author: Justice FITZGERALD.

text:
    Thalia Lakeitha LINCOLN, Appellant, v. The STATE of Texas, Appellee.
    No. 05-08-01558-CR.
    Court of Appeals of Texas, Dallas.
    March 16, 2010.

      Stephanie Michelle Duecker, Allen, for appellant.
    John R. Roach Sr., Emily Johnson-Liu, Collin County District Attorneys, for the State.
    Before Justices FITZGERALD, MURPHY, and MYERS.
   OPINION

Opinion by

Justice FITZGERALD.

The trial court found Thalia Lakeitha Lincoln guilty of criminal mischief and assessed her punishment at two years’ confinement probated for five years, 120 days of community service, and restitution. Lincoln appeals, contending (1) the trial court convicted her without taking a plea, (2) the evidence was insufficient to support her conviction, and (3) the trial court sentenced her without a separate hearing on punishment. We affirm.

Lincoln and Robert Brooks had a son together three years before the incident underlying the criminal mischief charge. At trial, both conceded their relationship was contentious. On the day of the incident, Lincoln went to Brooks’s home to pick up their son for visitation. She rang the doorbell and knocked on the door repeatedly, but there was no answer. While she was knocking on the door, a custom glass panel in the door broke. Lincoln reported, and later claimed at trial, that the glass broke when her bracelet accidentally knocked against it. Lincoln was charged with and convicted of criminal mischief.

In her first issue, Lincoln contends the trial court committed fundamental error by convicting her without her entering a plea. “It is well settled in this state that a plea must be entered in every criminal case and if no plea is entered, the trial is a nullity, since there is no issue for the jury or the court.” Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App.1964). The reporter’s record of Lincoln’s trial does not include a plea. However, the judgment recites that she pleaded not guilty. Recitals in a judgment create a “presumption of regularity and truthfulness,” and these recitals are binding unless there is direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex.Crim.App.1984). A second presumption operates in these circumstances as well: unless the record affirmatively shows the contrary, our appellate rules require us to presume Lincoln pleaded to the indictment. See Tex.R.Ajpp. P. 44.2(c)(4).

Lincoln relies on this Court’s opinion in Ownby v. Harkins, 705 S.W.2d 788 (Tex.App.-Dallas 1986, orig. proceeding); however, Harkins’s procedural history was significantly different from the history of the ease before us. In Harkins, the trial court called the case for trial, but the prosecutor was not present in the courtroom. The trial court immediately solicited and granted a motion for directed verdict in favor of the defendant. Id. at 789. In a very real sense, the defendant’s issues were never joined. Instead, the result of the proceedings was solely a function of the conduct of the prosecutor and the trial court’s response to that conduct. The trial court subsequently signed a written order granting the motion for directed verdict. The order declared the State failed to appear and recited that the defendant had entered a plea of not guilty. Id. at 790. The State sought mandamus relief. Our opinion concluded:

Although the order of the trial court recites that [the defendant] entered his plea of not guilty, this recitation does not control because the statement of facts shows the contrary.... The statement of facts at trial affirmatively shows that no inquiry was made as to how [the defendant] wished to plead and he did not enter a plea. Because no plea was entered, the trial, including the action of the trial court in granting a motion for a directed verdict of not guilty, was a nullity.

Id. (citations omitted). We conditionally granted the writ.

Unlike the defendant in Harkins, Lincoln had a trial in which issues were fully contested, and it is apparent she took the position she was not guilty. Lincoln testified to her own version of events, asserting the damage to the door was not done purposefully. In closing, her attorney asked the court to find Lincoln not guilty, arguing the State had not proved beyond a reasonable doubt that Lincoln had broken the glass intentionally or knowingly. And Lincoln did not object — either at trial or after trial — to the court’s failure to take her plea.

The circumstances of Lincoln’s case are nearly identical to those recently addressed by this Court in Fournier v. State, No. 05-08-01413-CR, 2009 WL 3823395 (Tex.App.-Dallas Nov. 17, 2009, no pet.) (not designated for publication). In Four-nier, the defendant received a full trial on the aggravated assault charge against her, but the reporter’s record did not show her plea to the indictment. On appeal, Fournier argued she was convicted without the trial court taking her plea, and she relied on Harkins. We concluded that “given the applicable presumptions, the absence of objection by appellant, and the factual distinctions between this case and Har-kins, ... fundamental error did not occur.” Id. at *3.

We remain persuaded by the reasoning in Fournier. We have reviewed the entire record in Lincoln’s case, as we did in Fournier’s, and again we find nothing affirmatively establishing that the defendant did not enter a plea. A silent record will not suffice as an affirmative showing and thus will not overcome presumptions of regularity. Breazeale, 683 S.W.2d at 450 (absence of jury waiver in trial record insufficient to overcome presumption that judgment’s recital of jury waiver is true); Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App.1982) (absent affirmative showing jurors were not properly sworn, statute’s — later appellate rule’s — presumption that they were properly sworn prevails). When a judgment contains a recital, as it does in Lincoln’s case, “the burden is on the accused to establish otherwise, if [she] claims that the contrary is true.” Breazeale, 683 S.W.2d at 451. Lincoln failed to carry that burden. We overrule her first issue.

In her second issue, Lincoln challenges the legal and factual sufficiency of the evidence supporting her conviction. We apply well-known standards when reviewing challenges to the sufficiency of the evidence. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App.2004). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006). Evidence is factually in sufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. Under either analysis, the trier of fact is the sole judge of the witnesses’ credibility and is free to accept or reject any or all of the evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008).

Lincoln acknowledges she broke the glass in Brooks’s front door. But she testified the door glass was already cracked in the area of the break and that the glass broke through when her bracelet accidentally knocked against it. Lincoln argues, thus, that there was insufficient evidence she broke the glass intentionally or knowingly. See Tex. Penal Code Ann. § 28.03(a) (Vernon 2003) (requiring conduct be committed intentionally or knowingly).

Proof of mental state will almost always depend upon circumstantial evidence. Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no pet.). Circumstantial evidence alone can suffice to support a verdict. See Smith v. State, 965 S.W.2d 509, 515-16 (Tex.Crim.App.1998). Lincoln herself testified that she and Brooks had been in court a number of times concerning custody issues, the police had been called to Brooks’s house when she was there, and Brooks had been violent toward her in the past. The trial court could have reasonably inferred Lincoln had become frustrated or angry when Brooks was not there with their son for scheduled visitation. There was also evidence that significant force would have been necessary to put a hole through the thick glass and to bend the metal support behind the glass. Again, a rational factfin-der could have concluded that purposeful force was used to break the glass. Lincoln points to the fact that she reported the glass breakage to a security guard and tried to telephone Brooks to tell him as well. But Lincoln acknowledged that she had been admitted to Brooks’s gated community by the same security guard, who had recognized her. A factfinder could certainly infer Lincoln would have been identified and asked to explain the damage if she had not reported it. The trial court was free to disbelieve Lincoln’s story that she broke the glass accidentally. See Lancon, 253 S.W.3d at 707. Applying the proper standards, we conclude there is ample evidence supporting Lincoln’s conviction, including her mental state. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Roberts, 220 S.W.3d at 524. We overrule Lincoln’s second issue.

In her third issue, Lincoln complains the trial court sentenced her without affording her a separate punishment hearing. The record confirms that immediately after finding Lincoln guilty of criminal mischief, the trial court announced her sentence. The judge stated he would have a hearing to determine the amount of restitution due if the parties could not agree what the door was worth. Then he asked: “Is there anything else from either side?” Lincoln’s attorney answered: “No, Your Honor.” The trial court did hold the restitution hearing; Lincoln did not object to the lack of a punishment hearing or attempt to offer punishment evidence at that time. Further, Lincoln failed to raise the issue in a motion for new trial. Lincoln was entitled to a punishment hearing after her adjudication of guilt. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App.2001). However, her right to a separate punishment hearing is a statutory right that can be waived. See id. at 886. We conclude Lincoln failed to preserve her complaint, and we overrule her third issue.

We affirm the trial court’s judgment.

      . When the prosecutor did make an appearance, the judge stated:
      You’re required like anyone else to appear when a case is set, and your failure to appear is the reason a directed verdict was granted against you for the defendant.
      In the future when cases are set you will appear at the time when set or show cause. The Court is not here at your convenience. Your failure to appear has resulted in a verdict against you.

        Harkins, 705 S.W.2d at 789.


source: Caselaw Access Project

author: TERRY MeCALL, Justice.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY, Appellant, v. Sandra CRUZ, Individually and as Next Friend of Cesar Cruz, Narada Cruz, and Miguel Cruz, Appellee.
    No. 11-08-00118-CV.
    Court of Appeals of Texas, Eastland.
    March 18, 2010.

      Russell C. Beard, Johnna McArthur, Beard Law Firm, Abilene, Thomas F. Nye, Robert W. Clore, Gault, Nye, Quintana, L.L.P., Corpus Christi, for Appellant.
    Kevin B. Miller, Royce V. Bicklein, Law Offices of Miller & Bicklein, P.C., Odessa, Mark A. Cevallos, Law Offices of Miller & Bicklein, P.C., San Antonio, for Appellee.
    Panel consists of: WRIGHT, C.J., MeCALL, J„ and STRANGE, J.
   OPINION

TERRY MeCALL, Justice.

This case involves the calculation under Section 408.041 of the Texas Workers’ Compensation Act of a decedent’s average weekly wage for the thirteen weeks prior to his death. Tex. Lab.Code Ann. § 408.041(a) (Vernon 2006). The decedent, a welder, worked as an independent contractor and contracted with the employer to obtain workers’ compensation insurance. The contract provided that he would bill the company at the rate of “$19 per hour for equipment rental and supplies” and “$6.50 per hour for labor.” Thus, the calculation under Section 408.001 turns on what portion of the $25.50 hourly payment to decedent was “remuneration” for his services and what portion was “reimbursement” to him for use of equipment and supplies.

Based on the contract and Rule 128.1 of the Workers’ Compensation Rules, both the hearing officer and the appeals panel determined that his average weekly wage was $854. The widow filed suit in district court challenging the appeals panel’s decision and argued that the average weekly wage should include the profit her husband made from the use of his equipment. Her expert calculated the decedent’s hourly wage by estimating the decedent’s percentage of profit over three years and multiplying the average percentage of profit by $25.50 (the $19.00 plus $6.50). The jury adopted the expert’s calculation, and the trial court entered judgment that the average weekly wage was $581. We reverse and render judgment that the average weekly wage was $354. We reverse the trial court’s award of attorney’s fees and expenses and remand to the trial court for a determination of the appropriate attorney’s fees and expenses.

Background Facts

Jesus Cruz, a welder, worked as an independent contractor on projects for Wagner Manufacturing and Fabrication Company. He was killed in a motor vehicle accident in May 2008 while returning from a job he had performed for Wagner. Both parties agree that his average weekly wage should be calculated pursuant to Section 408.041(a) for the thirteen weeks prior to his death. Section 408.041(a).

Wagner provided oilfield welding services to its customers, generally at distant customer rig sites. It is not clear whether Wagner required its welders to have workers’ compensation insurance; however, it is clear that Wagner made its workers’ compensation insurance with Texas Mutual Insurance Company available to its welders. Sections 406.144 and 406.123 of the Workers’ Compensation Act allow independent contractors to agree to have their hiring contractor withhold the cost of workers’ compensation insurance coverage from the contract price. An agreement under these sections makes the hiring contractor the employer for purposes of our workers’ compensation laws. On the date of Cruz’s fatal accident, Wagner’s welders were operating under a form of contract with Wagner that allowed them to obtain workers’ compensation insurance through Wagner. Cruz signed his contract with Wagner in 2000.

The contract provided that Cruz was an independent subcontractor who would supply welding services utilizing his own equipment and supplies. Cruz agreed to bill Wagner at the rate of “$19 per hour for equipment rental and supplies” and “$6.50 per hour for labor.” The contract provided that, for every 15.385 hours the welder worked at Wagner’s request, Wagner would deduct $13.96 from his invoice to pay for the welder’s workers’ compensation coverage premium.

Although the Workers’ Compensation Act does not define the term “average weekly wage,” the Act defines “wages” as follows:

“Wages” includes all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration (emphasis added).

Section 401.011(43).

The Texas Workers’ Compensation Commission provided in Rule 128.1 that, in calculating the average weekly wage, an employee’s wage shall include: (1) all pecuniary wages (as defined by Rule 126.1) paid to the employee and (2) all nonpecuni-ary wages (as defined by Rule 126.1) paid prior to the compensable injury. 28 Tex. Ajdmin. Code § 128.1(b)(1), (2). Rule 126.1 provides examples of pecuniary wages and nonpecuniary wages. Directly in point for this case, Rule 128.1(c) expressly provides that an employee’s wage, for the purpose of calculating the average weekly wage, shall not include “payments made by an employer to reimburse the employee for the use of the employee’s equipment.” 28 Tex. Admin. Code § 128.1(c)(1).

The Texas Workers’ Compensation Commission’s rules have the same force and effect as statutes and are to be construed as statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999); H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597, 603 (Tex.App.-Austin 2000, pet. denied). Unless the rule is ambiguous, we are required to follow the rule’s clear language. Rodriguez, 997 S.W.2d at 254. We also defer to the Texas Workers’ Compensation Commission’s interpretation of its own rules if its interpretation is reasonable. Sanders v. Am. Protection Ins. Co., 260 S.W.3d 682, 684 (Tex.App.-Dallas 2008, no pet.).

In affirming the hearing officer, the appeals panel relied on Rule 128.1(c) in finding that the average weekly wage of Cruz during the thirteen-week period was $354:

Tex. W.C. Comm’n, 28 Tex. Admin. Code § 128.1(c)(1) (Rule 128.1(c)(1)) provides in pertinent part that AWW shall not include payments made by the employer to reimburse the employee for the use of the employee’s equipment, for paying helpers, for reimbursing actual expenses related to employment such as travel related expenses, or reimbursing mileage up to the state rate for mileage. The language of the contract in evidence is clear, $19.00 per hour was being paid as rental of the decedent’s equipment and as such, pursuant to Rule 128.1(c)(1), it is not to be included in the AWW.

Texas Workers’ Compensation Commission Appeals Panel No. 727, Appeal No. 040891 (May 26, 2004).

In a pretrial hearing, appellee argued that John Allan Dinger had testified in his deposition that he was of the opinion that Wagner could not hire a welder for $6.50 per hour if Wagner supplied the equipment; therefore, appellee reasoned that $6.50 could not be the actual hourly wage. The trial court indicated that it was this testimony that persuaded it to conclude that the hourly rate for Cruz’s labor must have been higher than $6.50. Thus, the trial court overruled Texas Mutual’s objections that a jury trial was not needed and expert testimony was not relevant because the $354 weekly wage amount was correct as a matter of law. Based on the jury verdict, the trial court reversed the appeals panel’s opinion and entered judgment that the average weekly wage was $581.

The Jury Trial

The Workers’ Compensation Act was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Funes v. Eldridge Elec. Co., 270 S.W.3d 666 (Tex.App.-San Antonio 2008, no pet.). The legislative goals for our workers’ compensation laws are found in Section 402.021. The legislature stated that injured employees are to be provided appropriate income benefits and medical benefits in a timely and cost-effective manner. Section 402.021 further states that the legislature wanted to minimize the likelihood of disputes and resolve them promptly and fairly. The jury trial in this case reflects the problems encountered when statutes and a contract between the parties are ignored.

Steve A. Kulawik testified as the expert for appellee. Although Kulawik admitted that he did not know the legal definition of “wage” under the Texas Workers’ Compensation Act and had not done any workers’ compensation work, he expressed his opinion that Cruz’s hourly wage was $10.68. Kulawik testified that he took Cruz’s profit shown in the Schedule C in Cruz’s tax returns for 2001, 2002, and 2003; added back in the depreciation expense to get a percentage of profit; averaged the percentage of profit for the three years; and then multiplied that average percentage of profit by $25.50 to arrive at the hourly wage of $10.68. He stated that the profit percentages were 31.22% for 2001, 35.6% for 2002, and 58.62% for the partial year of 2003. The average profit margin by his calculation was 41.81%. Ku-lawik speculated that Cruz’s profit margin was higher in 2003 because he either carried some supplies over or they were provided by Wagner. However, Dinger testified that Wagner did not provide supplies to Cruz and that part of the $19 per hour in the contract was to reimburse Cruz for his supplies.

Dinger testified that he completed the final wage statement for Cruz that was submitted to Texas Mutual. The wage statement reflected that, for the thirteen-week period prior to Cruz’s death, Cruz earned gross wages of $4,602 for 708 hours of personal service. The average weekly wage of $354 can be derived by dividing the $4,602 by thirteen weeks; Dinger agreed with this calculation at trial. Wagner clearly excluded the $19 per hour for equipment rental and supplies.

Dinger also testified that Cruz’s tax returns showed a loss of $2,889 and income of $12,395 in 2000, a profit of $21,231 and income of $74,737 in 2001, and a profit of $15,959 and income of $50,398 in 2002. Despite Kulawik’s method of adding back in depreciation to obtain Cruz’s profit, Dinger explained how depreciation works and how it is a deduction when profit is calculated.

Kulawik testified that he was asked to calculate in some reasonable way what Cruz’s hourly wage was and that “[t]he only way [he] could think to do that [was] by his profits and losses from his business.” Kulawik was not furnished Cruz’s tax return for 2000 that showed a loss. Kulawik admitted that he had not seen the contract between Cruz and Wagner before it was presented to him during the trial. He said several times that it was Dinger’s deposition testimony that he could not hire welders for $6.50 per hour that led him to believe that $6.50 was not the wage. Based on Kulawik’s testimony, the jury found that $581 was Cruz’s average weekly wage; that answer was based on the hourly wage of $10.68.

We provided this summary of the trial to demonstrate the complications of adopting appellee’s approach to the average weekly wage in cases similar to this one.

Standard of Review

The determination of Cruz’s average weekly wage is a matter of statutory interpretation. Statutory construction is a legal question that is reviewed de novo to ascertain and give effect to the legislature’s intent. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009). To discern that intent, we must begin with the “plain and common meaning of the statute’s words.” Id. We also consider the objective the legislature sought to achieve through the statute, as well as the consequences of a particular construction. Id. As stated, the Texas Workers’ Compensation Commission’s rules have the same force and effect as statutes and are to be construed as statutes. Rodriguez, 997 S.W.2d at 254.

Analysis

In its first three issues, Texas Mutual argues that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict because the average weekly wage was $354 as a matter of law, the judgment improperly included an amount paid to Cruz as reimbursement for his equipment in violation of Rule 128.1, and the judgment was improperly based on an estimate of Cruz’s profit margin.

Section 401.011(43) of the Workers’ Compensation Act defines “wages” to include “all forms of remuneration payable for a given period to an employee for personal services.” Rule 128.1 specifies that the term “wages,” for the purpose of calculating average weekly wage, includes “all pecuniary wages” paid to the employee. 28 Tex. Admin. Code § 128.1(b)(1). Rule 128.1(c)(1) expressly provides that an employee’s wage, for the purpose of calculating the average weekly wage, shall not include “payments made by an employer to reimburse the employee for the use of the employee’s equipment, for paying helpers, [or] for reimbursing actual expenses related to employment ” (emphasis added). 28 Tex. Admin. Code § 128.1(c)(1).

An agency rule is presumed valid, and the challenging party has the burden of proving that the rule is invalid. Lee v. Tex. Workers’ Comp. Comm’n, 272 S.W.3d 806, 813-14 (Tex.App.-Austin 2008, no pet.). We must defer to the Texas Workers’ Compensation Commission’s interpretation of its own rules, as long as its interpretation is reasonable. See Pub. Util. Comm’n of Tex. v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991); Sanders, 260 S.W.3d at 684. The legislature left it to the Texas Workers’ Compensation Commission to provide rules relating to what payments should be included in wages. Rule 128.1 is consistent with the Workers’ Compensation Act’s definition of wages as remuneration for personal services. Rule 126.1 gives examples of wages, and Rule 128.1 provides specific exclusions that are not to be included as wages. These rules are in harmony with the objectives of the Workers’ Compensation Act.

The Texas Workers’ Compensation Commission’s interpretation of Rule 128.1 has been reasonable. See Texas Workers’ Compensation Comm’n Appeals Panel No. 1, Appeal No. 92119, 1992 WL 358228 (May 4, 1992) (payments by employer to reimburse worker for use of worker’s equipment, i.e., her car, are not to be included in worker’s wage under the provisions of Rule 128.1); Texas Workers’ Compensation Comm’n Appeals Panel No. 12, Appeal No. 92197, 1992 WL 324277 (July 3, 1992). It has long been recognized that payment for reimbursement of expenses is not a form of remuneration. See Texas Workers’ Compensation Comm’n Appeals Panel No. 1, Appeal No. 92119, 1992 WL 358228. Thus, as recognized in Section 128.1(c)(1), “reimbursement” of expenses is not a form of “remuneration.” Therefore, we conclude that excluding payments for reimbursement as provided in Section 128.1(c)(1) for the purpose of determining an employee’s average weekly wage does not conflict with the definition of “wages” in Section 401.011(43) of the Workers’ Compensation Act.

Appellee argues that Section 401.011(43) of the Workers’ Compensation Act states that “wages are ‘all forms of remuneration payable for a given period’ ” and “any other advantage that can be estimated in money.” Section 401.011(43). Based on this language, appellee asserts that the intent of the legislature was that “all” and “any” income would be considered “wages.” Appellee contends that whether the $19 per hour is a “form of remuneration” or an “advantage that can be estimated in money” cannot be decided by reading the statute and was a fact question for the jury.

The purpose of the contract was to enable Cruz to obtain workers’ compensation insurance. The contract provided that Cruz “[could] present [his] bill to Wagner Manufacturing showing $19.00 per hour for equipment rental and supplies and $6.50 per hour for labor.” Although it may be true that Wagner might have been required to pay a higher hourly wage to employ welders who would use equipment supplied by Wagner, we cannot ignore the contract of the parties that specifically stated that $6.50 would be paid as an hourly wage and that the current workers’ compensation insurance premium based on that hourly wage was $13.96 for every 15.385 hours worked at Wagner’s request. The contract also stated that Cruz would “bill” Wagner $19 per hour for equipment rental and supplies. The use of the term “bill” in the contract supports the conclusion that the parties intended the $19 per hour payment to reimburse Cruz for expenses that he had incurred. Dinger testified that the $19 “[was] reimbursement for rental of truck, equipment and reimbursement of supplies.”

Appellee had the burden to establish Cruz’s average weekly wage. Tex. Employer’s Ins. Ass’n v. Bragg, 670 S.W.2d 712, 715 (Tex.App.-Corpus Christi 1984, writ ref' d n.r.e). Appellee attempted to show, through Kulawik’s “profit” testimony, that part of the $19 per hour payment was not made to reimburse Cruz for his equipment and supplies. Appellee has not provided authority for the argument that net profit should be used in calculating the average weekly wage.

Rule 128.1 is not ambiguous. The contract is clear. Parties should be allowed to include reasonable estimates of reimbursements in their contracts, and the amounts estimated as reimbursements should not be included in calculating the employee’s average weekly wage. Cruz and Wagner agreed that Wagner would pay Cruz $19 per hour to reimburse him for use of his equipment and supplies. The evidence did not show that the $19 per hour amount in the contract was not a reasonable estimate of Cruz’s reimbursable expenses, and Kulawik’s testimony provided no support for the jury’s finding that Cruz’s average weekly wage was $581.

The legislative goal of the Workers’ Compensation Act is to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Texas Mutual’s first three issues are sustained. We need not reach the fourth issue. Because we are reversing the trial court’s determination of average weekly wage, we will also sustain the fifth issue and reverse the trial court’s award of attorney’s fees and expenses. That issue will be remanded to the trial court.

This Court s Ruling

The judgment of the trial court is reversed. We render judgment that the average weekly wage for Cruz was $854. We also reverse and remand the issue of attorney’s fees and expenses to the trial court.

      . The Texas Workers’ Compensation Act is found in Tex. Lab.Code Ann. §§ 401.001-419.007 (Vernon 2006 & Supp. 2009).

      . The trial court denied Texas Mutual Insurance Company's motion for summary judgment.

      . The contract with Cruz indicated that Wagner required all subcontractors to provide it with an insurance certificate that stated that the subcontractor was covered by workers’ compensation insurance. However, at trial, John Allen Dinger of Wagner testified that the welder had an option whether to carry the workers’ compensation insurance.

      . On September 1, 2005, the Texas Workers’ Compensation Commission was abolished, and its rules and duties were transferred to the Department of Insurance, Division of Workers' Compensation. See Act of May 29, 2005, 79th Leg., R.S., ch. 265 §§ 8.001(b), 8.004(a), 2005 Tex. Gen. Laws 469, 607-08. The Division of Workers’ Compensation is now administered by the Commissioner of Workers' Compensation. Tex. Lab.Code Ann. § 402.00111(a) (Vernon 2006). This suit was filed on June 30, 2004. For convenience, we will refer to the agency as the Texas Workers’ Compensation Commission as it was then known.


author: G. ALAN WALDROP, Justice. Justice PATTERSON.

text:
    VERIZON NORTH INC., Appellant, v. Susan COMBS, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Attorney General of the State of Texas, Appellees.
    No. 03-08-00151-CV.
    Court of Appeals of Texas, Austin.
    May 22, 2009.
    Ray Langenberg, Mark W. Eidman, Doug Sigel, Scott, Douglass & McConnico, L.L.P., Austin, TX, for appellant.

      Paul H. Masters, Asst. Atty. Gen., Austin, TX, for appellee.
    Before Justices PATTERSON, PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

This is a sales and use tax refund suit. Appellant Verizon North Inc. asserts that certain computer software it purchased is not tangible personal property in accordance with the Texas Tax Code and applicable regulations, and seeks a refund of Texas sales and use tax paid on the purchase of the software. The district court ruled that the software is taxable personal property. We affirm the judgment of the district court.

Verizon purchased “SAP R/3” computer software (the “Software”) from SAP America, Inc. in June 1996 and paid $1,674,337.50 in Texas sales and use tax on the license to the Software. Thereafter, Verizon’s affiliate, GTE Data Services, Inc., spent approximately $100 million to configure, modify, and customize the Software so that it would perform the business functions for which it was purchased. On April 13, 2006, Verizon filed suit against appellees — the Texas Comptroller and the Texas Attorney General — for a refund of a portion of the sales and use tax paid in connection with the Software. See Tex. Tax Code Ann. § 112.151 (West 2008). On December 13, 2007, the district court denied Verizon’s claims and rendered judgment for appellees. The court issued findings of fact and conclusions of law in support of the judgment.

Sales tax is imposed on each sale in the State of a “taxable item,” see id. § 151.051 (West 2008), which is defined to include “tangible personal property,” see id. § 151.010 (West 2008), which in turn is defined to include computer programs, see id. § 151.009 (West 2008). The issue, then, is whether the Software constitutes a “computer program” under the applicable statutory and regulatory definitions, in which case it is subject to sales and use tax. The district court concluded that the Software is a computer program under the tax code. Verizon contends that the district court’s findings of fact do not support its judgment.

Section 151.0031 of the tax code defines a “computer program” as follows:

“Computer program” means a series of instructions that are coded for acceptance or use by a computer system and that are designed to permit the computer system to process data and provide results and information.

Id. § 151.0031 (West 2008). According to the district court’s findings of fact, the Software “consisted of several CDs, on which were stored thousands of computer programs,” and was, following installation, “ready for use” in accordance with SAP’s standard installation procedures and capable of performing multiple functions. Furthermore, the trial court found that it would be possible to perform configuration and no additional programming and run the Software as a computer program. Verizon does not challenge any of the findings of fact made by the trial court. Absent a challenge to findings of fact, we accept them as true. See Botter v. American Dental Ass’n, 124 S.W.3d 856, 860 n. 1 (Tex.App.-Austin 2003, no pet.) (“When a court issues findings of fact we are to assume that they are valid unless they are challenged by the appellant....”). The district court’s findings of fact sufficiently establish that the Software was coded for acceptance or use by a computer system and designed to permit the computer system to process data and provide results and information. Therefore, we conclude that, considering only the applicable statutory definition, the district court correctly concluded that the Software is a “computer program.” See Tex. Tax Code Ann. § 151.0031.

While the district court’s findings establish that the Software falls under the statutory definition of a “computer program,” Verizon argues the court’s findings do not establish that the Software falls under the applicable regulatory definition. Comptroller Rule 3.308(b)(1) states as follows:

“Computer program” means a series of instructions sold as a completed program which are coded for acceptance or use by a computer system and which are designed to permit the computer system to process data and provide results and information.

34 Tex. Admin. Code § 3.308(b)(1) (2009) (Tex. Comptroller of Pub. Accounts, Computers — Hardware, Software, Services, and Sales). According to Verizon, the phrase “sold as a completed program,” which does not appear in the statutory definition, is an additional requirement for a purchased computer program to be tangible personal property, and the Software does not meet this additional requirement. See Perry Homes v. Strayhorn, 108 S.W.3d 444, 448 (Tex.App.-Austin 2003, no pet.) (“The Comptroller is authorized to adopt rules that clarify and implement the legislation.” (citing Tex. Tax Code Ann. § 151.021 (West 2008))).

Appellees assert that the Comptroller has consistently interpreted the phrase “completed program” to distinguish between computer programs and contract programming services, see 12 Tex. Reg. 4787 (1987), such that even “non-executable software source code” that requires substantial engineering effort to become an end-user product could constitute a “completed program” under rule 3.308(b)(1) when sold, see Tex. Comptroller Ltr. Rui. 9609L1435A10 (Sept. 3, 1996). Verizon counters that such interpretation has not been applied uniformly by the Comptroller and, moreover, contradicts the language of the rule. See Texas Citrus Exch. v. Sharp, 955 S.W.2d 164, 169-70 (Tex.App.-Austin 1997, no pet.) (addressing challenge to Comptroller’s construction of its rule). According to Verizon, we must apply the common usage of “complete” as “possessing all necessary parts, items, components, or elements.” We need not resolve this dispute, however, because even if we applied Verizon’s desired construction — and thereby assumed that the term “completed program” refers to a computer program that is coded and designed such that no additional actions would be necessary for the program, upon installation, to operate as contemplated by the tax code section 151.0031 definition— we would conclude that the district court’s findings of fact are sufficient to support its judgment that the Software was a “computer program” under the tax code.

Verizon purchased the Software for its affiliate GTE Data Services’s use, and made extensive and costly modifications to the Software. Based on the Software not being completely ready for the intended use by GTE as of the time of purchase, Verizon contends that the district court’s findings of fact do not support a judgment that the Software was “sold as a completed program.” In support of its contention, Verizon first relies on the following findings of the district court:

37. GTE ... made configurations, modifications, extensions and customizations to the Software in Texas.
48. As sold to GTE by SAP, the Software did not permit GTE to provide results and information from GTE’s business functions for which the Software was purchased.
49. The configurations, modifications, extensions and customizations performed by Verizon North and GTE were necessary before the Software performed the business functions of GTE for which the software was purchased.
50. Verizon North and GTE performed the configurations, modifications, extensions and customizations so that the Software could perform[ ] GTE’s business functions, for which the Software was purchased.

Verizon argues that these findings of fact establish that the Software was not a “completed program” because “other necessary elements, components, and capabilities were missing and had to be created before the software was complete.”

However, the district court’s findings do not support this view. In its findings, the district court determined only that the Software was incomplete as to the specific functions for which the Software was purchased. The plain language of rule 3.308(b)(1) contemplates that software be sold as a completed program. 34 Tex. Admin. Code § 3.308(b)(1); see Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999) (“Unless the rule is ambiguous, we follow the rule’s clear language.”). Thus, the focus is on the code and design of the software as sold, not on the intended use by the purchaser. Absent express statutory language to the contrary, it would not be reasonable to interpret the rule so as to make the application of sales and use tax turn on the subjective intent of the buyer. Rule 3.308(b)(1) contemplates that software be a completed program as sold, regardless of how the buyer intends to use the program and regardless of what modifications might be necessary in order to increase or modify its functions for the individual needs of the buyer. Consequently, the district court’s findings of fact relied on by Verizon do not establish that the Software failed to comply with rule 3.308(b)(1).

Next, Verizon relies on the district court’s rejection of a finding and conclusion proposed by appellees. The district court struck the following proposed finding of fact: “The Software is comprised of a series of instructions sold as a computer program which are coded for acceptance or use by a computer system and which are designed to permit the computer system to process data and provide results and information.” In addition, the district court struck the following proposed conclusion of law: “The Software is a ‘computer program’ under the definition of Comptroller Rule 3.308(b)(1).” Verizon contends that the district court’s rejection of a finding of fact tracking rule 3.308(b)(1) and a conclusion of law that the Software complies with rule 3.308(b)(1) constitutes a conclusion that the Software does not comply with rule 3.308(b)(1). It is true that we cannot imply an essential element when the district court rejects a finding of that element. Compare Tex.R. Civ. P. 299 (“[Ojmitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment.”), with Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex.App.Houston [14th Dist.] 1999, pet. denied) (“[T]he presumption of validity will not supply by implication a missing element that has been specifically ‘requested.’”). However, if the findings the district court did make are sufficient to uphold the court’s judgment, the rejected finding cannot be considered essential to the judgment and, therefore, need not be implied in the first place. See Schismatic & Purported Casa Linda Presbyterian Church v. Grace Union Presbytery, Inc., 710 S.W.2d 700, 708 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) (erroneous finding not reversible error if not essential to disposition of case).

Even without a finding specifically so stating, several findings of fact by the district court indicate its determination that the Software was complete as sold:

12. The Software was contained on several CDs, on which were stored thousands of computer programs.
15. Verizon-authored documentation described the Software [as] “an off-the-shelf package.”
18. Following installation of the Software by SAP, the Software was “ready for use” in accordance with SAP’s standard installation procedures.
47. Verizon admitted that it would be possible to do zero computer programming and only configuration and run the Software as a computer program.

Moreover, the district court entered multiple findings of fact relating to the Software’s capability — following installation and prior to any changes made by Verizon or GTE to the Software — to process data and provide results and information. See supra note 1. We consider these findings to be sufficient to establish that the Software was “sold as a completed program” in accordance with rule 3.308(b)(1). Whereas findings of fact 48, 49, and 50 provide that the Software was not complete with regard to Verizon’s intended use, the above findings indicate that the Software was complete when sold for the use for which it was designed. As we have stated, rule 3.308(b)(1) contemplates that a computer program be a completed program as sold, regardless what modifications, extensions, and customizations that the purchaser deems necessary for its intended use of the program. See 34 Tex. Admin. Code § 3.308(b)(1).

We conclude that the district court’s findings of fact are sufficient under both tax code section 151.0031 and Comptroller Rule 3.308(b)(1) to support the court’s conclusion that the purchased Software is a “computer program” and, therefore, tangible personal property that is taxable. The judgment of the district court is affirmed.

Concurring Opinion by

Justice PATTERSON.

JAN P. PATTERSON, Justice, concurring.

Because Verizon contends only that the computer software program that it purchased does not fall within the Comptroller’s regulatory definition of “computer program” and not that such program falls outside the statutory definition of that term, I would affirm the judgment of the district court. Although section 151.021 of the tax code allows the Comptroller to adopt rules that clarify and implement the legislation, such rules must be consistent with the plain language of the statute. See generally Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450, 474 n. 24 (Tex.1995) (promulgated rules must be consistent with state constitution and statutes); Gerst v. Oak Cliff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.1968) (when exercising authority delegated by legislature, agency must adopt rules consistent with state constitution and statutes). Accordingly, I decline to adopt the majority’s analysis, and I concur in the judgment only.

      . In ils findings of fact, the district court determined that following installation and prior to any changes by Verizon or GTE Data Services, the Software was capable of (1) accepting user input, (2) creating a user account in the Software, (3) giving security rights to user accounts, (4) creating and maintaining a data table, (5) creating a client, (6) running data queries, (7) posting entries to a general ledger, (8) governing the balancing of accounting ledger entries, (9) reversing accounting ledger entries, (10) drawing objects to a screen, (11) sending data to a printer, (12) causing a disk to move, (13) sending commands to the operating system to read or write to a hard disk, (14) permitting access to the Software from remote locations, (15) employing client-server technology, and (16) employing Y2K technology.

      . There is no dispute that if we were instead to apply the Comptroller’s construction of rule 3.308(b)(1), the Software would be a "computer program” under the rule.

      . The district court also refused Verizon's proposed finding of fact that stated, "As sold to GTE by SAP, the software was not a completed computer program," and proposed conclusion of law that stated, "The software is not a ‘computer program’ under the definition of that term in Comptroller Rule 3.308(b)(1).” See Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) ("[Wjhere the trial court has been specifically requested to make a particular finding in support of its judgment and it fails to do so, that failure is tantamount to a refusal.”).

      . See 34 Tex. Admin. Code § 3.308(b)(1) (2009) (defining "computer program”).

      . See Tex. Tax Code Ann. § 151.0031 (West 2008) (defining "computer program”).


author: RICK STRANGE, Justice.

text:
    Wesley Don RHODES, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00005-CR.
    Court of Appeals of Texas, Eastland.
    Oct. 29, 2009.
    Rehearing Overruled Dec. 3, 2009.
    Discretionary Review Dismissed March 24, 2010.

      David L. Richards, Fort Worth, TX, for Appellant.
    Jason Cashon, District Attorney, Ste-phenville, TX, for Appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   MEMORANDUM OPINION

RICK STRANGE, Justice.

The jury convicted Wesley Don Rhodes of sexual assault of a child and assessed his punishment at twenty years confinement. We affirm.

I.Background Facts

R.K. alleged that Rhodes, her father, sexually assaulted her while they were deer hunting. R.K. testified that he forced her down on a bed; took off her clothes; and, while using a rubber glove as a condom, penetrated her. Rhodes denied R.K’s allegations. He contended that his wife was manipulating R.K. to gain an advantage in their pending divorce action.

II.Issues

Rhodes challenges his conviction with four issues. Rhodes contends that the trial court erred by admitting evidence of the victim’s good character, that the trial court erred by not holding an evidentiary hearing on an ineffective assistance of counsel claim raised in his motion for new trial, that the trial court deprived him of procedural due process when it ruled on his motion for new trial because the State’s response included an affidavit that he had no opportunity to rebut, and that his trial counsel was constitutionally ineffective.

III.Character Evidence

The State called Toby Cox as a character witness. Cox testified that he was an elementary school assistant principal but that he previously worked as a high school teacher and counselor and that R.K. was a high school student while he was a counselor. Cox testified over objection that R.K’s reputation for being a truthful and honest person was good. The State also called Stan McVey as a character witness. He was an assistant high school principal who knew R.K. through FFA. He too testified over objection that R.K. was a truthful person. Rhodes contends that the trial court erred by overruling his objection to Cox’s testimony because R.K.’s character had not been previously challenged. Rhodes does not challenge McVe/s testimony.

To determine if character evidence is admissible, the Texas Court of Criminal Appeals distinguishes between an attack on a witness’s character and an attack on the witness’s accuracy. See Michael v. State, 235 S.W.3d 723, 726 (Tex.Crim.App.2007). An attack on a witness’s character is one that contends the witness is a liar and, therefore, is wrong about “X.” A challenge to the witness’s accuracy is one that concedes the witness may normally be a truthteller but contends that the witness is wrong about “X.” Only when a witness’s character for truthfulness is attacked may it be rehabilitated with good character evidence. Id. Impeachment by a prior inconsistent statement is normally just an attack on the witness’s accuracy. Id. The test for trial courts is whether a i*easonable juror would believe that a witness’s character for truthfulness has been attacked by cross-examination, evidence from other witnesses, or statements of counsel. Id. at 728.

The State argues that Rhodes attacked R.K’s character several times. The State initially points to Rhodes’s opening statement. Rhodes’s counsel told the jury that the allegations against his client were false, that R.K’s mother was manipulating her for divorce purposes, that R.K.’s mother had been physically abusive with her, and that psychological disorders run in her mother’s family. To the extent these constitute a challenge to R.K. rather than her mother, they are not an attack on R.K.’s character.

The State next points to Rhodes’s cross-examination of the outcry witness, Clinton Lynn Barnett. During that examination, Rhodes established that Barnett did not believe R.K. had told him everything, that Barnett pressured R.K. to come forward with her allegation, and that R.K.’s story became bigger and more elaborate with time. This is not a challenge to R.K.’s character but to the accuracy of her allegation. Finally, the State points to Rhodes’s cross-examination of Don Bee-son. At the time of trial, Beeson was a county commissioner, but he previously served as a detective for the Johnson County Sheriffs Department and was responsible for investigating crimes against children. Rhodes pointed out the inconsistencies between what R.K. told Beeson in an interview and what Barnett had said in a statement. This is also a challenge to R.K’s accuracy and not a challenge to her character. Because Rhodes did not attack R.K.’s character for truthfulness, the trial court abused its discretion by allowing Cox to offer character evidence.

The erroneous admission of Cox’s testimony is nonconstitutional error. See Schutz v. State, 63 S.W.3d 442, 444-46 (Tex.Crim.App.2001) (improperly admitted expert testimony on the complainant’s truthfulness is nonconstitutional error). Nonconstitutional error must be disregarded unless it affects the appellant’s substantial rights. Tex.R.App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, the court has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). "When a trial court eiTs by improperly admitting evidence, an appellate court determines the likelihood that the error adversely affected the jury’s decision by considering everything in the record, including: (1) testimony or physical evidence admitted for the juiy’s consideration; (2) the nature of the evidence supporting the verdict; (3) the character of the alleged error and how it might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the State’s theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State emphasized the error. Haley v. State, 173 S.W.3d 510, 518-19 (Tex.Crim.App.2005).

Cox’s testimony was brief, constituting less than three pages of the record. The majority of that testimony consisted of Cox identifying himself and explaining how he knew R.K. Of relevance to this appeal are only two questions. Cox was asked if he was familiar with R.K.’s reputation for veracity and if that reputation was good. He answered both questions affirmatively without elaboration.

There was considerable testimony supporting the juiy’s verdict. R.K. testified that her father began assaulting her when she was eleven. In October 2005, during youth deer season, she and her father went hunting with other family members. They arrived at the campsite first and ate lunch. He then held her down on the bed and took her clothes off. He used a rubber glove as a condom and penetrated her. She did not say anything about this to her other family members when they arrived at the campsite or to anyone else at first, but she told her boyfriend in November 2006. She then told her mother. R.K. testified that her mother confronted her father, that her father essentially admitted molesting her, and that he then left the house.

R.K.’s mother and brother confirmed that Rhodes confessed and apologized when confronted with R.K’s allegation and that he then left the house. R.K’s mother testified that Rhodes was scared and shaking after the confrontation and that he begged her not to call the police. Rhodes denied that he had assaulted R.K., denied asking his wife not to call the police, and denied confessing. His recollection was that his wife confronted him with R.K.’s allegation, that he was shocked and angry, and that he said to her and his son: “[I]s all you want to hear me say is, yes, I did, and — -because you held out on me.” He called his brother and nephew as witnesses, and both testified that R.K. did not act unusually at the deer lease.

Credibility was a key issue in this case because of the absence of corroborating evidence such as physical evidence or eyewitness testimony. The State’s closing argument primarily addressed R.K’s credibility but made only minimal reference to Cox’s testimony. That testimony was merely referenced as an additional reason why R.K. was believable.

Considering the record as a whole, we are left with a fair assurance that the trial court’s error influenced the jury only slightly. The testimony was brief, was not a principal part of the State’s case, and did not differ in any material manner from MeVey’s testimony. Judging the nature of the evidence supporting the verdict and the character of the error and its relationship with the remainder of the State’s evidence, the trial court’s error did not have a substantial and injurious effect or influence in determining the jury’s verdict or affect Rhodes’s substantial rights because the record does not support the conclusion that Cox’s testimony supplanted the jury’s credibility determination. C.f., Schutz, 63 S.W.3d at 445 (the danger posed by the erroneous admission of expert testimony on a witness’s credibility is that the jury could allow this to supplant its decision). Issue One is overruled.

IV. Motion for New Trial

Rhodes was sentenced on November 6, 2007. The trial court’s jurisdiction to consider a motion for new trial expired on January 22, 2008. Tex.R.App. P. 21.8(a). On December 4, Rhodes filed a motion for new trial and alleged that his trial counsel was constitutionally ineffective in a number of respects. That motion was supported by his own affidavit. Rhodes requested the trial court to hold a hearing on this motion. On January 17, the State filed a response. The State’s response included an unsworn written reply from Rhodes’s trial counsel to the ineffective assistance allegations. Rhodes objected to consideration of his motion without a hearing, contending that he had been given insufficient opportunity to marshal affidavits and to rebut trial counsel’s unsworn statement. On January 22, the State filed a supplemental response. That response included an affidavit from trial counsel, the substance of which was substantially similar to the initial unsworn written response. The trial court overruled Rhodes’s objection and denied his motion for new trial.

Rhodes acknowledges that the trial court is not obligated to hold an eviden-tiary hearing on a motion for new trial and that it has the authority to consider that motion solely on the basis of affidavits. See Tex.R.App. P. 21.7. But, Rhodes contends that the trial court’s decision to rely solely on affidavits denied him constitutional due process because that decision was not made until shortly before the trial court lost jurisdiction and because the trial court considered an affidavit filed by the State on the last day of its jurisdiction.

The Fourteenth Amendment of the United States Constitution forbids deprivation of life, liberty, or property by the State without due process of law. U.S. Const. amend. XIV. The Texas Constitution also requires due course of law. Tex. Const, art. I, § 19. At a minimum, due course requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Reed v. State, 269 S.W.3d 619, 624 (Tex.App.-San Antonio 2008, no pet.).

Courts utilize the three-part balancing test first announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether procedural due process has been violated. Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995). The factors to be balanced are:

(1) the private interest that will be affected by the official action;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. Rhodes’s challenge focuses on the second and third factors, contending that he was entitled to more notice that no hearing would be held and that he was entitled to additional opportunity to rebut his trial counsel’s affidavit.

As to Rhodes’s first contention, he was on notice that the trial court had the authority to conduct an evidentiary hearing or rule strictly based upon affidavits and that the trial court’s deadline for ruling was January 22. See Tex.R.App. P. 21.7, 21.8(a). The trial court was not required to give Rhodes greater notice of its decision to not hold an evidentiary hearing. Rhodes had sufficient opportunity to marshal affidavits in support of the contentions he made in his motion for new trial, was on notice that affidavits might be the only evidence considered by the court, and knew that those affidavits were needed no later than January 22.

Nor were Rhodes’s due process rights violated by his trial counsel’s affidavit. In this regard, it is important to note that the affidavit was in response to Rhodes’s allegations and that it was not an affirmative claim for relief. It is also noteworthy that, even though the affidavit itself was filed on January 22, Rhodes was given an unsworn version of that testimony on January 17 and that he was able to marshal several affidavits controverting his trial counsel’s statements. The disputed issues raised by the opposing affidavits largely concerned the conduct of Rhodes’s defense. The trial court was well-positioned to address that conflict having just presided over Rhodes’s trial. Finally, the trial court’s decision to proceed solely on affidavits does not foreclose Rhodes’s ability to pursue his ineffective assistance of counsel claim further through post-conviction procedures. The trial court did not violate Rhodes’s due process rights. Issues Two and Three are overruled.

V. Ineffective Assistance of Counsel

Rhodes contends that his trial counsel was constitutionally ineffective by not objecting to prejudicial outcry hearsay, by misrepresenting his legal background, by misrepresenting that it was illegal for him to contact any of the State’s witnesses prior to trial, and by misrepresenting his pretrial investigation. To determine if trial counsel rendered ineffective assistance, we must first determine whether Rhodes has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and Rhodes must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Crim.App.1991). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999).

A trial court’s ruling denying a motion for new trial is typically reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.2001). However, Rhodes’s allegations involve mixed questions of law and fact. We must afford almost total deference to a trial court’s determination of the historical facts and of mixed questions of law and fact that turn on the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

Rhodes’s allegations that his trial counsel was ineffective because of misrepresentations concerning his background, pretrial investigation, and the rules for contacting witnesses all involve disputed fact issues. The trial court did not abuse its discretion by finding trial counsel’s affidavit testimony more credible than the affidavits filed by Rhodes.

Rhodes also complains that trial counsel was constitutionally ineffective because he did not object to hearsay testimony. Rhodes does not identify the specific testimony but refers us to twenty pages of the record. His complaint has not been preserved. See Tex.R.App. P. 38.1(i). We have, however, reviewed the record. R.K.’s ex-boyfriend and mother were asked about statements R.K. made to them. Rhodes’s trial counsel elicited some hearsay testimony during his cross-examination of R.K’s ex-boyfriend. But by doing so, counsel established that R.K’s story became bigger with time and that the ex-boyfriend threatened to leave R.K. unless she came forward with her allegation. This was an appropriate trial strategy because it undermined both R.K.’s testimony and the ex-boyfriend’s testimony. The remainder of the testimony contains nothing significant that R.K. did not testify to herself. Thus, there was no harm. Issue Four is overruled.

VI. Holding

The judgment of the trial court is affirmed.

      . Rhodes attached several affidavits to his objection from friends and family members corroborating his ineffective assistance allegations.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    David Stuart BISHOP, Appellant, v. The STATE of Texas, Appellee.
    No. 04-68-00693-CR.
    Court of Appeals of Texas, San Antonio.
    Dec. 16, 2009.
    Discretionary Review Refused April 28, 2010.

      Patrick Barry Montgomery, Attorney at Law, San Antonio, TX, for Appellant.
    Susan D. Reed, Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

PHYLIS J. SPEEDLIN, Justice.

David Bishop appeals the trial court’s judgment convicting him of possession with intent to deliver methamphetamine in an amount greater than four grams and less than two hundred grams. We affirm the trial court’s judgment as modified.

Factual and PROCEDURAL Background

On February 8, 2007, David Bishop was driving an automobile with his former sister-in-law, Jessica Bishop, in the front seat as a passenger. Bishop turned right from a public roadway into the parking lot of a Motel 6 without displaying a turn signal. Officer Joshua Crumley observed Bishop make the illegal turn, and turned his patrol car into the motel parking lot. Bishop had exited his vehicle and was walking toward the motel when Officer Crumley called out for Bishop to stop and return to him. As Bishop approached, Crumley observed that Bishop had a lock-blade knife attached to his pants with a metal clip, which is prohibited by municipal ordinance. The officer asked Bishop for his driver’s license, but Bishop stated he had forgotten it. When Crumley asked Bishop’s name, he answered that it was “Hernandez;” Crumley did not think Bishop looked like a person named “Hernandez.” Crumley also asked Bishop his age and date of birth; the answer Bishop gave was not mathematically consistent. Crumley placed Bishop iri custody in his patrol car for safety reasons until he could verify his identity.

Officer Crumley then questioned Jessica Bishop, who told the officer Bishop’s true identity. Jessica was arrested for drugs and drug paraphernalia found inside her purse, and was placed in another officer’s patrol vehicle. When he ran Bishop’s true name, the officer discovered that Bishop had an active arrest warrant and a suspended driver’s license. Bishop’s vehicle was then searched by the officers pursuant to a search incident to an arrest. When the officers began to search Bishop’s vehicle, he started yelling loudly from inside the patrol car that they did not have permission to search the vehicle and it was an illegal search. During the vehicle search, the officers discovered a black shaving kit bag with baggies of methamphetamine and marihuana, and other drug paraphernalia, lying in plain view on the backseat floorboard. Jessica denied any knowledge of the contents of the black zipper bag, but admitted to possessing the contraband inside her purse.

Bishop was charged in a two-count indictment with possession with intent to deliver methamphetamine, and possession of methamphetamine. Jessica testified against Bishop at his trial, stating that the drugs and paraphernalia in the black zipper bag belonged to Bishop and she had seen him toss the black bag into the backseat when he exited the vehicle at the motel. A jury found Bishop guilty on both counts; however, the trial court recognized that Count II is a lesser included offense of Count I and stated that Count II would be disregarded. The trial court sentenced Bishop to ten years’ confinement, but suspended the sentence and placed Bishop on ten years’ community supervision. Bishop now appeals.

Analysis

In two issues, Bishop argues the trial court erred in permitting the State to introduce statements he made objecting to the officers’ search of his vehicle because they were an assertion of his Fourth Amendment rights, and erred in admitting the evidence seized from the vehicle because it was the product of an illegal search. See U.S. Const, amend. IV.

Statements Objecting to Vehicle Search

In his first issue, Bishop argues that he was asserting his Fourth Amendment right to be free from an unreasonable search and seizure when he yelled to the officers that they did not have permission to search his vehicle; he contends that such an assertion of a constitutional right is not admissible as evidence of guilt at trial and was harmful because the State used his statements to connect him to the contraband found inside the vehicle. Officer Crumley testified at trial that when he began searching the vehicle, Bishop started yelling that the officers did not have permission to search the vehicle, “telling me I couldn’t search the vehicle, it was an illegal search.” Even though Bishop was inside the patrol car with the windows rolled up, Crumley could hear him continuously yelling and screaming at them while they searched the car. At trial, Bishop objected to the admission of his statements on the basis they were an invocation of his Fourth Amendment right against illegal search and seizure; the court overruled the objection and admitted the statements but granted Bishop a running objection.

The State responds that Bishop’s statements were not an assertion of his Fourth Amendment rights because the officers did not ask Bishop for consent to search; rather, the officers were relying in good faith on the law in effect at the time of the search permitting a search of a vehicle’s passenger compartment incident to an arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant’s lawful arrest); see also State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999). We agree. The record is clear that the basis for the search of Bishop’s vehicle was not consent, but was incident to his arrest and the arrest of his passenger, Jessica. Because the search was not a consent-based search, Bishop’s statements were not an invocation of his Fourth Amendment right to decline permission for a search. Further, Bishop’s statements objecting to the search of his vehicle were made spontaneously, in the excitement of the moment, and were not the result of questioning; therefore, they were admissible as “res gestae” statements. See Tex. Code Crim. Proc. Ann. art. 38.22 § 5 (Vernon 2005).

Even if Bishop’s statements are construed as an invocation of his general Fourth Amendment right to be free from an unreasonable search, Bishop presents no direct authority holding it is error to admit statements attempting to invoke a Fourth Amendment right in a search incident to arrest context; he analogizes to cases excluding evidence of a defendant’s assertion of a constitutional right to counsel or to remain silent. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (denial of due process to use defendant’s post-arrest, post-Miranda silence for impeachment purposes); Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991) (relying on Doyle and stating that evidence of defendant’s invocation of right to counsel is inadmissible as evidence of his guilt). The State points out that the Court of Criminal Appeals subsequently clarified the scope of Doyle and Hardie by explaining that both cases involved erroneously informing a defendant that he had a constitutional right to counsel and then using his exercise of that right against him, and stating that “[tjhose decisions left open the question whether it was federal constitutional error to admit a defendant’s request for an attorney when he was not erroneously told that he had the right to counsel before taking a blood-alcohol test.” Griffith v. State, 55 S.W.3d 598, 606 (Tex.Crim.App.2001) (holding defendant’s due process rights were not violated by admission of evidence that he requested counsel because defendant was repeatedly informed he did not have the right to an attorney before taking a blood-alcohol test).

Bishop also relies on Reeves v. State, in which the Waco court of appeals held it was constitutional error to admit evidence that the defendant, who was not in custody, refused to consent to a warrantless search of his home, but found the error was harmless. See Reeves v. State, 969 S.W.2d 471, 494-95 (Tex.App.-Waco 1998, pet. ref'd); see also Powell v. State, 660 S.W.2d 842, 845 (Tex.App.-El Paso 1983, no pet.) (in context of custodial defendant’s refusal to consent to search of package, court held admitting evidence of the refusal was error, stating generally that invocation of constitutional rights “such as assistance of counsel, silence, or freedom from unreasonable searches may not be relied upon as evidence of guilt”). Both Reeves and Powell involved evidence of a defendant’s refusal to an officer’s request for consent to conduct a search. As noted, the officers did not ask Bishop to consent, and he therefore did not refuse consent, to a search of his vehicle; he was already in custody and under arrest when the officers searched the vehicle incident to his arrest. Bishop has not supplied this court with any authority holding that a custodial defendant’s statements objecting to a search incident to arrest may not be admitted into evidence because they constitute an invocation of the Fourth Amendment, and we have found no such authority. Accordingly, we decline to hold that it is constitutional error to admit a defendant’s statements objecting to a search incident to his arrest, as occurred in Bishop’s case. We overrule Bishop’s first issue.

Admission of Evidence Seized from Vehicle

In his second issue, Bishop complains that the trial court erred in admitting the evidence seized from his vehicle because it was the product of an illegal search in violation of the Fourth Amendment under the recent Supreme Court decision in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); U.S. Const. amend. IV. In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant’s arrest to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Gant, 129 S.Ct. at 1721, 1723. Bishop argues that the search of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car, and thus could not access his vehicle; in addition, he was under arrest for driving with a suspended license, an offense for which a vehicle search would not yield any evidence. See id. The State responds that Bishop failed to raise any objection to admission of the evidence in the trial court, and therefore has forfeited any complaint on appeal; alternatively, the State argues in part that even if the vehicle search was unlawful under Gant, exclusion of the evidence is not required because the officers acted in good faith.

With respect to waiver, Bishop acknowledges that he made no objection to admission of the evidence during trial, with his counsel affirmatively stating “no legal objection” and that the legality of the search as incident to arrest was “conceded.” It is well established that in order to preserve a complaint for appellate review, the defendant must have made a specific, timely objection or motion in the trial court, and must have obtained an adverse ruling from the trial court. Tex.R.App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999). This same rule applies in preserving constitutional issues for appellate review. Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App.2004). Further, an affirmative statement of “no objection” waives any error in the admission of evidence. De Hoyos v. State, 81 S.W.3d 853, 854 (Tex.App.-San Antonio 2002, no pet.).

Bishop argues that his failure to preserve error is excused in this instance because the complaint he now raises on appeal is based on Gant, which was issued by the Supreme Court after his trial had concluded. Bishop cites no authority in support of this assertion, merely stating that he was bound by “the decades of well-settled precedent following Belton” and “could not reasonably be required to lodge an objection predicated upon a case that had yet to be decided.” We disagree. To preserve the issue for appellate review, Bishop was required to raise an objection to admission of the evidence at trial. Tex. R.App. P. 33.1(a).

Further, Bishop did have a legitimate objection to raise at trial because, as the Supreme Court pointed out in Gant, the rationale for a search incident to arrest has always been based on the dual purposes of officer safety and preservation of evidence, and “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to arrest exception are absent. ...” Gant, 129 S.Ct. at 1716-17 (noting the limitations set forth in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), continue to define the boundaries of the search incident to arrest exception, and that Belton was based in large part on the assumption that items inside the passenger compartment of a vehicle are generally within the area into which an arrestee might reach). The Supreme Court in Gant did not overrule Belton; rather, it rejected a broad reading of Belton which would permit vehicle searches incident to every arrest, even when there is no possibility the arrestee could access the vehicle. Id. at 1718-19 (noting that such a broad reading of Belton would “untether the rule from the justifications underlying the Chimel exception— a result clearly incompatible with our statement in Belton that it ‘in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests’ ”). We conclude that Bishop failed to preserve his complaint. We overrule Bishop’s second issue.

Based on the foregoing analysis, we overrule Bishop’s issues on appeal. However, in order to correct a discrepancy between the trial court’s oral pronouncement and the written judgment, we set aside the trial court’s judgment as to Count II because it reflects a lesser included offense, and affirm the trial court’s judgment as to Count I.

      . In its brief, the State points out that, despite the trial court’s oral pronouncement that it would disregard the jury's guilty verdict on Count II, the clerk's record contains a judgment for Count I and a separate judgment for Count II. Accordingly, we set aside the judgment pertaining to Count II because, as noted by the trial court, it reflects a lesser included offense of Count I and thus violates Bishop’s double jeopardy rights. See Tex.R.App. P. 43.2(b); Littrell v. State, 271 S.W.3d 273, 279 (Tex.Crim.App.2008) (when defendant’s double jeopardy rights are violated by judgment convicting of both greater and lesser included offenses, the remedy is to modify the trial court's judgment to set aside the conviction and sentence for the lesser included offense while retaining the conviction and sentence for the greater offense); Ex parte Madding, 70 S.W.3d 131, 136-37 (Tex.Crim.App.2002) (where oral pronouncement of sentence by trial court and written judgment differ, the proper remedy is to modify the judgment to match the court's oral pronouncement). It makes no difference that the two sentences are concurrent; Bishop is entitled to have one judgment set aside. Littrell, 271 S.W.3d at 279 n. 33.

      . The record contains a motion to suppress evidence filed by Bishop, but no hearing was held on the motion and no ruling was made by the trial court.