.302, 410.252.

      . The labor code allows the parties to choose a designated doctor by mutual agreement, or if they are unable to agree, it provides for the TWCC to designate a doctor. Tex.Lab.Code Ann. §§ 408.122(c), 408.125.


author: MARGARET GARNER MIRABAL, Justice.

text:
    Donald Peter SUNBURY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-98-01357-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 22, 2000.

      Don Becker, Houston, for Appellant.
    Peyton Z. Peebles, III, John B. Holmes, Houston, for State.
    Panel consists of Justices MIRABAL, ANDELL, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MARGARET GARNER MIRABAL, Justice.

Appellant, Donald Peter Sunbury, pled guilty to robbery and proceeded to trial before the jury on punishment only. The jury assessed punishment at confinement for 15 years. On appeal, appellant seeks reversal and remand as to punishment only, asserting in a single issue that the trial court erred by excluding evidence offered by appellant showing he had been convicted of two prior robberies and sentenced in each. In an unusual twist, the State sought to suppress testimony about the two prior convictions. We reverse the portion of the judgment imposing punishment.

I. The Excluded Testimony

A. Motion in Limine

Before voir dire, the trial court granted the State’s oral motion in limine to exclude any mention of the outcome of two other robbery cases involving appellant. Both cases had been heard, within days of one another, by the same trial court as the appealed-from robbery.

Specifically, the State sought to exclude the sentences in the following two cases: (1) trial cause number 783483, in which a jury found appellant guilty of robbery and assessed punishment at 9 years confinement on October 28, 1998; and (2) trial cause number 783316, in which appellant pled guilty to robbery, and the trial judge assessed punishment at 20 years confinement on November 2,1998.

At the start of testimony in the third trial that began November 3, 1998, the State reurged its motion, as follows:

STATE: As a matter of housekeeping, I again urge my motion in limine that [defense counsel] not allude [to], mention nor in any way question the witnesses as to what they have previously testified to in a prior trial or the fact that Mr. Sunbury has been previously found guilty or that he has previously plead guilty to one of these cases to the Court and that these are not final convictions and they are not necessary to be brought in front of the jury’s attention and not proper.
TRIAL COURT: Of course, if he on cross-examination feels that there is a discrepancy he may certainly refer to a prior hearing but you must not refer specifically to previous trials or anything of that kind. You may, if you find a discrepancy, you may refer to a previous hearing in a general fashion.

The State then presented its case, showing appellant committed a string of eight robberies, including the robbery then on trial, during a two-week period from May 3 to May 16,1998.

B. Appellant’s Evidentiary Request

Before appellant took the stand, his attorney requested that appellant be allowed to inform the jury that he had already been sentenced in two of the robberies. The trial court refused to permit this sentencing testimony.

Appellant asserts that he received a substantially harsher sentence because the jury was operating under the mistaken impression that he had not been punished for any of the robberies. Appellant repeatedly and clearly explained his trial strategy to the trial judge and objected to the exclusion of the evidence, demonstrated by the following:

DEFENSE COUNSEL: We’re going to have Mr. Sunbury take the stand and what we want to do is have Mr. Sunbury testify to the fact that he does have prior convictions in two of the cases, that were already heard in this case.
First of all, we ask the Court to take judicial notice of the fact that Mr. Sun-bury received nine years in one case, 20 years in another case, pursuant to Texas Code.
DEFENSE COUNSEL: ... [N]ot letting Mr. Sunbury tell the jury that he’s already been punished in two of these cases is misleading to the jury in their attempt to decide what punishment is appropriate....
DEFENSE COUNSEL: ... [It is] extremely misleading not to let the jury know what happened in two of the prior cases tried in this court, misleading to the jury, not enable them to arrive at appropriate sentence. We would like for him, when he’s on the stand, to testify — the State will have a chance to cross examination, apprise the jury of the fact that the convictions are not final.
TRIAL COURT: What leave are you requesting?
DEFENSE COUNSEL: Pursuant to the State’s Motion in Limine that we be permitted to ask Mr. Sunbury about his previous cases, the disposition of those cases, and the fact that he has plead [sic] guilty on one, found guilty in another, and he’s been sentenced in both cases, once by the Court and once by the jury, let the jury know exactly what he got. It would be greatly helpful to the jury, Judge.
DEFENSE COUNSEL: One other thing. The State opened the door. The State introduced evidence not of convictions but the underlying crimes, which is doubly misleading to the jury. All these crimes, the fact that she brought in witnesses and proved up to two earlier offenses where he’s been found guilty, pled guilty, and the jury has to find out what finally happened....

II. The Punishment Trial Evidence

During the two-day punishment phase trial, the State called 16 witnesses. The witnesses testified about the circumstances of the appealed-from robbery, and about seven other robberies committed by appellant. Appellant testified and admitted he committed six of the robberies.

Appellant committed the appealed-from robbery on May 13, 1998 at the Eckerd Drug store located at Irvington and Cavalcade in Houston. The 17-year-old cashier testified that appellant approached the counter and told her to put the money from her register into a bag. When appellant approached the register, he had a t-shirt folded over his arm and it appeared he was concealing a gun. The cashier stated that she was shocked and scared by the robbery, and was unable to return to work for three days. During cross-examination, the cashier acknowledged appellant did not raise his voice or scream, and that he did not come over the counter toward her. During re-direct, the cashier described appellant as “polite.”

The State’s evidence about the seven other robberies showed each robbery occurred in much the same manner as the appealed-from robbery. All eight robberies occurred in Houston within a short time period, between May 3 and May 16, 1998, set forth chronologically as follows:

1. May 3, 1998: Subway Sandwich shop at 1-45 and FM 1960;

2. May 10, 1998: Eckerd Drug store at FM 1960 and Kukyndahl;

3. May 11, 1998: Eckerd Drug store at unspecified location;

4. May 13, 1998: The appealed-from robbery; Eckerd Drug store at Irving-ton and Cavalcade;

5. May 14, 1998: Eckerd Drug store at 11th and Yale;

6. May 15, 1998: Eckerd Drug store at Hammerly and Gessner;

7. May 15, 1998: Walgreen Drug store at 5306 West 34th Street; and

8. May 16, 1998: MacFrugal’s store on Long Point.

Appellant was arrested May 16.

Appellant’s estranged wife, Ginger Sun-bury, also testified on behalf of the State. Ginger stated appellant had hit her and slapped her on more than one occasion, and once he threw a steak knife at her back when she was holding their infant daughter. Ginger had obtained a protective order to keep appellant away from her. On cross-examination, Ginger acknowledged that appellant had agreed to sign the protective order, and that he had not been arrested when police responded to calls about the domestic disturbances.

During his own testimony, appellant, a then-43-year-old man, described a productive life until soon before his robbery spree. He stated that he came from a good family, had a good education, and graduated from high school. Appellant had earned his living in the construction business, beginning as a laborer and working his way up to superintendent of multimillion dollar projects. In 15 years, he had worked for five companies and had never been fired.

Appellant stated that he had been married twice and had two daughters — one from his first marriage in Atlanta and the other with his estranged wife, Ginger. He had paid $500 per month in child support for his daughter in Atlanta; he had always made the payments until six months preceding his arrest. Ginger had filed for divorce after he was arrested for the robberies and he was ordered to pay $800 per month in child support; however, he had not made any of those payments because he was in jail and could not earn any money there. Appellant agreed that he and Ginger had a bad marriage, but denied that he slapped or hit her.

Appellant testified that, with the exception of a 1985 arrest for the misdemeanor of public intoxication, he had never “been in trouble with the law” until the robbery spree. Appellant had a drinking problem most of his life, but had never been a “violent drunk.” His alcoholism had become an increasing problem in the last few years. He also had occasionally used “recreational drugs.” Appellant had periodically attended AA meetings and at one point had remained sober for two years, as well as five years at another time. He had also briefly entered two rehabilitation programs to overcome his drinking and drug problems.

Appellant said he took a major downturn when he used crack cocaine for the first time — approximately eight months before he committed the first robbery. Appellant explained that once he tried crack cocaine “he couldn’t put it down.” When using crack cocaine, he became increasingly angry and irrational. He also started to spend all of his money on crack cocaine. Appellant quit his job on May 1, 1998. On May 3, he robbed the first store to get money for crack cocaine; he stopped on May 16, the day he was arrested. He had never committed a robbery before then. He gave the police a videotaped confession soon after he was arrested.

Appellant expressed remorse and embarrassment for the robberies. He said he had confessed to the robberies he could recall committing. He explained that all of the robberies were essentially unplanned, and that he had been using crack cocaine the whole time. Appellant did not use a weapon; he had a garden hose nozzle under the t-shirt. While in jail, appellant was attending AA meetings and taking college courses. He hoped the jury would let him have probation, but he understood if they sent him to prison.

During cross-examination, appellant admitted that he had lied by failing to tell the jury he had been arrested in Georgia for driving while intoxicated in 1985 and 1987. Also, in 1993, a charge of theft had been brought against him and then dismissed in Georgia.

Appellant acknowledged that he did not identify all of the robberies in his confession to the police, but he then explained that he confessed to all of the robberies he could recall. He further acknowledged that he scared all of his robbery victims. Finally, he acknowledged that he violated the protective order issued on behalf of Ginger by going to her residence.

On re-direct, appellant clarified that the 1985 DWI in Georgia was merely a traffic stop for which he paid a $500 fine. Appellant also clarified that he had made child support payments for five and one-half years and that he had only recently gotten into arrears.

Additionally, three character witnesses testified on behalf of appellant. James E. Shear, owner of Shear Construction Company and one of appellant’s former employers, stated appellant was a good worker and that he would rehire him. Appellant had worked for him twice — once as a laborer, and most recently as a supervisor for two years. Mr. Shear had known appellant, appellant’s parents, and appellant’s siblings for 15 years. Mr. Shear lived near appellant’s parents. Mr. Shear was surprised by appellant’s robberies; he found them “hard to believe.”

A fellow supervisor when appellant worked for Shear Construction Company testified that appellant was a good worker and a good supervisor. Also, the supervisor and appellant had attended AA meetings together.

Jim Sunbury, appellant’s brother, testified they were raised in a “very, very warm and nice home life with two loving parents that supplied us with all [of] our needs and shelter and took care of us and it was, it was [a] very loving family.” Appellant had always been hard working. He had never known appellant to be violent. Appellant was a nice person who had helped people. Jim had noticed a change in appellant in the past year, especially when appellant’s marriage to Ginger deteriorated. Appellant seemed despondent. Jim had known his brother abused alcohol and believes he is an alcoholic, but had been unaware that he had used drugs.

The defense also called a court liaison officer, who testified about community supervision in general tenns.

Following the two-day punishment trial, the jury assessed punishment at confinement for 15 years. The trial court later granted the State’s motion to cumulate sentences, ordering that the 15-year sentence would begin to run after appellant had served the sentences in the two earlier robbery convictions.

III. Testimony Regarding Sentences in Other Robberies

As stated above, appellant sought to testify that he had already been convicted and sentenced in two of the robberies on which evidence was heard. In a single issue, appellant asserts that the trial court erred by refusing to permit this sentencing testimony.

A. Standard of Review

We review a trial court’s eviden-tiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Pierre v. State, 2 S.W.3d 439, 442 (Tex.App.—Houston [1st Dist.] 1999, pet. ref'd). We recognize that a trial court must be given wide latitude to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992); Pierre, 2 S.W.3d at 442. If the trial court’s evidentiary ruling is within the zone of reasonable disagreement, we may not disturb its ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).

B. Analysis

Section 3(a) of article 37.07 of the Code of Criminal Procedure, provides in relevant part:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code CRIm.P.Ann. art. 37.07, § 3(a) (Vernon Supp.2000) (emphasis added). The State explained to the trial court that because appellant had not been “finally convicted” of the two robberies previously tried (in light of the fact that the judgments had just been entered during the week before the trial in the present case), the State would not attempt to introduce evidence of the prior convictions. Rather, the State put on extraneous offense evidence to prove beyond a reasonable doubt that appellant had committed those two robberies, as well as the five other robberies that had not yet been tried to judgment. Appellant did not object to the State proceeding in this way. Rather, appellant objected only to the trial court’s refusal to allow appellant, in rebuttal, to put on evidence showing (1) that he had been convicted in two of the robberies, and (2) that as a result of the convictions, he had been assessed punishment of confinement in the penitentiary for 9 and 20 years, respectively.

The specific question presented for resolution is: When the trial court admits punishment evidence offered by the State to prove beyond a reasonable doubt that appellant committed a number of similar robberies within days of the robbery being tried, is rebuttal evidence offered by appellant to show the jury that he has already been assessed punishment for two of the other robberies a matter “relevant to sentencing” under section 3(a) of article 37.07?

In answering this question, we are guided by the recent case of Mendiola v. State, 21 S.W.3d 282 (Tex.Crim.App.2000), along with Rogers v. State, 991 S.W.2d 263 (Tex.Crim.App.1999). According to these cases, determining what is “relevant to sentencing” under section 3(a) of article 37.07 is a question of “what is helpful to the jury in determining the appropriate sentence in a particular case.” Mendiola, 21 S.W.3d at 285; Rogers, 991 S.W.2d at 265. In both cases, the court noted that “deciding what punishment to assess is a normative process, not intrinsically fact bound.” Id. Thus, in determining relevancy in the sentencing context, courts should consider “policy reasons — such as admitting the truth in sentencing, giving complete information for the jury to tailor an appropriate sentence for appellant, and the policy of optional completeness — in determining whether the evidence should be admissible.” Mendiola, 21 S.W.3d at 285.

In Mendiola, the defendant had been convicted of three counts of indecency with a child by sexual contact. 21 S.W.3d at 283. During the punishment phase, the State introduced extraneous offense evidence that appellant had also engaged in inappropriate conduct with another young girl. Id. In rebuttal, the defense unsuccessfully attempted to introduce evidence showing that, although the State indicted defendant for that extraneous offense, the State had then dismissed the indictment. Id. at 284. The Court of Criminal Appeals held that, in determining whether the rebuttal evidence should have been admitted as relevant to sentencing, the intermediate appellate court should have considered whether the rebuttal evidence would have been “helpful” to the jury in determining the appropriate sentence. Id. at 285.

In the present case, the State focused primarily on appellant’s string of eight robberies, in a two-week period. All but one of its 16 witnesses testified about the robberies. Appellant made it clear to the trial court that he was concerned that the jury was operating under the mistaken impression that he had not been punished for any of the robberies, and that the jury’s lack of complete information would result in a harsher sentence. Considering the policy reasons enumerated in Mendio-la at 21 S.W.3d 285, including the policy of optional completeness, we conclude the excluded evidence would have been helpful to the jury in determining the appropriate sentence for appellant.

Accordingly, we hold that the evidence of appellant’s two prior robbery convictions was “relevant to sentencing” under article 37.07, section 3(a), and the trial court abused its discretion when it excluded such evidence.

IV. Harm Analysis

Having concluded the trial court abused its discretion, we must conduct a harm analysis. Tex.R.App.P. 44.2. The error in excluding evidence in this case is a non-constitutional error under Rule 44.2(b). Accordingly, we must disregard the error and affirm if the error did not affect appellant’s substantial rights. Tex. R.App.P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d at 271; High v. State, 998 S.W.2d 642, 644 (Tex.App.—Houston [1st Dist.] 1999, pet. ref'd) (op. on remand). “A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

The range of possible punishment for appellant’s offense was between 2 and 20 years confinement, plus a fine not to exceed $10,000. See Tex.Penal Code Ann. §§ 12.33, 29.02 (Vernon 1994). Appellant sought community supervision.

There was evidence that appellant was a hard-working individual — a good worker and a good supervisor in the construction field — until he developed a crack cocaine habit. In the two weeks after quitting his job, appellant committed a string of eight robberies, and he was arrested. Appellant had never before been arrested for a crime of violence, and character witnesses testified that he was not a violent person. The jury heard the details of the eight robberies, but they did not know appellant had already received sentences of 9 years confinement from a jury, and 20 years confinement from a judge, in connection with two of the robberies. The jury, unaware that appellant had been punished for any of the robberies, sentenced appellant to 15 years confinement (5 years short of the maximum).

After examining the record as a whole, we lack fair assurance that the error in this case did not influence the jury’s assessment of punishment, or that it had but a slight effect. Accordingly, we sustain appellant’s sole issue.

We reverse the portion of the judgment imposing punishment and remand to the trial court for another punishment hearing. The judgment of conviction remains intact, not having been appealed.

      . Appellant testified that he did not recall committing this robbery.

      . Appellant testified that he did not recall committing this robbery.

      . Although Ginger Sunbury testified about domestic abuse, she testified briefly and almost incidentally in light of the non-stop robbery testimony.

      . We note this is not the only situation in which a defendant may be entitled to introduce evidence in rebuttal, while the State is not able to introduce the same evidence against the defendant. See, e.g., Hardie v. State, 807 S.W.2d 319, 321 n. 7 (Tex.Crim.App.1991) ("While we agree that evidence of an accused invoking his right to counsel may be admissible when offered by the defendant to rebut an inference of guilt, as demonstrating sobriety by virtue of the defendant having the presence of mind to request an attorney in such a situation, the fact remains that evidence of a defendant exercising his right to counsel cannot be used against him.”).

      .We note that the State would have been entitled to point out to the jury, through cross-examination, that the two convictions were not yet final, as well as the fact that the sentences were to run concurrently.